Hilton v. Guyot, 159 U.S.

113 (1895)

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

A citizen and resident of this country who has his principal place of business here but has an agent in
a foreign country and is accustomed to purchase and store large quantities of goods there, and, in a
suit brought against him by a citizen and in a court of that country, appears and defends with the sole
object of preventing his property within the jurisdiction, but not in the custody of that court, from being
taken in satisfaction of any judgment that may be recovered against him there cannot, in an action
brought against him in this country upon such a judgment, impeach it for want of jurisdiction of his
person.

The admission at the trial in a court of a foreign country, according to its law and practice, of testimony
not under oath and without opportunity of cross-examination, and of documents with which the
defendant had no connection and which by our law would not be admissible against him, is not of itself
a sufficient ground for impeaching the judgment of that court in an action brought upon it in this country.

When an action is brought in a court of this country by a citizen of a foreign country against one of our
own citizens to recover a sum of money adjudged by a court of that country to be due from the defendant
to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having
jurisdiction of the cause and of the parties, and upon due allegations and proofs and opportunity to
defend against them, and its proceedings are according to the course of a civilized jurisprudence, and
are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of
the matter adjudged, and the judgment is conclusive upon the merits tried in the foreign court unless
some special ground is shown for impeaching it, as by showing that it was affected by fraud or prejudice
or that, by the principles of international law and by the comity of our own country, it is not entitled to
full credit and credit.

A judgment for a sum of money, rendered by a court of a foreign country, having jurisdiction of the
cause and of the parties, in a suit brought by one of its citizens against one of ours, is prima
facie evidence only, and not conclusive of the merits of the claim in an action brought here upon the
judgment if by the law of the foreign country, as in France, judgments of our own courts are not
recognized as conclusive.

The first of these two cases was an action at law, brought December 18, 1885, in the Circuit Court of
the United States for the Southern District of New York, by Gustave Bertin Guyot, as official liquidator
of the firm of Charles Fortin & Co., and by the surviving members of that firm, all aliens and citizens of
the Republic of France, against Henry Hilton and William Libbey, citizens of the United States and of
the State of New York and trading as copartners in the cities of New York and Paris and elsewhere
under the firm name of A. T. Stewart & Co. The action was upon a judgment recovered in a French
court at Paris, in the Republic of France, by the firm of Charles Fortin & Co., all of whose members
were French citizens, against Hilton & Libbey, trading as copartners, as aforesaid, and citizens of the
United States and of the State of New York.

The complaint alleged that in 1886 and since, during the time of all the transactions included in the
judgment sued on, Hilton and Libbey, as successors to Alexander T. Stewart and Libbey, under the
firm name of A. T. Stewart & Co., carried on a general business as merchants in the Cities of New York
and Paris and elsewhere, and maintained a regular store and place of business at Paris; that during
the same time, Charles Fortin & Co. carried on the manufacture and sale of gloves at Paris, and the
two firms had there large dealings in that business, and controversies arose in the adjustment of
accounts between them.

The complaint further alleged that between March 1, 1879, and December 1, 1882, five suits were
brought by Fortin & Co. against Stewart & Co. for sums alleged to be due, and three suits by Stewart
& Co. against Fortin & Co., in the Tribunal of Commerce of the Department of the Seine, a judicial
tribunal or court organized and existing under the laws of France, sitting at Paris and having jurisdiction
of suits and controversies between merchants or traders growingout of commercial dealings between
them; that Stewart & Co. appeared by their authorized attorneys in all those suits, and that, after full
hearing before an arbitrator appointed by that court and before the court itself, and after all the suits
had been consolidated by the court, final judgment was rendered on January 20, 1883, that Fortin &
Co. recover of Stewart & Co. various sums, arising out of the dealings between them, amounting to
660,847 francs, with interest, and dismissed part of Fortin & Co.'s claim.

The complaint further alleged that appeals were taken by both parties from that judgment to the Court
of Appeal of Paris, Third Section, an appellate court of record organized and existing under the laws of
the Republic of France and having jurisdiction of appeals from the final judgments of the Tribunal of
Commerce of the Department of the Seine, where the amount in dispute exceeded the sum of 1,500
francs, and that the said Court of Appeal, by a final judgment rendered March 19, 1884, and remaining
of record in the office of its clerk at Paris, after hearing the several parties by their counsel, and upon
full consideration of the merits, dismissed the appeal of the defendants, confirmed the judgment of the
lower court in favor of the plaintiffs, and ordered, upon the plaintiffs' appeal, that they recover the
additional sum of 152,528 francs, with 182,849 francs for interest on all the claims allowed, and 12,559
francs for costs and expenses.

The complaint further alleged that Guyot had been duly appointed by the Tribunal of Commerce of the
Department of the Seine official liquidator of the firm of Forth & Co., with full powers, according to law
and commercial usage, for the verification and realization of its property, both real and personal, and
to collect and cause to be executed the judgments aforesaid.

The complaint further alleged that the judgment of the Court of Appeals of Paris, and the judgment of
the Tribunal of Commerce, as modified by the judgment of the appellate court, still remain in full force
and effect;

"that the said courts respectively had jurisdiction of the subject matter of the controversies so submitted
to them, and of the parties, the said defendants having intervened, by their attorneys and counsel, and
applied for affirmative relief in both courts; that the plaintiffs have hitherto been unable to collect the
said judgments or any part thereof, by reason of the absence of the said defendants, they having given
up their business in Paris prior to the recovery of the said judgment on appeal, and having left no
property within the jurisdiction of the Republic of France out of which the said judgments might be
made;"

and that there are still justly due and owing from the defendants to the plaintiffs upon those said
judgments certain sums, specified in the complaint, and amounting in all to 1,008,783 francs in the
currency of the Republic of France, equivalent to $195,122.47.

The defendants, in their answer, set forth in detail the original contracts and transactions in France
between the parties and the subsequent dealings between them modifying those contracts, and alleged
that the plaintiffs had no just claim against the defendants, but that, on the contrary, the defendants,
upon a just settlement of the accounts, were entitled to recover large sums from the plaintiffs.

The answer admitted the proceedings and judgments in the French courts and that the defendants
gave up their business in France before the judgment on appeal, and had no property within the
jurisdiction of France out of which that judgment could be collected.

The answer further alleged that the Tribunal of Commerce of the Department of the Seine was a tribunal
whose judges were merchants, ship captains, stockbrokers, and persons engaged in commercial
pursuits, and of which Charles Fortin had been a member until shortly before the commencement of
the litigation.

The answer further alleged that in the original suits brought against the defendants by Fortin & Co., the
citations were left at their storehouse in Paris; that they were then residents and citizens of the State of
New York, and neither of them at that time, or within four years before, had been within, or resident or
domiciled within, the jurisdiction of that tribunal or owed any allegiance to France, but that they were
the owners of property situated in that country which would by the law of France have been liable to
seizure if they did not appear in that tribunal, and that they unwillingly, and solely for the purpose of
protecting that property, authorized and caused an agent to appear for them in those proceedings, and
that the suits brought by them against Fortin & Co. were brought for the same purpose, and in order to
make a proper defense, and to establish counterclaims arising out of the transactions between the
parties, and to compel the production and inspection of Fortin & Co.'s books, and that they sought no
other affirmative relief in that tribunal.

The answer further alleged that, pending that litigation, the defendants discovered gross frauds in the
accounts of Fourtin & Co., that the arbitrator and the tribunal declined to compel Fortin & Co. to produce
their books and papers for inspection, and that, if they had been produced, the judgment would not
have been obtained against the defendants.

The answer further alleged that without any fault or negligence on the part of the defendants, there was
not a full and fair trial of the controversies before the arbitrator, in that no witness was sworn or affirmed;
in that Charles Fortin was permitted to make, and did make, statements not under oath containing many
falsehoods; in that the privilege of cross-examination of Fortin and other persons who made statements
before the arbitrator was denied to the defendants, and in that extracts from printed newspapers, the
knowledge of which was not brought home to the defendants, and letters and other communications in
writing between Fortin & Co. and third persons, to which the defendants were neither privy nor party,
were received by the arbitrator; that without such improper evidence, the judgment would not have
been obtained, and that the arbitrator was deceived and misled by the false and fraudulent accounts
introduced by Fortin & Co. and by the hearsay testimony given, without the solemnity of an oath and
without cross-examination, and by the fraudulent suppression of the books and papers.

The answer further alleged that Fortin & Co. made up their statements and accounts falsely and
fraudulently, and with intent to deceive the defendants and the arbitrator and the said courts of France,
and those courts were deceived and misled thereby; that owing to the fraudulent suppression of the
books and papers of Fortin & Co. upon the trial and the false statements of Fortin regarding matters
involved in the controversy, the arbitrator and the courts of France

"were deceived and misled in regard to the merits of the controversies pending before them, and
wrongfully decided against said Stewart & Co., as hereinbefore stated; that said judgment, hereinbefore
mentioned, is fraudulent, and based upon false and fraudulent accounts and statements, and is
erroneous in fact and in law, and is void; that the trial hereinbefore mentioned was not conducted
according to the usages and practice of the common law, and the allegations and proofs given by said
Fortin & Co., upon which said judgment is founded, would not be competent or admissible in any court
or tribunal of the United States, in any suit between the same parties involving the same subject matter,
and it is contrary to natural justice and public policy that the said judgment should be enforced against
a citizen of the United States, and that, if there had been a full and fair trial upon the merits of the
controversies so pending before said tribunals, no judgment would have been obtained against said
Stewart & Co."

"Defendants, further answering, allege that it is contrary to natural justice that the judgment
hereinbefore mentioned should be enforced without an examination of the merits thereof; that by the
laws of the Republic of France, to-wit, article 181 [121] of the Royal Ordinance of June 15, 1629, it is
provided namely:"

"Judgments rendered, contracts or obligations recognized, in foreign kingdoms and sovereignties, for
any cause whatever shall give rise to no lien or execution in our Kingdom. Thus, the contracts shall
stand for simple promises, and, notwithstanding such judgments, our subjects against whom they have
been rendered may contest their rights anew before our own judges."

"And it is further provided by the laws of France, by article 546 of the Code de Procedure Civile, as
follows:"

Judgments rendered by foreign tribunals shall be capable of execution in France only in the manner
and in the cases set forth by articles 2123 and 2128 of the Civil Code."

"And it is further provided by the laws of France, by article 2128 [2123] of the Code de Procedure Civile
[Civil Code]:"
" A lien cannot, in like manner, arise from judgments rendered in any foreign country, save only as they
have been declared in force by a French tribunal, without prejudice, however, to provisions to the
contrary, contained in public laws and treaties."

"[And by article 2128 of that Code: 'Contracts entered into in a foreign country cannot give a lien upon
property in France if there are no provisions contrary to this principle in public laws or in treaties.']"

"That the construction given to said statutes by the judicial tribunals of France is such that no comity is
displayed towards the judgments of tribunals of foreign countries against the citizens of France, when
sued upon in said courts of France, and the merits of the controversies upon which the said judgments
are based are examined anew, unless a treaty to the contrary effect exists between the said Republic
of France and the country in which such judgment is obtained. That no treaty exists between the said
Republic of France and the United States, by the terms or effect of which the judgments of either country
are prevented from being examined anew upon the merits, when sued upon in the courts of the country
other than that in which it is obtained. That the tribunals of the Republic of France give no force and
effect, within the jurisdiction of the said country, to the duly rendered judgments of courts of competent
jurisdiction of the United States against citizens of France, after proper personal service of the process
of said courts is made thereon in this country."

The answer further set up, by way of counterclaim and in detail, various matters arising out of the
dealings between the parties, and alleged that none of the plaintiffs had since 1881 been residents of
the State of New York, or within the jurisdiction of that state, but the defendants were, and always had
been, residents of that state.

The answer concluded by demanding that the plaintiffs' complaint be dismissed, and that the
defendants have judgment against them upon the counterclaims, amounting to $102,942.91.

The plaintiffs filed a replication to so much of the answer as made counterclaims, denying its allegations
and setting up in bar thereof the judgment sued on.

The defendants, on June 22, 1888, filed a bill in equity against the plaintiffs setting forth the same
matters as in their answer to the action at law and praying for a discovery and for an injunction against
the prosecution of the action. To that bill a plea was filed setting up the French judgments, and upon a
hearing, the bill was dismissed. 42 F. 249. From the decree dismissing the bill an appeal was taken,
which is the second case now before this Court.

The action at law afterwards came on for trial by a jury, and the plaintiffs put in the records of the
proceedings and judgments in the French courts, and evidence that the jurisdiction of those courts was
as alleged in the complaint and that the practice followed and the method of examining the witnesses
were according to the French law, and also proved the title of Guyot as liquidator.

It was admitted by both parties that for several years prior to 1876, the firm of Alexander T. Stewart &
Co., composed of Stewart and Libbey, conducted their business as merchants in the City of New York,
with branches in other cities of America and Europe; that both partners were citizens and residents of
the City and State of New York during the entire period mentioned in the complaint, and that in April,
1876, Stewart died, and Hilton and Libbey formed a partnership to continue the business under the
same firm name, and became the owners of all the property and rights of the old firm.

The defendants made numerous offers of evidence in support of all the specific allegations of fact in
their answer, including the allegations as to the law and comity of France. The plaintiffs, in their brief
filed in this Court, admitted that most of these offers "were offers to prove matters in support of the
defenses and counterclaims set up by the defendants in the cases tried before the French courts, and
which, or most of which, would have been relevant and competent if the plaintiffs in error are not
concluded by the result of those litigations, and have now the right to try those issues, either on the
ground that the French judgments are only prima facie evidence of the correctness of those judgments,
or on the ground that the case is within the exception of a judgment obtained by fraud."

The defendants, in order to show that they should not be concluded by having appeared and litigated
in the suits brought against them by the plaintiffs in the French courts, offered to prove that they were
residents and citizens of the State of New York, and neither of them had been, within four years prior
to the commencement of those suits, domiciled or resident within the jurisdiction of those courts; that
they had a purchasing agent and a storehouse in Paris, but only as a means or facility to aid in the
transaction of their principal business, which was in New York, and they were never otherwise engaged
in business in France; that neither of them owed allegiance to France, but they were the owners of
property there which would, according to the laws of France, have been liable to seizure if they had not
appeared to answer in those suits; that they unwillingly, and solely for the purpose of protecting their
property within the jurisdiction of the French tribunal, authorized an agent to appear, and he did appear
in the proceedings before it, and that their motion to compel an inspection of the plaintiffs' books, as
well as the suits brought by the defendants in France, were necessary by way of defense or
counterclaim to the suits there brought by the plaintiffs against them.

Among the matters which the defendants alleged and offered to prove in order to show that the French
judgments were procured by fraud were that Fortin & Co., with intent to deceive and defraud the
defendants, and the arbitrator and the courts of France, entered in their books, and presented to the
defendants, and to the French courts, accounts bearing upon the transactions in controversy which
were false and fraudulent, and contained excessive and fraudulent charges against the defendants in
various particulars, specified; that the defendants made due application to the Tribunal of Commerce
to compel Fortin & Co. to allow their account books and letter books to be inspected by the defendants,
and the application was opposed by Fortin & Co., and denied by the tribunal; that the discovery and
inspection of those books were necessary to determine the truth of the controversies between the
parties; that before the Tribunal of Commerce, Charles Fortin was permitted to and did give in evidence
statements not under oath relating to the merits of the controversies there pending, and falsely
represented that a certain written contract made in 1873 between Stewart & Co. and Fortin & Co.
concerning their dealings was not intended by the parties to be operative according to its terms, and in
support of that false representation made statements as to admissions by Stewart in a private
conversation with him, and that the defendants could not deny those statements, because Stewart was
dead, and they were not protected from the effect of Fortin's statements by the privilege of cross-
examining him under oath, and that the French judgments were based upon false and fraudulent
accounts presented and statements made by Fortin & Co. before the Tribunal of Commerce during the
trial before it.

The records of the judgments of the French courts, put in evidence by the plaintiffs, showed that all the
matters now relied on to show fraud were contested in and considered by those courts.

The plaintiffs objected to all the evidence offered by the defendants on the grounds that the matters
offered to be proved were irrelevant, immaterial, and incompetent; that in respect to them the
defendants were concluded by the judgment sued on and given in evidence, and that none of those
matters, if proved, would be a defense to this action upon that judgment.

The court declined to admit any of the evidence so offered by the defendants, and directed a verdict
for the plaintiffs in the sum of $277,775.44, being the amount of the French judgment and interest. The
defendants, having duly excepted to the rulings and direction of the court, sued out a writ of error.

The writ of error in the action at law and the appeal in the suit in equity were argued together in this
Court in January, 1894, and, by direction of the Court, were reargued in April, 1894, before a full Bench.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the Court.

These two cases -- the one at law and the other in equity -- of Hilton v. Guyot, and the case of Ritchie
v. McMullen, which has been under advisement at the same time, present important questions relating
to the force and effect of foreign judgments not hitherto adjudicated by this Court, which have been
argued with great learning and ability and which require for their satisfactory determination a full
consideration of the authorities. To avoid confusion in indicating the parties, it will be convenient first to
take the case at law of Hilton v. Guyot.

International law, in its widest and most comprehensive sense -- including not only questions of right
between nations, governed by what has been appropriately called the "law of nations," but also
questions arising under what is usually called "private international law," or the "conflict of laws," and
concerning the rights of persons within the territory and dominion of one nation by reason of acts,
private or public, done within the dominions of another nation -- is part of our law, and must be
ascertained and administered by the courts of justice as often as such questions are presented in
litigation between man and man, duly submitted to their determination.

The most certain guide, no doubt, for the decision of such questions is a treaty or a statute of this
country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon
the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to
do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the
courts must obtain such aid as they can from judicial decisions, from the works of jurists and
commentators, and from the acts and usages of civilized nations. Fremont v. United States, 17 How.
542, 58 U. S. 557; The Scotia, 14 Wall. 170, 81 U. S. 188; Respublica v. De Longchamps, 1 Dall. 111, 1
U. S. 116; Moultrie v. Hunt, 23 N.Y. 394, 396.

No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is
derived. The extent to which the law of one nation, as put in force within its territory, whether by
executive order, by legislative act, or by judicial decree shall be allowed to operate within the dominion
of another nation depends upon what our greatest jurists have been content to call "the comity of
nations." Although the phrase has been often criticized, no satisfactory substitute has been suggested.

"Comity," in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere
courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory
to the legislative, executive, or judicial acts of another nation, having due regard both to international
duty and convenience and to the rights of its own citizens or of other persons was are under the
protection of its laws.

MR. JUSTICE Story, in his Commentaries on the Conflict of Laws, treating of the question in what
department of the government of any state, in the absence of any clear declaration of the sovereign
will, resides the authority to determine how far the laws of a foreign state shall have effect, and
observing that this differs in different states according to the organization of the departments of the
government of each, says:

"In England and America, the courts of justice have hitherto exercised the same authority in the most
ample manner, and the legislatures have in no instance (it is believed) in either country interfered to
provide any positive regulations. The common law of both countries has been expanded to meet the
exigencies of the times as they have arisen, and so far as the practice of nations, or the jus gentium
privatum, has been supposed to furnish any general principle, it has been followed out."

Story's Conflict of Laws 23, 24.

Afterwards, speaking of the difficulty of applying the positive rules laid down by the Continental jurists,
he says that "there is indeed great truth" in these remarks of Mr. Justice Porter, speaking for the
Supreme Court of Louisiana:

"They have attempted to go too far to define and fix that which cannot, in the nature of things, be defined
and fixed. They seem to have forgotten that they wrote on a question which touched the comity of
nations, and that that comity is, and ever must be, uncertain; that it must necessarily depend on a
variety of circumstances which cannot be reduced to any certain rule; that no nation will suffer the laws
of another to interfere with her own to the injury of her citizens; that whether they do or not must depend
on the condition of the country in which the foreign law is sought to be enforced, the particular nature
of her legislation, her policy, and the character of her institutions; that in the conflict of laws it must often
be a matter of doubt which should prevail, and that, whenever a doubt does exist, the court which
decides will prefer the laws of its own country to that of the stranger."

Story's Conflict of Laws 28; Saul v. His Creditors (1827), 5 Martin (N.S.) 569, 596.

Again, Mr. Justice Story says:

"It has been thought by some jurists that the term comity is not sufficiently expressive of the obligation
of nations to give effect to foreign laws when they are not prejudicial to their own rights and interests.
And it has been suggested that the doctrine rests on a deeper foundation; that it is not so much a matter
of comity or courtesy as a matter of paramount moral duty. Now, assuming that such a moral duty does
exist, it is clearly one of imperfect obligation, like that of beneficence, humanity, and charity. Every
nation must be the final judge for itself not only of the nature and extent of the duty, but of the occasions
on which its exercise may be justly demanded."

And after further discussion of the matter, be concludes:

"There is, then, not only no impropriety in the use of the phrase 'comity of nations,' but it is the most
appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation
within the territories of another."

Story's Conflict of Laws 33-38.

Chief Justice Taney, likewise, speaking for this Court, while Mr. Justice Story was a member of it, and
largely adopting his words, said:

"It is needless to enumerate here the instances in which, by the general practice of civilized countries,
the laws of the one will, by the comity of nations, be recognized and executed in another where the
rights of individuals are concerned. . . . The comity thus extended to other nations is no impeachment
of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when
contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice
between individuals, and to produce a friendly intercourse between the sovereignties to which they
belong, that courts of justice have continually acted upon it as a part of the voluntary law of nations. . .
. It is not the comity of the courts, but the comity of the nation, which is administered and ascertained
in the same way, and guided by the same reasoning, by which all other principles of municipal law are
ascertained and guided."

Bank v. Earle (1839), 13 Pet. 519, 38 U. S. 589; Story on Conflict of Laws 38.

Mr. Wheaton says:

"All the effect which foreign laws can have in the territory of a state depends absolutely on the express
or tacit consent of that state. . . . The express consent of a state to the application of foreign laws within
its territory is given by acts passed by its legislative authority, or by treaties concluded with other states.
Its tacit consent is manifested by the decisions of its judicial and administrative authorities, as well as
by the writings of its publicists. There is no obligation recognized by legislators, public authorities, and
publicists to regard foreign laws; but their application is admitted only from considerations of utility and
the mutual convenience of states, ex commitate, ob reciprocam utilitatem."

Wheaton's International Law (8th ed.) 78, 79.

"No sovereign is bound, unless by special compact, to execute within his dominions a judgment
rendered by the tribunals of another state, and if execution be sought by suit upon the judgment or
otherwise, the tribunal in which the suit is brought, or from which execution is sought, is on principle at
liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just
and equitable. The general comity, utility, and convenience of nations have, however, established a
usage among most civilized states by which the final judgments of foreign courts of competent
jurisdiction are reciprocally carried into execution, under certain regulations and restrictions, which differ
in different countries."

147.

Chancellor Kent says: "The effect to be given to foreign judgments is altogether a matter of comity in
cases where it is not regulated by treaty." 2 Kent Com. (6th ed.) 120.

In order to appreciate the weight of the various authorities cited at the bar, it is important to distinguish
different kinds of judgments. Every foreign judgment, of whatever nature, in order to be entitled to any
effect, must have been rendered by a court having jurisdiction of the cause, and upon regular
proceedings, and due notice. In alluding to different kinds of judgments, therefore, such jurisdiction,
proceedings, and notice will be assumed. It will also be assumed that they are untainted by fraud, the
effect of which will be considered later.
A judgment in rem, adjudicating the title to a ship or other movable property within the custody of the
court, is treated as valid everywhere. As said by Chief Justice Marshall:

"The sentence of a competent court proceeding in rem is conclusive with respect to the thing itself, and
operates as an absolute change of the property. By such sentence, the right of the former owner is lost
and a complete title given to the person who claims under the decree. No court of coordinate jurisdiction
can examine the sentence. The question, therefore, respecting its conformity to general or municipal
law can never arise, for no coordinate tribunal is capable of making the inquiry."

Williams v. Armroyd, 7 Cranch 423, 11 U. S. 432. The most common illustrations of this are decrees of
courts of admiralty and prize, which proceed upon principles of international law. Croudson v.
Leonard, 4 Cranch 434; Williams v. Armroyd, above cited; Ludlow v. Dale, 1 Johns.Cas. 16. But the
same rule applies to judgments in rem under municipal law. Hudson v. Guestier, 4 Cranch 293; Ennis
v. Smith, 14 How. 400, 45 U. S. 430; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 127 U. S. 291; Scott
v. McNeal, 154 U. S. 34, 154 U. S. 46; Castrique v. Imrie, L.R. 4 H.L. 414; Monroe v. Douglas, 4
Sandf.Ch. 126.

A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is
recognized as valid in every country unless contrary to the policy of its own law. Cottington's Case, 2
Swanston 326; Roach v. Garvan, 1 Ves.Sen. 157; Harvey v. Farnie, 8 App.Cas. 43; Cheely v.
Clayton, 110 U. S. 701. It was of a foreign sentence of divorce that Lord Chancellor Nottingham, in the
House of Lords, in 1678, in Cottington's Case, above cited, said:

"It is against the law of nations not to give credit to the judgments and sentences of foreign countries
till they be reversed by the law, and according to the form, of those countries wherein they were given,
for what right hath one kingdom to reverse the judgment of another? And how can we refuse to let a
sentence take place till it be reversed? And what confusion would follow in Christendom if they should
serve us so abroad, and give no credit to our sentences."

Other judgments, not strictly in rem, under which a person has been compelled to pay money, are so
far conclusive that the justice of the payment cannot be impeached in another country, so as to compel
him to pay it again. For instance, a judgment in foreign attachment is conclusive, as between the parties,
of the right to the property or money attached. Story on Conflict of Laws (2d ed.) 592a. And if, on the
dissolution of a partnership, one partner promises to indemnify the other against the debts of the
partnership, a judgment for such a debt, under which the latter has been compelled to pay it, is
conclusive evidence of the debt in a suit by him to recover the amount upon the promise of indemnity.
It was of such a judgment and in such a suit that Lord Nottingham said:

"Let the plaintiff receive back so much of the money brought into court as may be adequate to the sum
paid on the sentence for custom, the justice whereof is not examinable here."

Gold v. Canham (1679), 2 Swanst. 325, 1 Cas. in Ch. 311. See also Tarleton v. Tarleton, 4 M. & S.
20; Konitzky v. Meyer, 49 N.Y. 571.

Other foreign judgments which have been held conclusive of the matter adjudged were judgments
discharging obligations contracted in the foreign country between citizens or residents thereof. Story
on Conflict of Laws 330-341; May v. Breed, 7 Cush. 15. Such was the case cited at the bar
of Burroughs or Burrows v. Jamineau or Jemino, Mosely 1, 2 Strange 733, 2 Eq.Cas.Ab. p. 525, pl. 7,
12 Vin.Ab. p. 87, pl. 9 Sel.Cas. in Ch. 69; 1 Dickens 48.

In that case, bills of exchange drawn in London were negotiated, endorsed, and accepted at Leghorn,
in Italy, by the law of which an acceptance became void if the drawer failed without leaving effects in
the acceptor's hands. The acceptor accordingly, having received advices that the drawer had failed
before the acceptances, brought a suit at Leghorn against the last endorsees to be discharged of his
acceptances, paid the money into court, and obtained a sentence there by which the acceptances were
vacated as against those endorsees, and all the endorsers and negotiators of the bills, and the money
deposited was returned to him. Being afterwards sued at law in England by subsequent holders of the
bills, he applied to the Court of Chancery, and obtained a perpetual injunction. Lord Chancellor King,
as reported by Strange,
"was clearly of opinion that this cause was to be determined according to the local laws of the place
where the bill was negotiated, and, the plaintiff's acceptance of the bill having been vacated and
declared void by a court of competent jurisdiction, he thought that sentence was conclusive, and bound
the Court of Chancery here;" as reported in Viner, that "the court at Leghorn had jurisdiction of the thing
and of the persons;" and, as reported by Mosely, that though "the last endorsees had the sole property
of the bills, and were therefore made the only parties to the suit at Leghorn, yet the sentence made the
acceptance void against the now defendants and all others."

It is doubtful, at the least, whether such a sentence was entitled to the effect given to it by Lord
Chancellor King. See Novelli v. Rossi, 2 B. & A. 757; Castrique v. Imrie, L.R. 4 H.L. 414, 435; 2 Smith's
Lead.Cas. (2d ed.) 450.

The remark of Lord Hardwicke, arguendo, as Chief Justice, in Boucher v. Lawson (1734) that "the
reason gone upon by Lord Chancellor King, in the case of Burroughs v. Jamineau, was certainly right
that where any court, whether foreign or domestic, that has the proper jurisdiction of the cases makes
a determination, it is conclusive to all other courts," evidently had reference, as the context shows, to
judgments of a court having jurisdiction of the thing, and did not touch the effect of an executory
judgment for a debt. Cas.temp.Hardw. 85, 89; Cunningham 144, 148.

In former times, foreign decrees in admiralty in personam were executed, even by imprisonment of the
defendant, by the court of admiralty in England, upon letters rogatory from the foreign sovereign, without
a new suit. Its right to do so was recognized by the court of King's Bench in 1607 in a case of habeas
corpus, cited by the plaintiffs, and reported as follows:

"If a man of Frizeland sues an Englishman in Frizeland before the governor there, and there recovers
against him a certain sum, upon which the Englishman, not having sufficient to satisfy it, comes into
England, upon which the governor sends his letters missive into England, omnes magistratus infra
regnum Angliae rogans, to make execution of the said judgment, the judge of the admiralty may execute
this judgment by imprisonment of the party, and he shall not be delivered by the common law, for this
is by the law of nations that the justice of one nation should be aiding to the justice of another nation,
and for one to execute the judgment of the other, and the law of England takes notice of this law, and
the judge of the admiralty is the proper magistrate for this purpose, for he only hath the execution of
the civil law within the realm. Pasch. 5 Jac.B.R., Weir's Case, resolved upon a habeas corpus and
remanded."

1 Rol.Ab. p. 530, pl. 12; 6 Vin.Ab. p. 512, pl. 12. But the only question there raised or decided was of
the power of the English court of admiralty, and not of the conclusiveness of the foreign sentence, and
in later times the mode of enforcing a foreign decree in admiralty is by a new libel. See The City of
Mecca, 5 P.D. 28, 6 P.D. 106.

The extraterritorial effect of judgments in personam at law or in equity may differ according to the parties
to the cause. A judgment of that kind between two citizens or residents of the country, and thereby
subject to the jurisdiction in which it is rendered, may be held conclusive as between them everywhere.
So if a foreigner invokes the jurisdiction by bringing an action against a citizen, both may be held bound
by a judgment in favor of either, and if a citizen sues a foreigner and judgment is rendered in favor of
the latter, both may be held equally bound. Ricardo v. Garcias, 12 Cl. & Fin. 368; The
Griefswald, Swabey 430, 435; Barber v. Lamb, 8 C.B. (N.S.) 95; Lea v. Deakin, 11 Bissell 23.

The effect to which a judgment, purely executory, rendered in favor of a citizen or resident of the
country, in a suit there brought by him against a foreigner, may be entitled in an action thereon against
the latter in his own country, as is the case now before us, presents a more difficult question, upon
which there has been some diversity of opinion.

Early in the last century, it was settled in England that a foreign judgment on a debt was considered
not like a judgment of a domestic court of record, as a record or a specialty, a lawful consideration for
which was conclusively presumed, but as a simple contract only.

This clearly appears in Dupleix v. De Roven (1705), where one of two merchants in France recovered
a judgment there against the other for a sum of money, which not being paid, he brought a suit in
chancery in England for a discovery of assets and satisfaction of the debt, and the defendant pleaded
the statute of limitations of six years, and prevailed, Lord Keeper Cowper saying:

"Although the plaintiff obtained a judgment or sentence in France, yet here the debt must be considered
as a debt by simple contract. The plaintiff can maintain no action here but an indebitatus assumpsit or
an insimul computassent, so that the statute of limitations is pleadable in this case."

2 Vernon 540.

Several opinions of Lord Hardwicke define and illustrate the effect of foreign judgments when sued on
or pleaded in England.

In Otway v. Ramsay (1736), in the King's Bench, Lord Hardwicke treated it as worthy of consideration
"what credit is to be given by one court to the courts of another nation, proceeding both by the same
rules of law," and said: "It is very desirable in such case that the judgment given in one kingdom should
be considered as res judicata in another." But it was held that debt would not lie in Ireland upon an
English judgment, because "Ireland must be considered as a provincial kingdom, part of the dominions
of the crown of England, but no part of the realm," and an action of debt on a judgment was local. 4 B.
& C. 414-416, note; s.c., 14 Vin.Ab. 569, pl.;, 2 Stra. 1090.

A decision of Lord Hardwicke as Chancellor was mentioned in Walker v. Witter (1778), 1 Doug. 1, 6,
by Lord Mansfield, who said:

"He recollected a case of a decree on the chancery side in one of the courts of great sessions in Wales,
from which there was an appeal to the House of Lords, and the decree affirmed there. Afterwards, a
bill was filed in the Court of Chancery, on the foundation of the decree so affirmed, and Lord Hardwicke
thought himself entitled to examine into the justice of the decision of the House of Lords, because the
original decree was in the court of Wales, whose decisions were clearly liable to be examined."

And in Galbraith v. Neville (1789), 1 Doug. 6, note, Mr. Justice Buller said:

"I have often heard Lord Mansfield repeat what was said by Lord Hardwicke in the case alluded to from
Wales, and the ground of his lordship's opinion was this: when you call for my assistance to carry into
effect the decision of some other tribunal, you shall not have it if it appears that you are in the wrong,
and it was on that account that he said he would examine into the propriety of the decree."

The case before Lord Hardwicke mentioned by Lord Mansfield would appear (notwithstanding the doubt
of its authenticity expressed by Lord Kenyon in Galbraith v. Neville) to have been a suit to recover a
legacy, briefly reported, with references to Lord Hardwicke's note book, and to the original record,
as Morgan v. Morgan (1737-1738), West.Ch. 181, 597; s.c., 1 Atk. 53, 408.

In Gage v. Bulkeley (1744), briefly reported in 3 Atk. 215, cited by the plaintiffs, a plea of a foreign
sentence in a commissary court in France was overruled by Lord Hardwicke, saying: "It is the most
proper case to stand for an answer, with liberty to except, that I ever met with." His reasons are fully
stated in two other reports of the case. According to one of them, at the opening of the argument, he
said:

"Can a sentence or judgment pronounced by a foreign jurisdiction be pleaded in this Kingdom to a

demand for the same thing in any court of justice here? I always thought it could not, because every
sentence, having its authority from the sovereign in whose dominions it is given, cannot bind the
jurisdiction of foreign courts, who own not the same authority, and have a different sovereign, and are
only bound by judicial sentence given under the same sovereign power by which they themselves act.
. . . But though a foreign sentence cannot be used by way of plea in the courts here, yet it may be taken
advantage of in the way of evidence. . . . You cannot in this Kingdom maintain debt upon judgment
obtained for money in a foreign jurisdiction, but you may on assumpsit in nature of debt, upon a simple
contract, and give the judgment in evidence, and have a verdict, so that the distinction seems to be,
where such foreign sentence is used as a plea to bind the courts here as a judgment, and when it is
made use of in evidence as binding the justice of the case only."

And afterwards, in giving his decision, he said:

"The first question is whether the subject matter of the plea is good. The second is whether it is well
pleaded. The first question depends upon this: whether the sentence or judgment of a foreign court can
be used by way of plea in a court of justice in England, and no authority, either at law or in equity, has
been produced to show that it may be pleaded, and therefore I shall be very cautious how I establish
such a precedent. . . . It is true such sentence is an evidence which may affect the right of this demand
when the cause comes to be heard, but if it is no plea in a court of law to bind their jurisdiction, I do not
see why it should be so here."

Ridgeway temp. Hardw. 263, 264, 270, 273. A similar report of his judgment is in 2 Ves.Sen. (Belt's
Supp.) 409, 410.

In Roach v. Garvan (1748), where an infant ward of the Court of Chancery had been married in France
by her guardian to his son before a French court, and the son "petitioned for a decree for cohabitation
with his wife, and to have some money out of the bank," Lord Hardwicke said, as to the validity of the
marriage:

"It has been argued to be valid, from being established by the sentence of a court in France having
proper jurisdiction, and it is true that, if so, it is conclusive, whether in a foreign court or not, from the
law of nations in such cases; otherwise, the rights of mankind would be very precarious and uncertain.
But the question is whether this is a proper sentence, in a proper cause, and between proper parties,
of which it is impossible to judge without looking further into the proceedings, this being rather the
execution of the sentence than the sentence itself."

And after observing upon the competency of the French tribunal and pointing out that restitution of
conjugal rights was within the jurisdiction of the ecclesiastical court, and not of the Court of Chancery,
he added: "Much less will I order any money out of the bank to be given him." 1 Ves.Sen. 157, 159. He
thus clearly recognized the difference between admitting the effect of a foreign judgment as
adjudicating the status of persons and executing a foreign judgment by enforcing a claim for money.

These decisions of Lord Hardwicke demonstrate that, in his opinion, whenever the question was of
giving effect to a foreign judgment for money in a suit in England between the parties, it did not have
the weight of a domestic judgment, and could not be considered as a bar or as conclusive, but only as
evidence of the same weight as a simple contract, and the propriety and justice of the judgment might
be examined.

In Sinclair v. Fraser (1771), the appellant, having as attorney in Jamaica made large advances for his
constituent in Scotland and having been superseded in office, brought an action before the Supreme
Court of Jamaica, and, after appearance, obtained judgment against him, and afterwards brought an
action against him in Scotland upon that judgment. The Court of Session determined that the plaintiff
was bound to prove before it the ground, nature, and extent of the demand on which the judgment in
Jamaica was obtained, and therefore gave judgment against him. But the House of Lords (in which, as
remarked by one reporter, Lord Mansfield was then the presiding spirit, acting in concert with or for the
Lord Chancellor in disposing of the Scotch appeals)

"ordered and declared that the judgment of the Supreme Court of Jamaica ought to be received as
evidence prima facie of the debt, and that it lies upon the defendant to impeach the justice thereof or
to show the same to have been irregularly obtained,"

and therefore reversed the judgment of the Court of Session. 2 Paton ix, 253; s.c., 6 Morison Dict.Dec.
4542; 1 Doug. 5, note. Accordingly, in Crawford v. Witten (1773), a declaration in assumpsit, in an
action in England upon a judgment recovered in the Mayor's Court of Calcutta, in Bengal, without
showing the cause of action there, was held good on demurrer. Lord Mansfield considered the case
perfectly clear. Mr. Justice Aston, according to one report, said: "The declaration is sufficient. We are
not to suppose it an unlawful debt," and, according to another report:

"They admitted the assumpsit by their demurrer. When an action comes properly before any court, it
must be determined by the laws which govern the country in which the action accrued."
And Mr. Justice Ashurst said: "I have often known assumpsit brought on judgments in foreign courts.
The judgment is a sufficient consideration to support the implied promise." Loft, 154; s.c., nom.
Crawford v. Whittal, 1 Doug. 4, note.

In Walker v. Witter (1778), an action of debt was brought in England upon a judgment recovered in
Jamacia. The defendant pleaded nil debet and nul tiel record. Judgment was given for the plaintiff, Lord
Mansfield saying:

"The plea of nul tiel record was improper. Though the plaintiffs had called the judgment a record, yet,
by the additional words in the declaration, it was clear they did not mean that sort of record to which
implicit faith is given by the courts of Westminster Hall. They had not misled the court nor the defendant,
for they spoke of it as a court of record in Jamaica. The question was brought to a narrow point, for it
was admitted on the part of the defendant that indebitatus assumpsit would have lain, and on the part
of the plaintiff that the judgment was only prima facie evidence of the debt. That being so, the judgment
was not a specialty, but the debt only a simple contract debt, for assumpsit will not lie on a specialty.
The difficulty in the case had arisen from not fixing accurately what a court of record is in the eye of the
law. That description is confined properly to certain courts in England, and their judgments cannot be
controverted. Foreign courts, and courts in England not of record, have not that privilege, nor the courts
in Wales, etc. But the doctrine in the case of Sinclair v. Fraser was unquestionable. Foreign judgments
are a ground of action everywhere, but they are examinable."

Justices Willes, Ashurst, and Buller concurred, the two latter saying that wherever indebitatus
assumpsit will lie, debt will also lie. 1 Doug. 1, 5, 6.

In Herbert v. Cook (1782), again, in an action of debt upon a judgment of an inferior English court, not
a court of record, Lord Mansfield said that it was "like a foreign judgment, and not conclusive evidence
of the debt." Willes 36, note.

In Galbraith v. Neville (1789), upon a motion for a new trial after verdict for the plaintiff in an action of
debt on a judgment of the Supreme Court of Jamaica, Lord Kenyon expressed "very serious doubts
concerning the doctrine laid down in Walker v. Witter that foreign judgments are not binding on the
parties here." But Mr. Justice Buller said:

"The doctrine which was laid down in Sinclair v. Fraser has always been considered as the true line
ever since -- namely that the foreign judgment shall be prima facie evidence of the debt, and conclusive
till it be impeached by the other party. . . . As to actions of this sort, see how far the court could go if
what was said in Walker v. Witter were departed from. It was there held that the foreign judgment was
only to be taken to be right prima facie -- that is, we will allow the same force to a foreign judgment that
we do to those of our own courts not of record. But if the matter were carried further, we should give
them more credit; we should give them equal force with those of courts of record here. Now a foreign
judgment has never been considered as a record. It cannot be declared on as such, and a plea of nul
tiel record, in such a case, is a mere nullity. How then can it have the same obligatory force? In short,
the result is this: that it is prima facie evidence of the justice of the demand in an action of assumpsit,
having no more credit than is given to every species of written agreement, viz., that it shall be
considered as good till it is impeached."

1 Doug. 6, note. And the court afterwards unanimously refused the new trial, because, "without entering
into the question how far a foreign judgment was impeachable, it was at all events clear that it was prima
facie evidence of the debt, and they were of opinionthat no evidence had been adduced to impeach
this."

5 East 475, note.

In Messing v. Massareene (1791), the plaintiff, having obtained a judgment against the defendants in
a French court, brought an action of assumpsit upon it in England, and, the defendants having suffered
a default, moved for a reference to a master, and for a final judgment on his report, without executing
a writ of inquiry. The motion was denied, Lord Kenyon saying: "This is an attempt to carry the rule
further than has yet been done, and, as there is no instance of the kind, I am not disposed to make a
precedent for it," and Mr. Justice Buller saying: "Though debt will lie here on a foreign judgment, the
defendant may go into the consideration of it." 4 T.R. 493.
In Bayley v. Edwards (1792), the judicial committee of the Privy Council, upon appeal from Jamaica,
held that a suit in equity pending in England was not a good plea in bar to a subsequent bill in Jamaica
for the same matter, and Lord Camden said:

"In Gage v. Bulkeley [evidently referring to the full report in Ridgeway, above quoted, which had been
cited by counsel], Lord Hardwicke's reasons go a great way to show the true effect of foreign sentences
in this country, and all the cases show that foreign sentences are not conclusive bars here, but only
evidence of the demand."

3 Swanston 703, 708, 710.

In Phillips v. Hunter (1795), the House of Lords, in accordance with the opinion of the majority of the
judges consulted and against that of Chief Justice Eyre, decided that a creditor of an English bankrupt,
who had obtained payment of his debt by foreign attachment in Pennsylvania, was liable to an action
for the money by the assignees in bankruptcy in England. But it was agreed on all hands that the
judgment in Pennsylvania and payment under it were conclusive as between the garnishee and the
plaintiff in that suit, and the distinction between the effect of a foreign judgment which vests title, and of
one which only declares that a certain sum of money is due, was clearly stated by Chief Justice Eyre
as follows: "This judgment against the garnishee in the court of Pennsylvania was recovered properly
or improperly. If, notwithstanding the bankruptcy, the debt remained liable to an attachment according
to the laws of that country, the judgment was proper; if, according to the laws of that country, the
property in the debt was divested out of the bankrupt debtor and vested in his assignees, the judgment
was improper. But this was a question to be decided, in the cause instituted in Pennsylvania, by the
courts of that country, and not by us. We cannot examine their judgment, and if we could, we have not
the means of doing it in this case. It is not stated upon this record, nor can we take notice, what the law
of Pennsylvania is upon this subject. If we had the means, we could not examine a judgment of a court
in a foreign state, brought before us in this manner."

"It is in one way only that the sentence or judgment of a court of a foreign state is examinable in our
courts, and that is when the party who claims the benefit of it applies to our courts to enforce it. When
it is thus voluntarily submitted to our jurisdiction, we treat it not as obligatory to the extent to which it
would be obligatory, perhaps, in the country in which it was pronounced, nor as obligatory to the extent
to which, by our law, sentences and judgments are obligatory not as conclusive, but as matter in
pais, as consideration prima facie sufficient to raise a promise. We examine it as we do all other
considerations or promises, and for that purpose we receive evidence of what the law of the foreign
state is, and whether the judgment is warranted by that law."

2 H.Bl. 402, 409-410.

In Wright v. Simpson (1802), Lord Chancellor Eldon said:

"Natural law requires the courts of this country to give credit to those of another for the inclination and
power to do justice, but not if that presumption is proved to be ill founded in that transaction which is
the subject of it, and if it appears in evidence that persons suing under similar circumstances neither
had met, nor could meet, with justice, that fact cannot be immaterial as an answer to the presumption."

6 Ves. 714, 730.

Under Lord Ellenborough, the distinction between a suit on a foreign judgment in favor of the plaintiff
against the defendant, and a suit to recover money which the plaintiff had been compelled to pay under
a judgment abroad, was clearly maintained.

In Buchanan v. Rucker (1808), in assumpsit upon a judgment rendered in the Island of Tobago, the
defendant pleaded non assumpsit and prevailed because it appeared that he was not a resident of the
island, and was neither personally served with process nor came in to defend, and the only notice was,
according to the practice of the court, by nailing up a copy of the declaration at the courthouse door. It
was argued that "the presumption was in favor of a foreign judgment, as well as of a judgment obtained
in one of the courts of this country," to which Lord Ellenborough answered:
"That may be so if the judgment appears, on the face of it, consistent with reason and justice, but it is
contrary to the first principles of reason and justice that, either in civil or criminal proceedings, a man
should be condemned before he is heard. . . . There might be such glaring injustice on the face of a
foreign judgment, or it might have a vice rendering it so ludicrous, that it could not raise an assumpsit,
and, if submitted to the jurisdiction of the courts of this country, could not be enforced."

1 Camp. 63, 66-67. A motion for a new trial was denied. 9 East 192. And see Sadler v. Robins (1808),
1 Camp. 253, 256.

In Hall v. Odber (1809), in assumpsit upon a judgment obtained in Canada, with other counts on the
original debt, Lord Ellenborough and Justices Grose, Le Blanc, and Bayley agreed that a foreign
judgment was not to be considered as having the same force as a domestic judgment, but only that of
a simple contract between the parties, and did not merge the original cause of action, but was only
evidence of the debt, and therefore assumpsit would lie, either upon the judgment or upon the original
cause of action. 11 East 118.

In Tarleton v. Tarleton (1815), on the other hand, the action was brought upon a covenant of indemnity
in an agreement for dissolution of a partnership to recover a sum which the plaintiff had been compelled
to pay under a decision in a suit between the parties in the Island of Grenada. Such was the case of
which Lord Ellenborough, affirming his own ruling at the trial, said:

"I thought that I did not sit at nisi prius to try a writ of error in this case upon the proceedings in the court
abroad. The defendant had notice of the proceedings, and should have appeared and made his
defense. The plaintiff, by this neglect, has been obliged to pay the money in order to avoid a
sequestration."

The distinction was clearly brought out by Mr. Justice Bayley, who said: "As between the parties to the
suit, the justice of it might be again litigated, but as against a stranger it cannot. 4 M. & S. 20, 22-23.

In Harris v. Saunders (1825), Chief Justice Abbott (afterwards Lord Tenterden) and his associates,
upon the authority of Otway v. Ramsay, above cited, held that even since the Act of Union of 39 & 40
Geo. III. c. 67, assumpsit would lie in England upon a judgment recovered in Ireland, because such a
judgment could not be considered a specialty debt in England. 4 B. & C. 411, 6 D. & R. 471.

The English cases above referred to have been stated with the more particularity and detail, because
they directly bear upon the question what was the English law, being then our own law, before the
Declaration of Independence? They demonstrate that, by that law as generally understood, and as
declared by Hardwicke, Mansfield, Buller, Camden, Eyre, and Ellenborough, and doubted by Kenyon
only, a judgment recovered in a foreign country for a sum of money, when sued upon in England, was
only prima facie evidence of the demand, and subject to be examined and impeached. The law of
England since it has become to us a foreign country will be considered afterwards.

The law upon this subject as understood in the United States at the time of their separation from the
mother country was clearly set forth by Chief Justice Parsons, speaking for the Supreme Judicial Court
of Massachusetts in 1813, and by Mr. Justice Story in his Commentaries on the Constitution of the
United States, published in 1833. Both those eminent jurists declared that, by the law of England, the
general rule was that foreign judgments were only prima facie evidence of the matter which they
purported to decide, and that, by the common law before the American Revolution, all the courts of the
several colonies and states were deemed foreign to each other, and consequently judgments rendered
by any one of them were considered as foreign judgments, and their merits reexaminable in another
colony not only as to the jurisdiction of the court which pronounced them, but also as to the merits of
the controversy, to the extent to which they were understood to be reexaminable in England. And they
noted that in order to remove that inconvenience, statutes had been passed in Massachusetts, and in
some of the other colonies, by which judgments rendered by a court of competent jurisdiction in a
neighboring colony could not be impeached. Bissell v. Briggs, 9 Mass. 462, 464-465; Mass.Stat. 1773-
74, c. 16; 5 Prov.Laws, 323, 369; Story on the Constitution (1st ed.) 1301, 1302; (4th ed.) 1306,
1307.
It was because of that condition of the law as between the American colonies and states that the United
States, at the very beginning of their existence as a nation, ordained that full faith and credit should be
given to the judgments of one of the states of the Union in the courts of another of those states.

By the articles of confederation of 1777, Art. 4, 3, "full faith and credit shall be given, in each of these
states, to the records, acts and judicial proceedings of the courts and magistrates of every other state."
1 Stat. 4. By the Constitution of the United States, Article IV, 1, "Full faith and credit shall be given in
each state to the public acts, records and judicial proceedings of every other state, and the Congress
may by general laws prescribe the manner in which such acts, records and proceedings shall be
proved, and the effect thereof."

And the first Congress of the United States under the Constitution, after prescribing the manner in which
the records and judicial proceedings of the courts of any state should be authenticated and proved,
enacted that "the said records and judicial proceedings, authenticated as aforesaid, shall have such
faith and credit given to them in every court within the United States as they have by law or usage in
the courts of the state from whence the said records are or shall be taken."

Act May 26, 1790, c. 11, 1 Stat. 122; Rev.Stat. 905.

The effect of these provisions of the Constitution and laws of the United States was at first a subject of
diverse opinions not only in the courts of the several states, but also in the circuit courts of the United
States; Mr. Justice Cushing, Mr. Justice Wilson, and Mr. Justice Washington, holding that judgments
of the courts of a state had the same effect throughout the Union as within that state, but Chief Justice
Marshall (if accurately reported) being of opinion that they were not entitled to conclusive effect, and
that their consideration might be impeached. Armstrong v. Carson (1794), 2 Dall. 302; Green v.
Sarmiento (1811), 3 Wash. C.C. 17, 21; Pet. C.C. 74, 78; Peck v. Williamson (reported as in November,
1813, apparently a mistake for 1812), 1 Carolina Law Repository 53.

The decisions of this Court have clearly recognized that judgments of a foreign state are prima
facie evidence only, and that, but for these constitutional and legislative provisions, judgments of a
state of the Union, when sued upon in another state, would have no greater effect.

In Croudson v. Leonard (1808), in which this Court held that the sentence of a foreign court of
admiralty in rem condemning a vessel for breach of blockade was conclusive evidence of that fact in
an action on a policy of insurance, Mr. Justice Washington, after speaking of the conclusiveness of
domestic judgments generally, said:

"The judgment of a foreign court is equally conclusive, except in the single instance where the party
claiming the benefit of it applies to the courts in England to enforce it, in which case only the judgment
is prima facie evidence. But it is to be remarked that in such a case, the judgment is no more conclusive
as to the right it establishes than as to the fact it decides." In Mills v. Duryee (1813), in which it was
established that, by virtue of the Constitution and laws of the United States, the judgment of a court of
one of the states was conclusive evidence, in every court within the United States, of the matter
adjudged, and therefore nul tiel record, and not nil debet, was a proper plea to an action brought in a
court of the United States in the District of Columbia upon a judgment recovered in a court of the State
of New York, this Court, speaking by Mr. Justice Story, said:

"The pleadings in an action are governed by the dignity of the instrument on which it is founded. If it be
a record conclusive between the parties, it cannot be denied but by the plea of nul tiel record, and when
Congress gave the effect of a record to the judgment it gave all the collateral consequences. . . . Were
the construction contended for by the plaintiff in error to prevail, that judgments of the state courts ought
to be considered prima facie evidence only, this clause in the Constitution would be utterly unimportant
and illusory. The common law would give such judgments precisely the same effect." In Hampton v.
McConnell (1818), the point decided in Mills v. Duryee was again adjudged, without further discussion,
in an opinion delivered by Chief Justice Marshall. 16 U. S. 3 Wheat. 234.

The obiter dictum of Mr. Justice Livingston in Hopkins v. Lee (1821), 6 Wheat. 109, 19 U. S. 114,
repeated by Mr. Justice Daniel in Pennington v. Gibson (1853), 16 How. 65, 57 U. S. 78, as to the
general effect of foreign judgments, has no important bearing upon the case before us.
In McElmoyle v. Cohen (1839), Mr. Justice Wayne, discussing the effect of the act of Congress of 1790,
said that

"the adjudications of the English courts have now established the rule to be that foreign judgments
are prima facie evidence of the right and matter they purport to decide."

In D'Arcy v. Ketchum (1850), in which this Court held that the provisions of the Constitution and laws
of the United States gave no effect in one state to judgments rendered in another state by a court
having no jurisdiction of the cause or of the parties, Mr. Justice Catron said:

"In construing the act of 1790, the law as it stood when the act was passed must enter into that
construction, so that the existing defect in the old law may be seen and its remedy by the act of
Congress comprehended. Now it was most reasonable, on general principles of comity and justice, that
among states and their citizens united as ours are, judgments rendered in one should bind citizens of
other states where defendants had been served with process or voluntarily made defense. As these
judgments, however, were only prima facie evidence, and subject to be inquired into by plea when sued
on in another state, Congress saw proper to remedy the evil and to provide that such inquiry and double
defense should not be allowed. To this extent, it is declared in the case of Mills v. Duryee, Congress
has gone in altering the old rule."

In Christmas v. Russell (1866), in which this Court decided that because of the Constitution and laws
of the United States, a judgment of a court of one state of the Union, when sued upon in a court of
another, could not be shown to have been procured by fraud, Mr. Justice Clifford, in delivering the
opinion, after stating that under the rules of the common law a domestic judgment rendered in a court
of competent jurisdiction could not be collaterally impeached or called in question, said:

"Common law rules placed foreign judgments upon a different footing, and those rules remain, as a
general remark, unchanged to the present time. Under these rules, a foreign judgment was prima
facie evidence of the debt, and it was open to examination, not only to show that the court in which it
was rendered had no jurisdiction of the subject matter, but also to show that the judgment was
fraudulently obtained."

In Bischoff v. Wethered (1869), in an action on an English judgment rendered without notice to the
defendant other than by service on him in this country, this Court, speaking by Mr. Justice Bradley, held
that the proceeding in England

"was wholly without jurisdiction of the person, and whatever validity it may have in England, by virtue
of statute law, against property of the defendant there situate, it can have no validity here, even of
a prima facie character."

76 U. S. 9 Wall. 812, 76 U. S. 814.

Page 159 U. S. 185

In Hanley v. Donoghue (1885), 116 U. S. 1, 116 U. S. 4, and in Wisconsin v. Pelican Ins.

Co. (1888), 127 U. S. 265, 127 U. S. 292, it was said that judgments recovered in one state of the
Union, when proved in the courts of another, differed from judgments recovered in a foreign country in
no other respect than in not being reexaminable on their merits nor impeachable for fraud in obtaining
them if rendered by a court having jurisdiction of the cause and of the parties.

But neither in those cases nor in any other has this Court hitherto been called upon to determine how
far foreign judgments may be reexamined upon their merits, or be impeached for fraud in obtaining
them.

In the courts of the several states it was long recognized and assumed as undoubted and indisputable
that by our law, as by the law of England, foreign judgments for debts were not conclusive, but
only prima facie evidence of the matter adjudged. Some of the cases are collected in the margin. *

In the leading case of Bissell v. Briggs, above cited, Chief Justice Parsons said:
"A foreign judgment may be produced here by a party to it either to justify himself by the execution of
that judgment in the country in which it was rendered or to obtain the execution of it from our courts. . .
. If the foreign court rendering the judgment had jurisdiction of the cause, yet the courts here will not
execute the judgment, without first allowing an inquiry into its merits. The judgment of a foreign court
therefore is by our laws considered only as presumptive evidence of a debt, or as prima facie evidence
of a sufficient consideration of a promise, where such court had jurisdiction of the cause, and if an
action of debt be sued on any such judgment, nil debet is the general issue, or if it be made the
consideration of a promise, the general issue is non assumpsit. On these issues the defendant may
impeach the justice of the judgment by evidence relative to that point. On these issues, the defendant
may also, by proper evidence, prove that the judgment was rendered by a foreign court which had no
jurisdiction, and if his evidence be sufficient for this purpose, he has no occasion to impeach the justice
of the judgment."

9 Mass. 463, 464.

In a less known case, decided in 1815 but not published until 1879, the reasons for this view were
forcibly stated by Chief Justice Jeremiah Smith, speaking for the Supreme Court of New Hampshire,
as follows:

"The respect which is due to judgments, sentences, and decrees of courts in a foreign state by the law
of nations seems to be the same which is due to those of our own courts. Hence, the decree of an
admiralty court abroad is equally conclusive with decrees of our admiralty courts. Indeed, both courts
proceed by the same rule, are governed by the same law -- the maritime law of nations, Coll.Jurid. 100,
which is the universal law of nations except where treaties alter it."

"The same comity is not extended to judgments or decrees which may be founded on the municipal
laws of the state in which they are pronounced. Independent states do not choose to adopt such
decisions without examination. These laws and regulations may be unjust, partial to citizens, and
against foreigners. They may operate injustice to our citizens, whom we are bound to protect. They
may be, and the decisions of courts founded on them, just cause of complaint against the supreme
power of the state where rendered. To adopt them is not merely saying that the courts have decided
correctly on the law, but it is approbating the law itself. Wherever, then, the court may have proceeded
on municipal law, the rule is that the judgments are not conclusive evidence of debt, but prima
facie evidence only. The proceedings have not the conclusive quality which is annexed to the records
or proceedings of our own courts, where we approve both of the rule and of the judges who interpret
and apply it. A foreign judgment may be impeached. Defendant may show that it is unjust, or that it was
irregularly or unduly obtained. Doug. 5, note."

Bryant v. Ela, Smith (N.H.) 396, 404.

From this review of the authorities, it clearly appears that at the time of the separation of this country
from England, the general rule was fully established that foreign judgments in personam were prima
facie evidence only, and not conclusive of the merits of the controversy between the parties. But the
extent and limits of the application of that rule do not appear to have been much discussed or defined
with any approach to exactness in England or America until the matter was taken up by Chancellor
Kent and by Mr. Justice Story.

In Taylor v. Bryden (1811), an action of assumpsit brought in the Supreme Court of the State of New
York on a judgment obtained in the State of Maryland against the defendant as endorser of a bill of
exchange, and which was treated as a foreign judgment, so far as concerned its effect in New York
(the decision of this Court to the contrary in Mills v. Duryee, 7 Cranch 481, not having yet been made),
Chief Justice Kent said:

"The judgment in Maryland is presumptive evidence of a just demand, and it was incumbent upon the
defendant, if he would obstruct the execution of the judgment here, to show by positive proof that it was
irregularly or unduly obtained. . . . To try over again, as of course, every matter of fact which had been
duly decided by a competent tribunal would be disregarding the comity which we justly owe to the courts
of other states, and would be carrying the doctrine of reexamination to an oppressive extent. It would
be the same as granting a new trial in every case and upon every question of fact. Suppose a recovery
in another state, or in any foreign court, in an action for a tort, as for an assault and battery, false
imprisonment, slander, etc., and the defendant was duly summoned and appeared, and made his
defense, and the trial was conducted orderly and properly, according to the rules of a civilized
jurisprudence, is every such case to be tried again here on the merits? I much doubt whether the rule
can ever go to this length. The general language of the books is that the defendant must impeach the
judgment by showing affirmatively that it was unjust by being irregularly or unfairly procured."

But the case was decided upon the ground that the defendant had done no more than raise a doubt of
the correctness of the judgment sued on. 8 Johns. 173, 177, 178.

Chancellor Kent afterwards, treating of the same subject in the first edition of his Commentaries (1827),
put the right to impeach a foreign judgment somewhat more broadly, saying:

"No sovereign is obliged to execute within his dominion a sentence rendered out of it, and if execution
be sought by a suit upon the judgment or otherwise, he is at liberty, in his courts of justice, to examine
into the merits of such judgment [for the effect to be given to foreign judgments is altogether a matter
of comity in cases where it is not regulated by treaty]. In the former case [of a suit to enforce a foreign
judgment], the rule is that the foreign judgment is to be received in the first instance as prima
facie evidence of the debt, and it lies on the defendant to impeach the justice of it or to show that it was
irregularly and unduly obtained. This was the principle declared and settled by the House of Lords in
1771 in the case of Sinclair v. Fraser upon an appeal from the Court of Cession in Scotland."

In the second edition (1832), he inserted the passages above printed in brackets, and in a note to the
fourth edition (1840), after citing recent conflicting opinions in Great Britain, and referring to Mr. Justice
Story's reasoning in his Commentaries on the Conflict of Laws, 607, in favor of the conclusiveness of
foreign judgments, he added:

"And that is certainly the more convenient and the safest rule, and the most consistent with sound
principle, except in cases in which the court which pronounced the judgment has not due jurisdiction of
the case, or of the defendant, or the proceeding was in fraud, or founded in palpable mistake or
irregularity, or bad by the law of the rei judicatae, and in all such cases, the justice of the judgment
ought to be impeached."

2 Kent Com. (1st ed.) 102; (later Eds.) 120.

Mr. Justice Story, in his Commentaries on the Conflict of Laws, first published in 1834, after reviewing
many English authorities, said: "The present inclination of the English courts seems to be to sustain the
conclusiveness of foreign judgments," to which, in the second edition, in 1841, he added: "Although
certainly there yet remains no inconsiderable diversity of opinion among the learned judges of the
different tribunals." 606.

He then proceeded to state his own view of the subject on principle, saying:

"It is indeed very difficult to perceive what could be done if a different doctrine were maintainable to the
full extent of opening all the evidence and merits of the cause anew on a suit upon the foreign judgment.
Some of the witnesses may be since dead; some of the vouchers may be lost or destroyed. The merits
of the cause, as formerly before the court upon the whole evidence, may have been decidedly in favor
of the judgment; upon a partial possession of the original evidence, they may now appear otherwise.
Suppose a case purely sounding in damages, such as an action for an assault, for slander, for
conversion of property, for a malicious prosecution, or for a criminal conversation; is the defendant to
be at liberty to retry the whole merits, and to make out, if he can, a new case upon new evidence? Or
is the court to review the former decision, like a Court of Appeal, upon the old evidence? In a case of
covenant, or of debt, or of a breach of contract, are all the circumstances to be reexamined anew? If
they are, by what laws and rules of evidence and principles of justice is the validity of the original
judgment to be tried? Is the court to open the judgment, and to proceed ex aequo et bono? Or is it to
administer strict law, and stand to the doctrines of the local administration of justice? Is it to act upon
the rules of evidence acknowledged in its own jurisprudence, or upon those of the foreign
jurisprudence? These and many more questions might be put to show the intrinsic difficulties of the
subject. Indeed, the rule that the judgment is to be prima facie evidence for the plain tiff would be a
mere delusion if the defendant might still question it by opening all or any of the original merits on his
side, for under such circumstances it would be equivalent to granting a new trial. It is easy to understand
that the defendant may be at liberty to impeach the original justice of the judgment by showing that the
court had no jurisdiction, or that he never had any notice of the suit, or that it was procured by fraud, or
that upon its face it is founded in mistake, or that it is irregular and bad by the local law, fori rei
judicatae. To such an extent, the doctrine is intelligible and practicable. Beyond this, the right to impugn
the judgment is in legal effect the right to retry the merits of the original cause at large, and to put the
defendant upon proving those merits."

607.

He then observed:

"The general doctrine maintained in the American courts in relation to foreign judgments certainly is
that they are prima facie evidence, but that they are impeachable. But how far and to what extent this
doctrine is to be carried does not seem to be definitely settled. It has been declared that the jurisdiction
of the court, and its power over the parties and the things in controversy, may be inquired into, and that
the judgment may be impeached for fraud. Beyond this, no definite lines have as yet been drawn."

608.

After stating the effect of the Constitution of the United States and referring to the opinions of some
foreign jurists, and to the law of France, which allows the merits of foreign judgments to be examined,
Mr. Justice Story concluded his treatment of the subject as follows:

"It is difficult to ascertain what the prevailing rule is in regard to foreign judgments in some of the other
nations of continental Europe -- whether they are deemed conclusive evidence or only prima
facie evidence. Holland seems at all times, upon the general principle of reciprocity, to have given great
weight to foreign judgments and in many cases, if not in all cases, to have given to them a weight equal
to that given to domestic judgments, wherever the like rule of reciprocity with regard to Dutch judgments
has been adopted by the foreign country whose judgment is brought under review. This is certainly a
very reasonable rule, and may perhaps hereafter work itself firmly into the structure of international
jurisprudence."

In Bradstreet v. Neptune Ins. Co. (1839), in the Circuit Court of the United States for the District of
Massachusetts, Mr. Justice Story said:

"If a civilized nation seeks to have the sentences of its own courts held of any validity elsewhere, they
ought to have a just regard to the rights and usages of other civilized nations and the principles of public
and national law in the administration of justice."

3 Sumnner 600, 608-609.

In Burnham v. Webster (1845), in an action of assumpsit upon a promissory note, brought in the Circuit
Court of the United States for the District of Maine, the defendant pleaded a former judgment in the
Province of New Brunswick in his favor in an action there brought by the plaintiff. The plaintiff replied
that the note was withdrawn from that suit, by consent of parties and leave of the court, before verdict
and judgment, and the defendant demurred to the replication. Judge Ware, in overruling the demurrer,
said:

"Whatever difference of opinion there may be as to the binding force of foreign judgments, all agree
that they are not entitled to the same authority as the judgments of domestic courts of general
jurisdiction. They are but evidence of what they purport to decide, and liable to be controlled by counter
evidence, and do not, like domestic judgments, import absolute verity and remain incontrovertible and
conclusive until reversed."

And he added that if the question stood entirely clear from authority, he should be of opinion that the
plaintiff could not be allowed to deny the validity of the proceedings of a court whose authority he had
invoked. 2 Ware, 236, 239-241.

At a subsequent trial of that case before a jury, (1846) 1 Woodb. & Min. 172, the defendant proved the
judgment in New Brunswick. The plaintiff then offered to prove the facts stated in his replication, and
that any entry on the record of the judgment in New Brunswick concerning this note was therefore by
mistake or inadventure. This evidence was excluded, and a verdict taken for the plaintiff, subject to the
opinion of the court. Mr. Justice Woodbury, in granting a new trial, delivered a thoughtful and
discriminating opinion upon the effect of foreign judgments, from which the following passages are
taken:

"They do, like domestic ones, operate conclusively, ex proprio vigore, within the governments in which
they are rendered, but not elsewhere. When offered and considered elsewhere, they are, ex
commitate, treated with respect, according to the nature of the judgment and the character of the
tribunal which rendered it and the reciprocal mode, if any, in which that government treats our
judgments, and according to the party offering it, whether having sought or assented to it voluntarily or
not, so as to give it in some degree the force of a contract, and hence to be respected elsewhere by
analogy according to the lex loci contractus. With these views I would go to the whole extent of the
cases decided by Lords Mansfield and Buller, and where the foreign judgment is not in rem, as it is in
admiralty, having the subject matter before the court, and acting on that, rather than the parties, I would
consider it only prima facie evidence as between the parties to it." P. 175.

"By returning to that rule, we are enabled to give parties at times most needed and most substantial
relief, such as in judgments abroad against them without notice, or without a hearing on the merits, or
by accident or mistake of facts, as here, or on rules of evidence and rules of law they never assented
to, being foreigners and their contracts made elsewhere but happening to be traveling through a foreign
jurisdiction and being compelled in invitum to litigate there." P. 177.

"Nor would I permit the prima facie force of the foreign judgment to go far if the court was one of a
barbarous or semi-barbarous government, and acting on no established principles of civilized
jurisprudence, and not resorted to willingly by both parties, or both not inhabitants and citizens of the
country. Nor can much comity be asked for the judgments of another nation which, like France, pays
no respect to those of other countries except, as before remarked, on the principle of the parties
belonging there or assenting to a trial there." P. 179.

"On the other hand, by considering a judgment abroad as only prima facie valid, I would not allow the
plaintiff abroad, who had sought it there, to avoid it, unless for accident or mistake, as here, because,
in other respects, having been sought there by him voluntarily, it does not lie in his mouth to complain
of it. Nor would I in any case permit the whole merits of the judgment recovered abroad to be put in
evidence as a matter of course, but, being prima facie correct, the party impugning it, and desiring a
hearing of its merits, must show first, specifically, some objection to the judgment's reaching the merits,
and tending to prove they had not been acted on, or [as?] by showing there was no jurisdiction in the
court, or no notice, or some accident or mistake, or fraud which prevented a full defense, and has
entered into the judgment, or that the court either did not decide at all on the merits or was a tribunal
not acting in conformity to any set of legal principles, and was not willingly recognized by the party as
suitable for adjudicating on the merits. After matters like these are proved, I can see no danger, but
rather great safety, in the administration of justice in permitting to every party before us at least one fair
opportunity to have the merits of his case fully considered, and one fair adjudication upon them before
he is estopped forever." P. 180.

In De Brimont v. Penniman (1873), in the Circuit Court of the United States for the Southern District of
New York, Judge Woodruff said:

"The principle on which foreign judgments receive any recognition from our courts is one of comity. It
does not require, but rather forbids, it where such a recognition works a direct violation of the policy of
our laws, and does violence to what we deem the rights of our citizens."

And he declined to maintain an action against a citizen of the United States, whose daughter had been
married in France to a French citizen, upon a decree of a French court requiring the defendant, then
resident in France and duly served with process there, to pay an annuity to his son-in-law. 10 Blatchford
436, 441.

Mr. Justice Story and Chancellor Kent, as appears by the passages above quoted from their
Commentaries, concurred in the opinion that, in a suit upon a foreign judgment, the whole merits of the
case could not as matter of course be reexamined anew, but that the defendant was at liberty to
impeach the judgment not only by showing that the court had no jurisdiction of the case or of the
defendant, but also by showing that it was procured by fraud, or was founded on clear mistake or
irregularity, or was bad by the law of the place where it was rendered. Story on Conflict of Laws 607;
2 Kent Com. (6th ed.) 120.

The word "mistake" was evidently used by Story and Kent in this connection not in its wider meaning
of error in judgment, whether upon the law or upon the facts, but in the stricter sense of
misapprehension or oversight, and as equivalent to what, in Burnham v. Webster, before cited, Mr.
Justice Woodbury spoke of as "some objection to the judgment's reaching the merits, and tending to
prove that they had not been acted on," "some accident or mistake," or "that the court did not decide at
all on the merits." 1 Woodb. & Min. 180.

The suggestion that a foreign judgment might be impeached for error in law of the country in which it
was rendered is hardly consistent with the statement of Chief Justice Marshall, when, speaking of the
disposition of this Court to adopt the construction given to the laws of a state by its own courts, he said:

"This course is founded on the principle, supposed to be universally recognized, that the judicial
department of every government, where such department exists, is the appropriate organ for construing
the legislative acts of that government. Thus, no court in the universe which professed to be governed
by principle would, we presume, undertake to say that the courts of Great Britain or of France or of any
other nation had misunderstood their own statutes, and therefore erect itself into a tribunal which should
correct such misunderstanding. We receive the construction given by the courts of the nation as the
true sense of the law, and feel ourselves no more at liberty to depart from that construction than to
depart from the words of the statute."

Elmendorf v. Taylor (1825), 10 Wheat. 152, 23 U. S. 159-160.

In recent times, foreign judgments rendered within the dominions of the English Crown and under the
law of England, after a trial on the merits, and no want of jurisdiction and no fraud or mistake being
shown or offered to be shown, have been treated as conclusive by the highest courts of New York,
Maine, and Illinois. Lazier v. Westcott (1862), 26 N.Y. 146, 150; Dunstan v. Higgins (1893), 138 N.Y.
70, 74; Rankin v. Goddard (1866), 54 Me. 28, and (1868) 55 Me. 389; Baker v. Palmer (1876), 83 Ill.
568. In two early cases in Ohio, it was said that foreign judgments were conclusive unless shown to
have been obtained by fraud. Lake Bank v. Harding (1832), 5 Ohio 545, 547; Anderson v.
Anderson (1837), 8 Ohio 108, 110. But in a later case in that state, it was said that they were only prima
facie evidence of indebtedness. Pelton v. Platner (1844), 13 Ohio, 209, 217. In Jones v.
Jamison (1860), 15 La.Ann. 35, the decision was only that, by virtue of the statutes of Louisiana, a
foreign judgment merged the original cause of action as against the plaintiff.

The result of the modern decisions in England, after much diversity, not to say vacillation, of opinion
does not greatly differ (so far as concerns the aspects in which the English courts have been called
upon to consider the subject) from the conclusions of Chancellor Kent and of Justices Story and
Woodbury.

At one time it was held that, in an action brought in England upon a judgment obtained by the plaintiff
in a foreign country, the judgment must be assumed to be according to the law of that country unless
the contrary was clearly proved, manifestly implying that proof on that point was competent. Becquet
v. MacCarthy (1831), 2 B. & Ad. 951, 957; Alivon v. Furnival (1834), 1 Cr., M. & R. 277, 293, 4 Tyrwh.
751, 768.

Lord Brougham, in the House of Lords, as well as Chief Justice Tindal and Chief Justice Wilde
(afterwards Lord Chancellor Truro) and their associates, in the Common Bench, considered it to be well
settled that an Irish or colonial judgment or a foreign judgment was not, like a judgment of a domestic
court of record, conclusive evidence, but only, like a simple contract, prima facie evidence of a
debt. Houlditch v. Donegal (1834), 8 Bligh N.R. 301, 342, 346, 2 Cl. & Fin. 470, 476-479; Don v.
Lippmann (1837), 5 Cl. & Fin. 1, 20-22; Smith v. Nicolls (1839), 7 Scott 147, 166-170, 5 Bing.N.C. 208,
220-224, 7 Dowl. 282; Bank of Australasia v. Harding (1850), 9 C.B. 661, 686-687.

On the other hand, Vice Chancellor Shadwell, upon an imperfect review of the early cases, expressed
the opinion that a foreign judgment was conclusive. Martin v. Nicolls (1830), 3 Sim. 458.
Like opinions were expressed by Lord Denman, speaking for the Court of Queen's Bench, and by Vice
Chancellor Wigram, in cases of Irish or colonial judgments, which were subject to direct appellate
review in England. Ferguson v. Mahon (1839), 11 Ad. & El. 179, 183, 3 Per. & Dav. 143,
146; Henderson v. Henderson (1844), 6 Q.B. 288, 298, 299; Henderson v. Henderson (1843), 3 Hare
100, 118.

In Bank v. Nias (1851), in an action upon an Australian judgment, pleas that the original promises were
not made, and that those promises, if made, were obtained by fraud, were held bad on demurrer. Lord
Campbell, in delivering judgment, referred to Story on the Conflict of Laws, and adopted substantially
his course of reasoning in 607, above quoted, with regard to foreign judgments. But he distinctly put
the decision upon the ground that the defendant might have appealed to the Judicial Committee of the
Privy Council, and thus have procured a review of the colonial judgment, and he took the precaution to
say:

"How far it would be permitted to a defendant to impeach the competency or the integrity of a foreign
court from which there was no appeal it is unnecessary here to inquire."

16 Q.B. 717, 734-737.

The English courts, however, have since treated that decision as establishing that a judgment of any
competent foreign court could not, in an action upon it, be questioned either because that court had
mistaken its own law or because it had come to an erroneous conclusion upon the facts. De Cosse
Brissac v. Rathbone (1861) 6 H. & N. 301; Scott v. Pilkington (1862) 2 B. & S. 11, 41-42; Vanquelin v.
Bouard (1863), 15 C.B. (N.S.) 341, 368; Castrique v. Imrie (1870), L.R. 4 H.L. 414, 429-430; Godard v.
Gray (1870), L.R. 6 Q.B. 139, 150; Ochsenbein v. Papelier (1873), 8 Ch.App. 695, 701. In Meyer v.
Ralli (1876), a judgment in rem, rendered by a French court of competent jurisdiction, was held to be
reexaminable upon the merits solely because it was admitted by the parties, in the special case upon
which the cause was submitted to the English court, to be manifestly erroneous in regard to the law of
France. 1 C.P.D. 358.

In view of the recent decisions in England, it is somewhat remarkable that, by the Indian Code of Civil
Procedure of 1877,

"no foreign judgment [which is defined as a judgment of 'a civil tribunal beyond the limits of British India,
and not having authority in British India, nor established by the governor general in council'] shall
operate as a bar to a suit in British India, . . . if it appears on the face of the proceeding to be founded
on an incorrect view of international law," or "if it is, in the opinion of the court before which it is produced,
contrary to natural justice." Piggott on Foreign Judgments (2d ed.) 380, 381.

It was formerly understood in England that a foreign judgment was not conclusive if it appeared upon
its face to be founded on a mistake or disregard of English law. Arnott v. Redfern (1825-1826) 2 Car.
& P. 88, 3 Bing. 353, and 11 J. B. Moore 209; Novelli v. Rossi (1831) 2 B. & Ad. 757; 3 Burge on
Colonial and Foreign Laws 1065; 2 Smith's Lead.Cas. (2d ed.) 448; Reimers v. Druce (1856), 23
Beavan 145.

In Simpson v. Fogo (1860), 1 Johns. & Hem. 18, and (1862) 1 Hem. & Mil. 195, Vice Chancellor Wood
(afterwards Lord Hatherley) refused to give effect to a judgment in personam of a court in Louisiana,
which had declined to recognize the title of a mortgagee of an English ship under the English law. In
delivering judgment upon demurrer, he said:

"The State of Louisiana may deal as it pleases with foreign law; but if it asks courts of this country to
respect its law, it must be on a footing of paying a like respect to ours. Any comity between the courts
of two nations holding such opposite doctrines as to the authority of the lex loci is impossible. While the
courts of Louisiana refuse to recognize a title acquired here, which is valid according to our law, and
hand over to their own citizens property so acquired, they cannot at the same time expect us to defer
to a rule of their law which we are no more bound to respect than a law that any title of foreigners should
be disregarded in favor of citizens of Louisiana. The answer to such a demand must be that a country
which pays so little regard to our laws as to set aside a paramount title acquired here must not expect
at our hands any greater regard for the title so acquired by the citizens of that country."
1 Johns. & Hem. 28, 29. And upon motion for a decree, he elaborated the same view, beginning by
saying:

"Whether this judgment does so err or not against the recognized principles of what has been commonly
called the comity of nations by refusing to regard the law of the country where the title to the ship was
acquired is one of the points which I have to consider," and concluding that it was "so contrary to law,
and to what is required by the comity of nations" that he must disregard it. 1 Hem. & Mil. 222-247. See
also Liverpool Co. v. Hunter (1867), L.R. 4 Eq. 62, 68, and (1868) L.R. 3 Ch. 479, 484.

In Scott v. Pilkington (1862), Chief Justice Cockburn treated it as an open question whether a judgment
recovered in New York for a debt could be impeached on the ground that the record showed that the
foreign court ought to have decided the case according to English law, and had either disregarded the
comity of nations by refusing to apply the English law or erred in its view of English law. 2 B. & S. 11,
42. In Castrique v. Imrie (1870), the French judgment which was adjudged not to be impeachable for
error in law, French or English, was, as the House of Lords construed it, a judgment in rem, under which
the ship to which the plaintiff in England claimed title had been sold. L.R. 4 H.L. 414. In Godard v.
Gray (1870), shortly afterwards, in which the court of Queen's Bench held that a judgment in
personam of a French court could not be impeached because it had put

Page 159 U. S. 199

a construction erroneous, according to English law, upon an English contract, the decision was put by
Justices Blackburn and Mellor upon the ground that it did not appear that the foreign court had
"knowingly and perversely disregarded the rights given by the English law," and by Justice Hannen
solely upon the ground that the defendant did not appear to have brought the English law to the
knowledge of the foreign court. L.R. 6 Q.B. 139, 149, 154. In Messina v. Petrococchino (1872), Sir
Robert Phillimore, delivering judgment in the Privy Council, said: "A foreign judgment of a competent
court may, indeed, be impeached if it carries on the face of it a manifest error." L.R. 4 P.C. 144, 157.

The result of the English decisions therefore would seem to be that a foreign judgment in
personam may be impeached for a manifest and willful disregard of the law of England.

Lord Abinger, Baron Parke, and Baron Alderson were wont to say that the judgment of a foreign court
of competent jurisdiction for a sum certain created a duty or legal obligation to pay that sum; or, in
Baron Parke's words, that the principle on which the judgments of foreign and colonial courts are
supported and enforced was "that where a court of competent jurisdiction has adjudicated a certain
sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action
of debt to enforce the judgment may be maintained."

Russell v. Smyth (1842), 9 M. & W. 810, 818-819; Williams v. Jones (1845), 13 M. & W. 628, 633, 634.

But this was said in explaining why, by the technical rules of pleading, an action of assumpsit or of debt
would lie upon a foreign judgment, and had no reference to the question how far such a judgment was
conclusive of the matter adjudged. At common law, an action of debt would lie on a debt appearing by
a record or by any other specialty, such as a contract under seal, and would also lie for a definite sum
of money due by simple contract. Assumpsit would not lie upon a record or other specialty, but would
lie upon any other contract, whether expressed by the party or implied by law. In an action upon a
record, or upon a contract under seal, a lawful consideration was conclusively presumed to exist, and
could not be denied, but in an action, whether in debt or in assumpsit, upon a simple contract, express
or implied, the consideration was open to inquiry. A foreign judgment was not considered, like a
judgment of a domestic court of record, as a record or specialty. The form of action, therefore, upon a
foreign judgment was not in debt, grounded upon a record or a specialty, but was either in debt, as for
a definite sum of money due by simple contract, or in assumpsit upon such a contract. A foreign
judgment, being a security of no higher nature than the original cause of action, did not merge that
cause of action. The plaintiff might sue either on the judgment or on the original cause of action, and in
either form of suit the foreign judgment was only evidence of a liability equivalent to a simple contract,
and was therefore liable to be controlled by such competent evidence as the nature of the case
admitted. See cases already cited, especially Walker v. Witter, 1 Doug. 1; Phillips v. Hunter, 2 H.Bl.
402, 410; Bissell v. Briggs, 9 Mass. 463, 464; Mills v. Duryee, 7 Cranch 481, 11 U. S. 485; D'Arcy v.
Ketchum, 11 How. 165, 52 U. S. 176; Hall v. Odber, 11 East 118; Smith v. Nicolls, 7 Scott 147, 5 Bing.
N.C. 208. See also Grant v. Easton, 13 Q.B.D. 302, 303; Lyman v. Brown, 2 Curtis 559.

Mr. Justice Blackburn, indeed, in determining how far a foreign judgment could be impeached either
for error in law or for want of jurisdiction, expressed the opinion that the effect of such a judgment did
not depend upon what he termed "that which is loosely called comity,'" but upon the saying of Baron
Parke, above quoted, and consequently "that anything which negatives the existence of that legal
obligation or excuses the defendant from the performance of it must form a good defense to the action."

Godard v. Gray (1870), L.R. 6 Q.B. 139, 148-149; Schibsby v. Westenholz, 6 Q.B. 155, 159. And his
example has been followed by some other English judges: Fry, J., in Rousillon v. Rousillon (1880), 14
Ch.D. 351, 370; North, J., in Nouvion v. Freeman (1887), 35 Ch.D. 704, 714-715; Cotton and Lindley, L.
JJ., in Nouvion v. Freeman (1887), 37 Ch.D. 244, 250, 256.

But the theory that a foreign judgment imposes or creates a duty or obligation is a remnant of the
ancient fiction, assumed by Blackstone, saying that "upon showing the judgment once obtained still in
full force and yet unsatisfied, the law immediately implies that, by the original contract of society, the
defendant hath contracted a debt and is bound to pay it."

3 Bl.Com. 160. That fiction which embraced judgments upon default or for torts cannot convert a
transaction wanting the assent of parties into one which necessarily implies it. Louisiana v. New
Orleans, 109 U. S. 285, 109 U. S. 288. While the theory in question may help to explain rules of pleading
which originated while the fiction was believed in, it is hardly a sufficient guide at the present day in
dealing with questions of international law, public or private, and of the comity of our own country, and
of foreign nations. It might be safer to adopt the maxim applied to foreign judgments by Chief Justice
Weston, speaking for the Supreme Judicial Court of Maine, judicium redditur in invitum, or, as given by
Lord Coke, in praesumptione legis judicium redditur in invitum. Jordan v. Robinson (1838), 15 Me. 167,
168; Co.Litt. 248b.

In Russell v. Smyth, above cited, Baron Parke took the precaution of adding: "Nor need we say how far
the judgment of a court of competent jurisdiction, in the absence of fraud, is conclusive upon the
parties." 9 M. & W. 819. He could hardly have contemplated erecting a rule of local procedure into a
canon of private international law, and a substitute for "the comity of nations," on which, in an earlier
case, he had himself relied as the ground for enforcing in England a right created by a law of a foreign
country. Alivon v. Furnival, 1 Cr., M. & R. 277, 296, 4 Tyrwh. 751, 771.

In Abouloff v. Oppenheimer (1882), Lord Coleridge and Lord Justice Brett carefully avoided adopting
the theory of a legal obligation to pay a foreign judgment as the test in determining how far such a
judgment might be impeached. 10 Q.B.D. 295, 300, 305. In Hawksford v. Giffard (1886), in the Privy
Council, on appeal from the Royal Court of Jersey, Lord Herschell said:

"This action is brought upon an English judgment which, until a judgment was obtained in Jersey, was
in that country no more than evidence of a debt."

12 App.Cas. 122, 126. In Nouvion v. Freeman (1889), in the House of Lords, Lord Herschell, while he
referred to the reliance placed by counsel on the saying of Baron Parke, did not treat a foreign judgment
as creating or imposing a new obligation, but only as declaring and establishing that a debt or obligation
existed. His words were:

"The principle upon which I think our enforcement of foreign judgments must proceed is this, that in a
court of competent jurisdiction, where according to its established procedure, the whole merits of the
case were open at all events, to the parties, however much they may have failed to take advantage of
them, or may have waived any of their rights, a final adjudication has been given that a debt or obligation
exists which cannot thereafter in that court be disputed, and can only be questioned in an appeal to a
higher tribunal. In such a case, it may well be said that, giving credit to the courts of another country,
we are prepared to take the fact that such adjudication has been made as establishing the existence
of the debt or obligation."
And Lord Bramwell said: "How can it be said that there is a legal obligation on the part of a man to pay
a debt who has a right to say, 'I owe none, and no judgment has established against me that I do?' I
cannot see."

The foreign judgment in that case was allowed no force, for want of finally establishing the existence of
a debt. 15 App.Cas. 1, 9-10, 14.

In view of all the authorities upon the subject and of the trend of judicial opinion in this country and in
England, following the lead of Kent and Story, we are satisfied that where there has been opportunity
for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular
proceedings, after due citation or voluntary appearance of the defendant and under a system of
jurisprudence likely to secure an impartial administration of justice between the citizens of its own
country and those of other countries, and there is nothing to show either prejudice in the court or in the
system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason
why the comity of this nation should not allow it full effect, the merits of the case should not, in an action
brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the
mere assertion of the party that the judgment was erroneous in law or in fact. The defendants therefore
cannot be permitted upon that general ground to contest the validity or the effect of the judgment sued
on.

But they have sought to impeach that judgment upon several other grounds which require separate
consideration.

It is objected that the appearance and litigation of the defendants in the French tribunals were not
voluntary, but by legal compulsion, and therefore that the French courts never acquired such jurisdiction
over the defendants that they should be held bound by the judgment.

Upon the question what should be considered such a voluntary appearance as to amount to a
submission to the jurisdiction of a foreign court, there has been some difference of opinion in England.

In General Steam Navigation Co. v. Guillou (1843), in an action at law to recover damages to the
plaintiffs' ship by a collision with the defendant's ship through the negligence of the master and crew of
the latter, the defendant pleaded a judgment by which a French court, in a suit brought by him and after
the plaintiffs had been cited, had appeared, and had asserted fault on this defendant's part, had
adjudged that it was the ship of these plaintiffs, and not that of this defendant, which was in fault. It was
not shown or suggested that the ship of these plaintiffs was in the custody or possession of the French
court. Yet Baron Parke, delivering a considered judgment of the Court of Exchequer (Lord Abinger and
Barons Alderson and Rolfe concurring), expressed a decided opinion that the pleas were bad in
substance, for these reasons:

"They do not state that the plaintiffs were French subjects, or resident or even present in France, when
the suit began, so as to be bound, by reason of allegiance or domicile or temporary presence, by a
decision of a French court, and they did not select the tribunal and sue as plaintiffs, in any of which
cases the determination might have possibly bound them. They were mere strangers, who put forward
the negligence of the defendant as an answer, in an adverse suit in a foreign country, whose laws they
were under no obligation to obey."

11 M. & W. 877, 894, 13 Law Journal (N.S.) Exch. 168, 176.

But it is now settled in England that while an appearance by the defendant in a court of a foreign country,
for the purpose of protecting his property already in the possession of that court, may not be deemed
a voluntary appearance, yet an appearance solely for the purpose of protecting other property in that
country from seizure is considered as a voluntary appearance. De Cosse Brissac v. Rathbone (1861),
6 H. & N. 301, 20 Law Journal (N.S.) Exch. 238; Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155,
162; Voinet v. Barrett (1885), Cab. & El. 554, 54 Law Journal (N.S.) Q.B. 521, and 55 Law Journal
(N.S.) Q.B. 39.

The present case is not one of a person traveling through or casually found in a foreign country. The
defendants, although they were not citizens or residents of France, but were citizens and residents of
the State of New York, and their principal place of business was in the City of New York, yet had a
storehouse and an agent in Paris, and were accustomed to purchase large quantities of goods there,
although they did not make sales in France. Under such circumstances, evidence that their sole object
in appearing and carrying on the litigation in the French courts was to prevent property in their
storehouse at Paris, belonging to them, and within the jurisdiction, but not in the custody, of those courts
from being taken in satisfaction of any judgment that might be recovered against them would not,
according to our law, show that those courts did not acquire jurisdiction of the persons of the
defendants.

It is next objected that in those courts, one of the plaintiffs was permitted to testify not under oath, and
was not subjected to cross-examination by the opposite party, and that the defendants were therefore
deprived of safeguards which are by our law considered essential to secure honesty and to detect fraud
in a witness, and also that documents and papers were admitted in evidence with which the defendants
had no connection and which would not be admissible under our own system of jurisprudence. But it
having been shown by the plaintiffs, and hardly denied by the defendants, that the practice followed
and the method of examining witnesses were according to the laws of France, we are not prepared to
hold that the fact that the procedure in these respects differed from that of our own courts is, of itself, a
sufficient ground for impeaching the foreign judgment.

It is also contended that a part of the plaintiffs' claim is affected by one of the contracts between the
parties having been made in violation of the revenue laws of the United States, requiring goods to be
invoiced at their actual market value. Rev.Stat. 2854. It may be assumed that, as the courts of a
country will not enforce contracts made abroad in evasion or fraud of its own laws, so they will not
enforce a foreign judgment upon such a contract. Armstrong v. Toler, 11 Wheat. 258; De Brimont v.
Penniman, 10 Blatchford 436; Lang v. Holbrook, Crabbe 179; Story on Conflict of Laws 244, 246;
Wharton's Conflict of Laws, 656. But as this point does not affect the whole claim in this case, it is
sufficient for present purposes to say that there does not appear to have been any distinct offer to prove
that the invoice value of any of the goods sold by the plaintiffs to the defendants was agreed between
them to be or was in fact lower than the actual market value of the goods.

It must however always be kept in mind that it is the paramount duty of the court before which any suit
is brought to see to it that the parties have had a fair and impartial trial before a final decision is rendered
against either party.

When an action is brought in a court of this country by a citizen of a foreign country against one of our
own citizens to recover a sum of money adjudged by a court of that country to be due from the defendant
to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having
jurisdiction of the cause and of the parties, and upon due allegations and proofs and opportunity to
defend against them, and its proceedings are according to the course of a civilized jurisprudence, and
are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of
the matter adjudged, and it should be held conclusive upon the merits tried in the foreign court unless
some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud
or prejudice or that, by the principles of international law and by the comity of our own country, it should
not be given full credit and effect.

There is no doubt that both in this country, as appears by the authorities already cited, and in England,
a foreign judgment may be impeached for fraud.

Shortly before the Declaration of Independence, the House of Lords, upon the trial of the Duchess of
Kingston for bigamy, put to the judges the question whether -- assuming a sentence of the ecclesiastical
court against a marriage, in a suit for jactitation of marriage, to be conclusive evidence so as to prevent
the counsel for the crown from proving the marriage upon an indictment for polygame -- "the counsel
for the crown may be admitted to avoid the effect of such sentence by proving the same to have been
obtained by fraud or collusion." Chief Justice De Grey, delivering the opinion of the judges, which was
adopted by the House of Lords, answering this question in the affirmative, said:

"But if it was a direct and decisive sentence upon the point, and, as it stands, to be admitted as
conclusive evidence upon the court, and not to be impeached from within, yet, like all other acts of the
highest judicial authority, it is impeachable from without. Although it is not permitted to show that the
court was mistaken, it may be shown that they were misled. Fraud is an intrinsic collateral act, which
vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts,
ecclesiastical or temporal."

20 Howell's State Trials 537, 543, note; 2 Smith's Lead.Cas. 573.

All the subsequent English authorities concur in holding that any foreign judgment, whether in rem or in
personam, may be impeached upon the ground that it was fraudulently obtained. White v. Hall (1806),
12 Ves. 321, 324; Bowles v. Orr (1835), 1 Yo. & Col.Exch. 464, 473; Price v. Dewhurst (1837) 8 Sim.
279, 302-305; Don v. Lippmann (1837), 5 Cl &Fin. 1, 20; Bank of Australasia v. Nias (1851), 16 Q.B.
717, 735; Reimers v. Druce (1856), 23 Beav. 145, 150; Castrique v. Imrie (1870), L.R. 4 H.L. 414, 445-
446; Godard v. Gray (1870), L.R. 6 Q.B. 139, 149; Messina v. Petrococchino (1872), L.R. 4 P.C. 144,
157; Ochsenbein v. Papelier (1873), 8 Ch. 695.

Under what circumstances this may be done does not appear to have ever been the subject of judicial
investigation in this country.

It has often, indeed, been declared by this Court that the fraud which entitles a party to impeach the
judgment of one of our own tribunals must be fraud extrinsic to the matter tried in the cause, and not
merely consist in false and fraudulent documents or testimony submitted to that tribunal, and the truth
of which was contested before it and passed upon by it.United States v. Throckmorton, 98 U. S. 61, 98
U. S. 65-66; Vance v. Burbank, 101 U. S. 514, 101 U. S. 519; Steel v. Smelting Co.,106 U. S. 447, 106
U. S. 453; Moffat v. United States, 115 U. S. 24, 115 U. S. 32; United States v. Minor, 114 U. S.
233, 114 U. S. 242. And in one English case, where a ship had been sold under a foreign judgment,
the like restriction upon impeaching that judgment for fraud was suggested, but the decision was finally
put upon the ground that the judicial sale passed the title to the ship. Cammell v. Sewell (1858-60), 3
H. & N. 617, 646, 5 H. & N. 728, 729, 742.

But it is now established in England by well considered and strongly reasoned decisions of the Court
of Appeal that foreign judgments may be impeached if procured by false and fraudulent representations
and testimony of the plaintiff, even if the same question of fraud was presented to and decided by the
foreign court.

In Abouloff v. Oppenheimer (1882), the plaintiff had recovered a judgment at Tiflis, in Russia, ordering
the defendants to return certain goods, or to pay their value. The defendants appealed to a higher
Russian court, which confirmed the judgment and ordered the defendants to pay, besides the sum
awarded below, an additional sum for costs and expenses. In an action in the English High Court of
Justice upon those judgments, the defendants pleaded that they were obtained by the gross fraud of
the plaintiff in fraudulently representing to the Russian courts that the goods in question were not in her
possession when the suit was commenced, and when the judgment was given, and during the whole
time the suit was pending, and by fraudulently concealing from those courts the fact that those goods,
as the fact was and as she well knew, were in her actual possession. A demurrer to this plea was
overruled and judgment entered for the defendants. And that judgment was affirmed in the Court of
Appeal by Lord Chief Justice Coleridge, Lord Justice Baggallay, and Lord Justice Brett, all of whom
delivered concurring opinions, the grounds of which sufficiently appear in the opinion delivered by Lord
Justice Brett (since Lord Esher, M.R.), who said:

"With regard to an action brought upon a foreign judgment, the whole doctrine as to fraud is English,
and is to be applied in an action purely English. I am prepared to hold, according to the judgment of the
House of Lords adopting the proposition laid down by De Grey, C.J., that if the judgment upon which
the action is brought was procured from the foreign court by the successful fraud of the party who is
seeking to enforce it, the action in the English court will not lie. This proposition is absolute and without
any limitation, and as the Lord Chief Justice has pointed out, is founded on the doctrine that no party
in an English court shall be able to take advantage of his own wrongful act or, as it may be stated in
other language, that no obligation can be enforced in an English court of justice which has been
procured by the fraud of the person relying upon it as an obligation. . . . I will assume that in the suit in
the Russian courts, the plaintiff's fraud was alleged by the defendants, and that they gave evidence in
support of the charge. I will assume even that the defendants gave the very same evidence which they
propose to adduce in this action. Nevertheless the defendants will not be debarred at the trial of this
action from making the same charge of fraud and from adducing the same evidence in support of it,
and if the High Court of Justice is satisfied that the allegations of the defendants are true and that the
fraud was committed, the defendants will be entitled to succeed in the present action. It has been
contended that the same issue ought not to be tried in an English court which was tried in the Russian
courts, but I agree that the question whether the Russian courts were deceived never could be an issue
in the action tried before them. . . . In the present case, we have had to consider the question fully, and
according to the best opinion which I can form, fraud committed by a party to a suit for the purpose of
deceiving a foreign court is a defense to an action in this country founded upon the judgment of that
foreign court. It seems to me that if we were to accede to the argument for the plaintiff, the result would
be that a plausible deceiver would succeed, whereas a deceiver who is not plausible would fail. I cannot
think that plausible fraud ought to be upheld in any court of justice in England. I accept the whole
doctrine, without any limitation, that whenever a foreign judgment has been obtained by the fraud of
the party relying upon it, it cannot be maintained in the courts of this country, and further that nothing
ought to persuade an English court to enforce a judgment against one party which has been obtained
by the fraud of the other party to the suit in the foreign court."

10 Q.B.D. 295, 305-308.

The same view was affirmed and acted on in the same court by Lords Justices Lindley and Bowen
in Vadala v. Lawes (1890), 25 Q.B.D. 310, 317-320, and by Lord Esher and Lord Justice Lopes
in Crozat v. Brogden [1894] 2 Q.B. 30, 34-35.

In the case at bar, the defendants offered to prove in much detail that the plaintiffs presented to the
French court of first instance and to the arbitrator appointed by that court, and upon whose report its
judgment was largely based, false and fraudulent statements and accounts against the defendants by
which the arbitrator and the French courts were deceived and misled, and their judgments were based
upon such false and fraudulent statements and accounts. This offer, if satisfactorily proved, would,
according to the decisions of the English Court of Appeal in Abouloff v. Oppenheimer, Vadala v.
Lawes, and Crozat v. Brogden, above cited, be a sufficient ground for impeaching the foreign judgment
and examining into the merits of the original claim.

But whether those decisions can be followed in regard to foreign judgments, consistently with our own
decisions as to impeaching domestic judgments for fraud, it is unnecessary in this case to determine,
because there is a distinct and independent ground upon which we are satisfied that the comity of our
nation does not require us to give conclusive effect to the judgments of the courts of France, and that
ground is the want of reciprocity on the part of France as to the effect to be given to the judgments of
this and other foreign countries.

In France, the royal ordinance of June 15, 1629, art. 121, provided as follows:

"Judgments rendered, contracts or obligations recognized, in foreign kingdoms and sovereignties for
any cause whatever shall have no lien or execution in our kingdom. Thus, the contracts shall stand for
simple promises, and, notwithstanding the judgments, our subjects against whom they have been
rendered may contest their rights anew before our judges."

Touillier, Droit Civil, lib. 3, tit. 3, c. 6, sect. 3, No. 77.

By the French Code of Civil Procedure, art. 546,

"Judgments rendered by foreign tribunals, and acts acknowledged before foreign officers, shall not be
capable of execution in France except in the manner and in the cases provided by articles 2123 and
2128 of the Civil Code," which are as follows: by article 2123,

"A lien cannot arise from judgments rendered in a foreign country except so far as they have been
declared executory by a French tribunal, without prejudice to provisions to the contrary which may exist
in public laws and treaties."

By article 2128,

"Contracts entered into in a foreign country cannot give a lien upon property in France if there are no
provisions contrary to this principle in public laws or in treaties."
Touillier, ubi sup., No. 84.

The defendants in their answer cited the above provisions of the statutes of France, and alleged, and
at the trial offered to prove, that by the construction given to these statutes by the judicial tribunals of
France, when the judgments of tribunals of foreign countries against the citizens of France are sued
upon in the courts of France, the merits of the controversies upon which those judgments are based
are examined anew, unless a treaty to the contrary effect exists between the Republic of France and
the country in which such judgment is obtained (which is not the case between the Republic of France
and the United States), and that the tribunals of the Republic of France give no force and effect, within
the jurisdiction of that country, to the judgments duly rendered by courts of competent jurisdiction of the
United States against citizens of France after proper personal service of the process of those courts
has been made thereon in this country. We are of opinion that this evidence should have been admitted.

In Odwin v. Forbes (1817), President Henry, in the Court of Demerara, which was governed by the
Dutch law and was, as he remarked, "a tribunal foreign to and independent of that of England,"
sustained a plea of an English certificate in bankruptcy, upon these grounds:

"It is a principle of their law, and laid down particularly in the ordinances of Amsterdam, . . . that the
same law shall be exercised towards foreigners in Amsterdam as is exercised with respect to citizens
of that state in other countries, and upon this principle of reciprocity, which is not confined to the City
of Amsterdam, but pervades the Dutch laws, they have always given effect to the laws of that country
which has exercised the same comity and indulgence in admitting theirs; . . . that the Dutch bankrupt
laws proceed on the same principles as those of the English; that the English tribunals give effect to
the Dutch bankrupt laws, and that, on the principle of reciprocity and mutual comity, the Dutch tribunals,
according to their own ordinances, are bound to give effect to the English bankrupt laws when duly
proved, unless there is any express law or ordinance prohibiting their admission."

And his judgment was affirmed in the Privy Council on appeal. Case of Odwin v. Forbes, pp. 89, 159-
161, 173-176; (1817) Buck Bankr.Cas. 57, 64.

President Henry, at page 76 of his Treatise on Foreign Law, published as a preface to his report of that
case, said:

"This comity in giving effect to the judgments of other tribunals is generally exercised by states under
the same sovereign, on the ground that he is the fountain of justice in each, though of independent
jurisdiction, and it has also been exercised in different states of Europe with respect to foreign
judgments, particularly in the Dutch states, who are accustomed by the principle of reciprocity to give
effect in their territories to the judgments of foreign states which show the same comity to theirs; but
the tribunals of France and England have never exercised this comity to the degree that those of
Holland have, but always required a fresh action to be brought, in which the foreign judgment may be
given in evidence. As this is a matter of positive law and internal policy in each state, no opinion need
be given. Besides, it is a mere question of comity, and perhaps it might be neither politic nor prudent,
in two such great states, to give indiscriminate effect to the judgment of each other's tribunals, however
the practice might be proper or convenient in federal states or those under the same sovereign."

It was that statement which appears to have called forth the observations of Mr. Justice Story, already
cited:

"Holland seems at all times, upon the general principle of reciprocity, to have given great weight to
foreign judgments, and in many cases, if not in all cases, to have given to them a weight equal to that
given to domestic judgments wherever the like rule of reciprocity with regard to Dutch judgments has
been adopted by the foreign country whose judgment is brought under review. This is certainly a very
reasonable rule, and may perhaps hereafter work itself firmly into the structure of international
jurisprudence."

Story on Conflict of Laws 618.

This rule, though never either affirmed or denied by express adjudication in England or America, has
been indicated, more or less distinctly, in several of the authorities already cited.
Lord Hardwicke threw out a suggestion that the credit to be given by one court to the judgment of a
foreign court might well be affected by "their proceeding both by the same rules of law." Otway v.
Ramsay, 4 B. & C. 414-416, note.

Lord Eldon, after saying that "natural law" (evidently intending the law of nations) "requires the courts
of this country to give credit to those of another for the inclination and power to do justice," added that

"if it appears in evidence that persons suing under similar circumstances neither had met nor could
meet with justice, that fact cannot be immaterial as an answer to the presumption."

Wright v. Simpson, 6 Ves. 714, 730.

Lord Brougham, presiding as lord Chancellor in the House of Lords, said:

"The law, in the course of procedure abroad, sometimes differs so mainly from ours in the principles
upon which it is bottomed that it would seem a strong thing to hold that our courts were bound
conclusively to give execution to the sentence of foreign courts when, for aught we know, there is not
anyone of those things which are reckoned the elements or the corner stones of the due administration
of justice present to the procedure in these foreign courts."

Houlditch v. Donegal, 8 Bligh, N.R. 301, 338.

Chief Justice Smith, of New Hampshire, in giving reasons why foreign judgments or decrees, founded
on the municipal laws of the state in which they are pronounced, are not conclusive evidence of debt,
but prima facie evidence only, said:

"These laws and regulations may be unjust, partial to citizens, and against foreigners; they may operate
injustice to our citizens, whom we are bound to protect; they may be, and the decisions of courts
founded on them, just cause of complaint against the supreme power of the state where rendered. To
adopt them is not merely saying that the courts have decided correctly on the law, but it is approbating
the law itself."

Bryant v. Ela, Smith (N.H.) 396, 404.

Mr. Justice Story said:

"If a civilized nation seeks to have the sentences of its own courts of any validity elsewhere, they ought
to have a just regard to the rights and usages of other civilized nations, and the principles of public and
national law in the administration of justice."

Bradstreet v. Neptune Ins. Co., 3 Sumner 600, 608.

Mr. Justice Woodbury said that judgments in personam, rendered under a foreign government,

"are, ex commitate, treated with respect according to the nature of the judgment and the character of
the tribunal which rendered it and the reciprocal mode, if any, in which that government treats our
judgments,"

and added "nor can much comity be asked for the judgments of another nation which, like France, pays
no respect to those of other countries." Burnham v. Webster, 1 Woodb. & Min. 172, 175, 179.

Mr. Justice Cooley said: "True comity is equality. We should demand nothing more and concede
nothing less." McEwan v. Zimmer, 38 Mich. 765, 769.

Mr. Wheaton said:

"There is no obligation recognized by legislators, public authorities, and publicists to regard foreign
laws, but their application is admitted only from considerations of utility and the mutual convenience of
states -- ex commitate, ob reciprocam utilitatem."
"The general comity, utility, and convenience of nations have, however, established a usage among
most civilized states by which the final judgments of foreign courts of competent jurisdiction are
reciprocally carried into execution."

Wheaton's International Law (8th ed.) 79, 147.

Since Story, Kent, and Wheaton wrote their commentaries, many books and essays have been
published upon the subject of the effect to be allowed by the courts of one country to the judgments of
another, with references to the statutes and decisions in various countries. Among the principal ones
are Foelix, Droit International Prive (4th ed., by Demangeat, 1866) lib. 2, tits. 7, 8; Moreau, Effets
Internationaux des Jugements (1884); Piggott, on Foreign Judgments (2d ed., 1884); Constant, De
l'Execution des Jugements Etrangers (2d ed., 1890), giving the text of the articles of most of the modern
codes upon the subject, and of French treaties with Italian, German, and Swiss states, and numerous
papers in Clunet's Journal de Droit International Prive, established in 1874 and continued to the present
time. For the reasons stated at the outset of this opinion, we have not thought it important to state the
conflicting theories of continental commentators and essayists as to what each may think the law ought
to be, but have referred to their works only for evidence of authoritative declarations, legislative or
judicial, of what the law is.

By the law of France, settled by a series of uniform decisions of the Court of Cassation, the highest
judicial tribunal, for more than half a century, no foreign judgment can be rendered executory in France
without a review of the judgment au fond (to the bottom), including the whole merits of the cause of
action on which the judgment rests. Pardessus, Droit Commercial 1488; Bard, Precis de Droit
International (1883) nos. 234-239; Story on Conflict of Laws 615-617; Pigggott 452; Westllake on
Private International Law (3d ed., 1890) 350.

A leading case was decided by the Court of Cassation on April 19, 1819, and was as follows: a contract
of partnership was made between Holker, a French merchant, and Parker, a citizen of the United
States. Afterwards, and before the partnership accounts were settled, Parker came to France, and
Holker sued him in the Tribunal of Commerce of Paris. Parker excepted on the ground that he was a
foreigner, not domiciled in France, and obtained a judgment, affirmed on appeal, remitting the matter
to the American courts -- obtint son renvoi devant les tribunaux Americains. Holker then sued Parker
in the Circuit Court of the United States for the District of Massachusetts, and in 1814 obtained a
judgment there ordering Parker to pay him $529,949. One branch of the controversy had been brought
before this Court in 1813. Holker v. Parker, 7 Cranch 436. Holker, not being able to obtain execution of
that judgment in America because Parker had no property there and continued to reside in Paris,
obtained from a French judge an order declaring the judgment executory. Upon Parker's application to
nullify the proceeding, the Royal Court of Paris, reversing the judgment of a lower court, set aside that
order, assigning these reasons:

"Considering that judgments rendered by foreign courts have neither effect nor authority in France; that
this rule is doubtless more particularly applicable in favor of Frenchmen, to whom the King and his
officers owe a special protection, but that the principle is absolute, and may be invoked by all persons,
without distinction, being founded on the independence of states; that the ordinance of 1629, in the
beginning of its article 121, lays down the principle in its generality when it says that judgments rendered
in foreign kingdoms and sovereignties for any cause whatever shall have no execution in the Kingdom
of France, and that the Civil Code, art. 2123, gives to this principle the same latitude when it declares
that a lien cannot result from judgments rendered in a foreign country, except so far as they have been
declared executory by a French tribunal -- which is not a matter of mere form, like the granting in past
times of a pareatis from one department to another for judgments rendered within the Kingdom, but
which assumes, on the part of the French tribunals, a cognizance of the cause, and a full examination
of the justice of the judgment presented for execution, as reason demands, and that this has always
been practiced in France, according to the testimony of our ancient authorities; that there may result
from this an inconvenience where the debtor, as is asserted to have happened in the present case,
removes his property and his person to France, while keeping his domicile in his native country; that it
is for the creditor to be watchful, but that no consideration can impair a principle on which rests the
sovereignty of governments, and which, whatever be the case, must preserve its whole force."
The court therefore adjudged that, before the tribunal of first instance, Holker should state the grounds
of his action, to be contested by Parker, and to be determined by the court upon cognizance of the
whole cause. That judgment was confirmed, upon deliberate consideration, by the Court of Cassation,
for the reasons that the ordinance of 1629 enacted, in absolute terms and without exception, that foreign
judgments should not have execution in France; that it was only by the Civil Code and the Code of Civil
Procedure that the French tribunals had been authorized to declare them executory; that therefore the
ordinance of 1629 had no application; that the articles of the Codes referred to did not authorize the
courts to declare judgments rendered in a foreign country executory in France without examination;
that such an authorization would be as contrary to the institution of the courts as would be the award
or the refusal of execution arbitrarily and at will, would impeach the right of sovereignty of the French
government, and was not in the intention of the legislature, and that the Codes made no distinction
between different judgments rendered in a foreign country, and permitted the judges to declare them
all executory, and therefore those judgments, whether against a Frenchman or against a foreigner,
were subject to examination on the merits. Holker v. Parker, Merlin, Questions do Droit, Jugement,
14, No. 2.

The Court of Cassation has ever since constantly affirmed the same view. Moreau, No. 106, note, citing
many decisions; Clunet, 1882, p. 166. In Clunet, 1894, p. 913, note, it is said to be

"settled by judicial decisions -- il est de jurisprudence -- that the French courts are bound, in the
absence of special diplomatic treaties, to proceed to the revision on the whole merits -- au fond -- of
foreign judgments, execution of which is demanded of them," citing, among other cases, a decision of
the Court of Cassation on February 2, 1892, by which it was expressly held to result from the articles
of the Codes above cited

"that judgments rendered in favor of a foreigner against a Frenchman, by a foreign court, are subject,
when execution of them is demanded in France, to the revision of the French tribunals which have the
right and the duty to examine them, both as to the form and as to the merits."

Sirey, 1892, 1, 201.

In Belgium the Code of Civil Procedure of 1876 provides that if a treaty on the basis of reciprocity be in
existence between Belgium and the country in which the foreign judgment has been given, the
examination of the judgment in the Belgian courts shall bear only upon the questions whether it
"contains nothing contrary to public order, to the principles of the Belgian public order;" whether, by the
law of the country in which it was rendered, it has the force of res judicata; whether the copy is duly
authenticated; whether the defendant's rights have been duly respected, and whether the foreign court
is not the only competent court, by reason of the nationality of the plaintiff. Where, as is the case
between Belgium and France, there is no such treaty, the Belgian Court of Cassation holds that the
foreign judgment may be reexamined upon the merits. Constant, 111, 116; Moreau, No. 189; Clunet,
1887, p. 217; 1888, p. 837; Piggott 439. And in a very recent case, the Civil Tribunal of Brussels held
that,

"considering that the right of revision is an emanation of the right of sovereignty; that it proceeds from
the emporium, and that as such it is within the domain of public law; that from that principle it manifestly
follows that, if the legislature does not recognize executory force in foreign judgments where there
exists no treaty upon the basis of reciprocity, it cannot belong to the parties to substitute their will for
that of the legislature by arrogating to themselves the power of delegating to the foreign judge a portion
of sovereignty."

Clunet, 1894, pp. 164, 165.

In Holland, the effect given to foreign judgments has always depended upon reciprocity, but whether
by reason of Dutch ordinances only or of general principles of jurisprudence does not clearly
appear. Odwin v. Forbes, and Henry on Foreign Law, above cited; Story on Conflict of Laws 618;
Foelix, No. 397, note; Clunet, 1879, p. 369; 1 Ferguson's International Law, 85; Constant, 171; Moreau,
No. 213.

In Denmark, the courts appear to require reciprocity to be shown before they will execute a foreign
judgment. Foelix, Nos. 328, 345; Clunet, 1891, p. 987; Westlale, ubi sup. In Norway, the courts
reexamine the merits of all foreign judgments, even of those of Sweden. Foelix, No. 401; Piggott, 504,
505; Clunet, 1892, p. 296. In Sweden, the principle of reciprocity has prevailed from very ancient times.
The courts give no effect to foreign judgments unless upon that principle, and it is doubtful whether they
will even then unless reciprocity is secured by treaty with the country in which the judgment was
rendered. Foelix, No. 400; Olivecrona, in Clunet, 1880, p. 83; Constant, 191; Moreau, No. 222; Piggott,
503; Westlake, ubi sup.

In the empire of Germany, as formerly in the states which now form part of that empire, the judgments
of those states are mutually executed, and the principle of reciprocity prevails as to the judgments of
other countries. Foelix, Nos. 328, 331, 333-341; Moreau, Nos. 178, 179; Vierhaus, in Piggott, 460-474;
Westlake, ubi sup. By the German Code of 1877,

"compulsory execution of the judgment of a foreign court cannot take place unless its admissibility has
been declared by a judgment of exequatur; . . . the judgment of exequatur is to be rendered without
examining whether the decision is conformable to law;"

but it is not to be granted "if reciprocity is not guaranteed." Constant, 79-81; Piggott, 466. The
Reichsgericht, or imperial court, in a case reported in full in Piggott, has held that an English judgment
cannot be executed in Germany, because, the court said, the German courts, by the Code, when they
execute foreign judgments at all, are "bound to the unqualified recognition of the legal validity of the
judgments of foreign courts," and

"it is therefore an essential requirement of reciprocity that the law of the foreign state should recognize
in an equal degree the legal validity of the judgments of German courts, which are to be enforced by
its courts, and that an examination of their legality, both as regards the material justice of the decision
as to matters of fact or law, and with respect to matters of procedure, should neither be required as a
condition of their execution, by the court ex officio, nor be allowed by the admission of pleas which
might lead to it."

Piggott, 470-471. See also Clunet, 1882, p. 35; 1883, p. 246; 1884, p. 600.

In Switzerland, by the federal Constitution, civil judgments in one canton are executory throughout the
republic. As to foreign judgments, there is no federal law, each canton having its own law upon the
subject. But civil judgments in one canton are executory other cantons, foreign judgments are executed
according to the rule of reciprocity only. Constant, 193-204; Piggott, 505-516; Clunet, 1887, p. 762;
Westlake, ubi sup. The law upon this subject has been clearly stated by Brocher, President of the Court
of Cassation of Geneva and professor of law in the university there. In his Nouveau Traite de Droit
International Prive (1876) 174, treating of the question whether "it might not be convenient that states
should execute, without reviewing their merits, judgments rendered on the territory of each of them
respectively," he says:

"It would certainly be advantageous for the parties interested to avoid the delays, the conflicts, the
differences of opinion, and the expenses resulting from the necessity of obtaining a new judgment in
each locality where they should seek execution. There might thence arise for each sovereignty a
juridical or moral obligation to lend a strong hand to foreign judgments. But would not such an
advantage be counterbalanced, and often surpassed, by the dangers that might arise from that mode
of proceeding? There is here, we believe, a question of reciprocal appreciation and confidence. One
must at the outset inquire whether the administration of the foreign judiciary, whose judgments it is
sought to execute without verifying their merits, presents sufficient guaranties. If the propriety of such
an execution be admitted, there is ground for making it the object of diplomatic treaties. That form alone
can guaranty the realization of a proper reciprocity. It furnishes, moreover, to each state the means of
acting upon the judicial organization and procedure of other states."

In an article in the Journal, after a review of the Swiss decisions, he recognizes and asserts that "it
comes within the competency of each canton to do what seems to it proper in such matters." Clunet,
1879, pp. 88, 94. And in a later treatise he says:

"We cannot admit that the recognition of a state as sovereign ought necessarily to have as a
consequence the obligation of respecting and executing the judicial decisions rendered by its tribunals.
In strict right, the authority of such acts does not extend beyond the frontier. Each sovereignty
possesses in particular, and more or less in private, the territory subject to its power. No other can
exercise there an act of its authority. This territorial independence finds itself, in principle, directly
included in the very act by which one nation recognizes a foreign state as a sovereign; but there cannot
result therefrom a promise to adopt, and to cause to be executed upon the national territory, judgments
rendered by the officials of the foreign state, whoever they may be. That would be an abdication of its
own sovereignty, and would bind it in such sort as to make it an accomplice in acts often injurious, and
in some cases even criminal. Such obligations suppose a reciprocal confidence. They are not
undertaken, moreover, except upon certain conditions, and by means of a system of regulations
intended to prevent or to lessen the dangers which might result from them."

3 Cours de Droit International Prive (1885) 126, 127.

In Russia, by the Code of 1864, "the judgments of foreign tribunals shall be rendered executory
according to the rules established by reciprocal treaties and conventions," and where no rules have
been established by such treaties, are to be "put in execution in the empire only after authorization
granted by the courts of the empire," and

"in deciding upon demands of this kind the courts do not examine into the foundation of the dispute
adjudged by the foreign tribunals, but decide only whether the judgment does not contain dispositions
which are contrary to the public order, or which are not permitted by the laws of the empire."

Constant, 183-185. Yet a chamber of the Senate of St. Petersburg, sitting as a Court of Cassation, and
the highest judicial tribunal of the empire in civil matters, has declined to execute a French judgment
upon the grounds that, by the settled law of Russia,

"it is a principle in the Russian empire that only the decisions of the authorities to whom jurisdiction has
been delegated by the sovereign power have legal value by themselves and of full right,"

and that, "in all questions of international law, reciprocity must be observed and maintained as a
fundamental principle."Adam v. Schipoff, Clunet, 1884, pp. 45, 46, 134. And Professor Englemann, of
the Russian University of Dorpat, in an able essay, explaining that and other Russian decisions, takes
the following view of them:

"The execution of a treaty is not the only proof of reciprocity. . . . It is necessary to commit the
ascertainment of the existence of reciprocity to the judicial tribunals, for the same reasons for which
there is conferred upon them the right to settle all questions incident to the cause to be adjudged. The
existence of reciprocity between two states ought to be proved in the same manner as all the positive
facts of the case. . . . It is true that the principle of reciprocity is a principle not of right, but of policy, yet
the basis of the principle of all regular and real policy is also the fundamental principle of right, and the
point of departure of all legal order -- the suum cuique. This last principle comprehends right,
reciprocity, utility, and reciprocity is the application of right to policy. . . . Let this principle be applied
wherever there is the least guaranty or even a probability of reciprocity, and the cognizance of this
question be committed to the judicial tribunals, and one will arrive at important results, which, on their
side, will touch the desired end -- international accord. But for this it is indispensable that the application
of this principle should be entrusted to judicial tribunals, accustomed to decide affairs according to right,
and not to administrative authorities, which look above all to utility, and are accustomed to be moved
by political reasons, intentions, and even passions."

Clunet, 1884, pp. 120-122. But it would seem that no foreign judgment will be executed in Russia unless
reciprocity is secured by treaty. Clunet, 1884, pp. 46, 113, 139, 140, 602.

In Poland, the provisions of the Russian Code are in force, and the Court of Appeal of Warsaw has
decided that where there is no treaty, the judgments of a foreign country cannot be executed, because

"in admitting a contrary conclusion, there would be impugned one of the cardinal principles of
international relations, namely the principle of reciprocity, according to which each state recognizes
juridical rights and relations, originating or established in another country, only in the measure in which
the latter, in its turn, does not disregard the rights and relations existing in the former."

Clunet, 1884, pp. 494-495.

In Roumania, it is provided by Code that

"judicial decisions rendered in foreign countries cannot be executed in Roumania except in the same
manner in which Roumanian judgments are executed in the country in question, and provided they are
declared executory by competent Roumanian judges," and this article seems to be held to require
legislative reciprocity.

Moreau, No. 219; Clunet, 1879, p. 351; 1885, p. 537; 1891, p. 452; Piggott, 495.

In Bulgaria, by a resolution of the supreme court in 1881,

"the Bulgarian judges should, as a general rule, abstain from entering upon the merits of the foreign
judgment. They ought only to inquire whether the judgment submitted to then does not contain
dispositions contrary to the public order and to the Bulgarian laws."

Constant, 129, 130; Clunet, 1886, p. 570. This resolution closely follows the terms of the Russian Code,
which, as has been seen, has not precluded applying the principle of reciprocity.

In Austria, the rule of reciprocity does not rest upon any treaty or legislative enactment, but has been
long established, by imperial decrees and judicial decisions, upon general principles of jurisprudence.
Foelix, No. 331; Constant, 100-108; Moreau, No. 185; Weiss, Traite de Droit International (1886) 950;
Clunet, 1891, p. 1003; 1894, p. (1886) 980; Clunet, 1891, p. 1003; 1894, p. 908; Piggott, 434. In
Hungary, the same principles were always followed as in Austria, and reciprocity has been made a
condition by a law of 1880. Constant, 109; Moreau, No. 186, and note; Piggott, 436; Weiss, ubi sup.

In Italy, before it was united into one kingdom, each state had its own rules. In Tuscany and in Modena,
in the absence of treaty, the whole merits were reviewed. In Parma, as by the French ordinance of
1629, the foreign judgment was subject to fundamental revision if against a subject of Parma. In Naples,
the Code and the decisions followed those of France. In Sardinia, the written laws required above all
the condition of reciprocity, and if that condition was not fulfilled, the foreign judgment was reexaminable
in all respects. Fiore, Effetti Internazionali delle Sentenze (1875) 40-44; Moreau, No. 204. In the papal
states, by a decree of the Pope in 1820,

"the exequatur shall not be granted, except so far as the judgments rendered in the states of his
Holiness shall enjoy the same favor in the foreign countries; this reciprocity is presumed if there is no
particular reason to doubt it."

Toullier, Droit Civil, lib. 3, tit. 3, c. 6, 3, No. 93. And see Foelix, No. 343; Westlake, ubi sup. In the
Kingdom of Italy, by the Code of Procedure of 1865, "executory force is given to the judgments of
foreign judicial authorities by the Court of Appeal in whose jurisdiction they are to be executed, by
obtaining a judgment on an exequatur in which the court examines (a) if the judgment has been
pronounced by a competent judicial authority; (b) if it has been pronounced, the parties being regularly
cited; (c) if the parties have been legally represented or legally defaulted; (d) if the judgment contains
dispositions contrary to public order or to the internal public law of the realm."

Constant, 157. In 1874, the Court of Cassation of Turin,

"considering that in international relations is admitted the principle of reciprocity, as that which has its
foundation in the natural reason of equality of treatment, and in default thereof opens the way to the
exercise of the right of retaliation," and that the French courts examine the merits of Italian judgments
before allowing their execution in France, decided that the Italian courts of appeal, when asked to
execute a French judgment, ought not only to inquire into the competency of the foreign court, but also
to review the merits and the justice of the controversy. Levi v. Pitre, in Rossi, Execuzione delle
Sentenze Straniere (1st ed. 1875) 70, 284, and in Clunet, 1879, p. 295. Some commentators, however,
while admitting that decision to be most authoritative, have insisted that it is unsound, and opposed to
other Italian decisions, to which we have not access. Rossi, ubi sup. (2d ed. 1890) 92; Fiore, 142-143;
Clunet, 1878, p. 237; Clunet, 1879, pp. 296, 305; Piggott, 483; Constant, 161.

In the principality of Monaco, foreign judgments are not executory, except by virtue of a special
ordinance of the prince, upon a report of the Advocate General. Constant, 169; Piggott, 488.
In Spain, formerly, foreign judgments do not appear to have been executed at all. Foelix, No. 398;
Moreau, No. 197; Silvela, in Clunet, 1881, p. 20. But by the Code of 1855, revised in 1881 without
change in this respect, "judgments pronounced in foreign countries shall have in Spain the force that
the respective treaties given them; if there are no special treaties with the nation in which they have
been rendered, they shall have the same force that is given by the laws of that nation to Spanish
executory judgments; if the judgment to be executed proceeds from a nation by whose jurisprudence
effect is not given to the judgments pronounced by Spanish tribunals, it shall have no force in Spain,"
and "application for the execution of judgments pronounced in foreign countries shall be made to the
Supreme Tribunal of Justice, which, after examining an authorized translation of the foreign judgment,
and after hearing the party against whom it is directed and the public minister, shall decide whether it
ought or ought not to be executed."

Constant, 141-142; Piggott, 499-500. A case in which the Supreme Court of Spain in 1880 ordered
execution of a French judgment after reviewing its merits is reported in Clunet, 1881, p. 365. In another
case, in 1888, the same court, after hearing the parties and the public minister, ordered execution of a
Mexican judgment. The public minister, in his demand for its execution, said:

"Our law of civil procedure, inspired, to a certain point, by the modern theories of international law
which, recognizing among civilized nations a true community of right, and considering mankind as a
whole, in which nations occupy a position identical with that of individuals towards society, gives
authority in Spain to executory judgments rendered by foreign tribunals, even in the absence of special
treaty, provided that those countries do not proscribe the execution there of our judgments, and under
certain conditions, which, if they limit the principle, are inspired by the wish of protecting our sovereignty
and by the supreme exigencies of justice. When nothing appears either for or against as to the authority
of the judgments of our courts in the foreign country, one should not put an obstacle to the fulfillment,
in our country, of judgments emanating from other nations, especially when the question is of a country
which, by its historic origin, its language, its literature, and by almost the identity of its customs, its
usages, and its social institutions, has so great a connection with our own, which obliges us to maintain
with it the most intimate relations of friendship and courtesy."

And he pointed out that Mexico, by its Code, had adopted reciprocity as a fundamental principle.

Among the reasons assigned by the court for ordering the Mexican judgment to be executed was that
"there exists in Mexico no precedent of jurisprudence which refuses execution to judgments rendered
by the Spanish tribunals." Clunet, 1891, pp. 288-292.

In Portugal, foreign judgments, whether against a Portuguese or against a foreigner, are held to be
reviewable upon the merits before granting execution thereof. Foelix, No. 399; Clunet, 1875, pp. 54,
448; Moreau, No. 217; Constant, 176-180; Westlake, ubi sup.

In Greece, by the provisions of the Code of 1834, foreign judgments both parties to which are foreigners
are enforced without examination of their merits, but if one of the parties is a Greek, they are not
enforced if found contradictory to the facts proved or if they are contrary to the prohibitive laws of
Greece. Foelix, No. 396; Constant, 151, 152; Moreau, No. 202; Saripolos, in Clunet, 1880, p. 173;
Piggott, 475.

In Egypt, under the influence of European jurisprudence, the Code of Civil Procedure has made
reciprocity a condition upon which foreign judgments are executed. Constant, 136; Clunet, 1887, pp.
98, 228; 1889, p. 322.

In Cuba and in Porto Rico, the Codes of Civil Procedure are based upon the Spanish Code of 1855.
Piggott, 435, 503. In Hayti, the Code reenacts the provisions of the French Code. Constant, 153;
Moreau, No. 203; Piggott, 460.

In Mexico, the system of reciprocity has been adopted by the Code of 1884 as the governing principle.
Constant, 168; Clunet, 1891, p. 290.

The rule of reciprocity likewise appears to have generally prevailed in South America. In Peru, foreign
judgments do not appear to be executed without examining the merits unless when reciprocity is
secured by treaty. Clunet, 1879, pp. 266, 267; Piggott, 548. In Chili, there appears to have been no
legislation upon the subject, but, according to a decision of the Supreme Court of Santiago in 1886,
"the Chilian tribunals should not award an exequatur, except upon decisions in correct form, and also
reserving the general principle of reciprocity." Clunet, 1889, p. 135; Constant, 131-132.

In Brazil, foreign judgments are not executed unless because of the country in which they were
rendered admitting the principle of reciprocity or because of a placet of the government of Brazil, which
may be awarded according to the circumstances of the case. Constant, 124, and note; Moreau, No.
192; Piggott, 543-546; Westlake, ubi sup. In the Argentine Republic, the principle of reciprocity was
maintained by the courts, and was affirmed by the Code of 1878 as a condition sine qua non of the
execution of foreign judgments, but has perhaps been modified by later legislation. Moreau, No. 218;
Palomeque, in Clunet, 1887, pp. 539-558.

It appears, therefore, that there is hardly a civilized nation on either continent which by its general law
allows conclusive effect to an executory foreign judgment for the recovery of money. In France and in
a few smaller states -- Norway, Portugal, Greece, Monaco, and Hayti -- the merits of the controversy
are reviewed as of course, allowing to the foreign judgment, at the most, no more effect than of
being prima facie evidence of the justice of the claim. In the great majority of the countries on the
continent of Europe -- in Belgium, Holland, Denmark, Sweden, Germany, in many cantons of
Switzerland, in Russia and Poland, in Roumania, in Austria and Hungary (perhaps in Italy), and in Spain
-- as well as in Egypt, in Mexico, and in a great part of South America, the judgment rendered in a
foreign country is allowed the same effect only as the courts of that country allow to the judgments of
the country in which the judgment in question is sought to be executed.

The prediction of Mr. Justice Story (in 618 of his Commentaries on the Conflict of Laws, already cited)
has thus been fulfilled, and the rule of reciprocity has worked itself firmly into the structure of
international jurisprudence.

The reasonable, if not the necessary, conclusion appears to us to be that judgments rendered in
France, or in any other foreign country by the laws of which our own judgments are reviewable upon
the merits are not entitled to full credit and conclusive effect when sued upon in this country, but
are prima facie evidence only of the justice of the plaintiffs' claim.

In holding such a judgment, for want of reciprocity, not to be conclusive evidence of the merits of the
claim, we do not proceed upon any theory of retaliation upon one person by reason of injustice done to
another, but upon the broad ground that international law is founded upon mutuality and reciprocity,
and that by the principles of international law recognized in most civilized nations, and by the comity of
our own country, which it is our judicial duty to known and to declare, the judgment is not entitled to be
considered conclusive.

By our law at the time of the adoption of the Constitution, a foreign judgment was considered as prima
facie evidence, and not conclusive. There is no statute of the United States, and no treaty of the United
States with France or with any other nation, which has changed that law or has made any provision
upon the subject. It is not to be supposed that if any statute or treaty had been or should be made, it
would recognize as conclusive the judgments of any country which did not give like effect to our own
judgments. In the absence of statute or treaty, it appears to us equally unwarrantable to assume that
the comity of the United States requires anything more.

If we should hold this judgment to be conclusive, we should allow it an effect to which, supposing the
defendants' offers to be sustained by actual proof, it would, in the absence of a special treaty, be entitled
in hardly any other country in Christendom except the country in which it was rendered. If the judgment
had been rendered in this country, or in any other outside of the jurisdiction of France, the French courts
would not have executed or enforced it except after examining into its merits. The very judgment now
sued on would be held inconclusive in almost any other country than France. In England and in the
colonies subject to the law of England, the fraud alleged in its procurement would be a sufficient ground
for disregarding it. In the courts of nearly every other nation, it would be subject to reexamination either
merely because it was a foreign judgment or because judgments of that nation would be reexaminable
in the courts of France.

For these reasons, in the action at law, the

Judgment is reversed, and the cause remanded to the circuit court, with directions to set aside the
verdict and to order a new trial.

For the same reasons, in the suit in equity between these parties, the foreign judgment is not a bar,
and therefore the

Decree dismissing the bill is reversed the plea adjudged bad, and the cause remanded to the circuit
court for further proceedings not inconsistent with this opinion.

* Bartlet v. Knight (1805), 1 Mass. 401, 405; Buttrick v. Allen (1811), 8 Mass. 273; Bissell v.
Briggs (1813), 9 Mass. 462, 464; Hall v. Williams (1828), 6 Pick. 232, 238; Gleason v. Dodd (1842), 4
Met. 333, 336; Wood v. Gamble (1853), 11 Cush. 8; McKim v. Odom (1835), 12 Me. 94, 96; Bank v.
Butman (1848), 29 Me. 19, 21; Bryant v. Ela (1815), Smith 396, 404; Thurber v. Blackbourne (1818), 1
N.H. 242; Robinson v. Prescott (1828), 4 N.H. 450; Taylor v. Barron (1855), 10 Fost. 78, 95; King v.
Van Gilder (1791), 1 D.Chip. 59; Rathbone v. Terry (1837), 1 R.I. 73, 76; Aldrich v. Kinney (1822), 4
Conn. 380, 382; Hitchcock v. Aicken (1803), 1 Caines 460; Smith v. Lewis (1808), 3 Johns. 157,
159; Taylor v. Bryden (1811), 8 Johns. 173; Andrews v. Montgomery (1821), 19 Johns. 162,
165; Starbuck v. Murray (1830), 5 Wend. 148, 155; Benton v. Burgot (1823), 10 S. & R. 240-
242; Barney v. Patterson (1824), 6 H. & J. 182, 202, 203; Taylor v. Phelps (1827), 1 H. & G. 492,
503; Rogers v. Coleman (1808), Hardin 413-414; Williams v. Preston (1830), 3 J. J. Marsh. 600, 601.

MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN, MR. JUSTICE
BREWER, and MR. JUSTICE JACKSON, dissenting.

Plaintiffs brought their action on a judgment recovered by them against the defendants in the courts of
France, which courts had jurisdiction over person and subject matter, and in respect of which judgment
no fraud was alleged, except in particulars contested in and considered by the French courts. The
question is whether, under these circumstances and in the absence of a treaty or act of Congress, the
judgment is reexaminable upon the merits. This question I regard as one to be determined by the
ordinary and settled rule in respect of allowing a party who has had an opportunity to prove his case in
a competent court to retry it on the merits, and it seems to me that the doctrine of res judicata applicable
to domestic judgments should be applied to foreign judgments as well, and rests on the same general
ground of public policy -- that there should be an end of litigation.

This application of the doctrine is in accordance with our own jurisprudence, and it is not necessary
that we should hold it to be required by some rule of international law. The fundamental principle
concerning judgments is that disputes are finally determined by them, and I am unable to perceive why
a judgment in personam, which is not open to question on the ground of want of jurisdiction, either
intrinsically or over the parties, or of fraud, or on any other recognized ground of impeachment, should
not be held, inter partes, though recovered abroad, conclusive on the merits.

Judgments are executory while unpaid, but in this country, execution is not given upon a foreign
judgment as such, it being enforced through a new judgment obtained in an action brought for that
purpose.

The principle that requires litigation to be treated as terminated by final judgment, properly rendered, is
as applicable to a judgment proceeded on in such an action as to any other, and forbids the allowance
to the judgment debtor of a retrial of the original cause of action, as of right, in disregard of the obligation
to pay arising on the judgment, and of the rights acquired by the judgment creditor thereby.

That any other conclusion is inadmissible is forcibly illustrated by the case in hand. Plaintiffs in error
were trading copartners in Paris as well as in New York, and had a place of business in Paris at the
time of these transactions and of the commencement of the suit against them in France. The subjects
of the suit were commercial transactions, having their origin, and partly performed, in France under a
contract there made, and alleged to be modified by the dealings of the parties there, and one of the
claims against them was for goods sold to them there. They appeared generally in the case, without
protest, and by counterclaims relating to the same general course of business, a part of them only
connected with the claims against them, became actors in the suit, and submitted to the courts their
own claims for affirmative relief, as well as the claims against them. The courts were competent, and
they took the chances of a decision in their favor. As traders in France, they were under the protection
of its laws, and were bound by its laws, its commercial usages, and its rules of procedure. The fact that
they were Americans and the opposite parties were citizens of France is immaterial, and there is no
suggestion on the record that those courts proceeded on any other ground than that all litigants,
whatever their nationality, were entitled to equal justice therein. If plaintiffs in error had succeeded in
their cross-suit and recovered judgment against defendants in error, and had sued them here on that
judgment, defendants in error would not have been permitted to say that the judgment in France was
not conclusive against them. As it was, defendants in error recovered, and I think plaintiffs in error are
not entitled to try their fortune anew before the courts of this country on the same matters voluntarily
submitted by them to the decision of the foreign tribunal. We are dealing with the judgment of a court
of a civilized country, whose laws and system of justice recognize the general rules in respect to
property and rights between man and man prevailing among all civilized peoples. Obviously the last
persons who should be heard to complain are those who identified themselves with the business of
that country, knowing that all their transactions there would be subject to the local laws and modes of
doing business. The French courts appear to have acted "judicially, honestly, and with the intention to
arrive at the right conclusion," and a result thus reached ought not to be disturbed.

The following view of the rule in England was expressed by Lord Herschell in Nouvion v. Freeman, L.R.
15 App.Cas. 1, 9, quoted in the principal opinion:

"The principle upon which I think our enforcement of foreign judgments must proceed is this, that in a
court of competent jurisdiction, where, according to its established procedure, the whole merits of the
case were open at all events, to the parties, however much they may have failed to take advantage of
them or may have waived any of their rights, a final adjudication has been given that a debt or obligation
exists, which cannot thereafter in that court be disputed, and can only be questioned in an appeal to a
higher tribunal. In such a case, it may well be said that, giving credit to the court of another country, we
are prepared to take the fact that such adjudication has been made as establishing the existence of the
debt or obligation."

But in that connection, the observations made by Mr. Justice Blackburn in Godard v. Gray, L.R. 6 Q.B.
139, 148, and often referred to with approval, may usefully again be quoted:

"It is not an admitted principle of the law of nations that a state is bound to enforce within its territories
the judgments of a foreign tribunal. Several of the continental nations (including France) do not enforce
the judgments of other countries unless where there are reciprocal treaties to that effect. But in England
and in those states which are governed by the common law, such judgments are enforced not by virtue
of any treaty nor by virtue of any statute, but upon a principle very well stated by Parke, B., in Williams
v. Jones, 13 M. & W. 633:"

"Where a court of competent jurisdiction had adjudicated a certain sum to be due from one person to
another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment
may be maintained. It is in this way that the judgments of foreign and colonial courts are supported and
enforced."

"And taking this as the principle, it seems to follow that anything which negatives the existence of that
legal obligation, or excuses the defendant from the performance of it, must form a good defense to the
action. It must be open, therefore, to the defendant to show that the court which pronounced the
judgment had not jurisdiction to pronounce it, either because they exceeded the jurisdiction given to
them by the foreign law or because he, the defendant, was not subject to that jurisdiction, and so far
the foreign judgment must be examinable. Probably the defendant may show that the judgment was
obtained by the fraud of the plaintiff, for that would show that the defendant was excused from the
performance of an obligation thus obtained, and it may be that where the foreign court has knowingly
and perversely disregarded the rights given to an English subject by English law, that forms a valid
excuse for disregarding the obligation thus imposed on him; but we prefer to imitate the caution of the
present lord Chancellor in Castrique v. Imrie, L.R. 4 H.L. 445, and to leave those questions to be
decided when they arise, only observing in the present case, as in that:"

"The whole of the facts appear to have been inquired into by the French courts judicially, honestly, and
with the intention to arrive at the right conclusion; and, having heard the facts as stated before them,
they came to a conclusion which justified them in France in deciding as they did decide. . . ."
"Indeed, it is difficult to understand how the common course of pleading is consistent with any notion
that the judgment was only evidence. If that were so, every count on a foreign judgment must be
demurrable on that ground. The mode of pleading shows that the judgment was considered not as
merely prima facie evidence of that cause of action for which the judgment was given, but as in itself
giving rise at least prima facie to a legal obligation to obey that judgment and pay the sum adjudged.
This may seem a technical mode of dealing with the question, but in truth it goes to the root of the
matter, for if the judgment were merely considered as evidence of the original cause of action, it must
be open to meet it by any counter evidence negativing the existence of that original cause of action. If,
on the other hand, there is a prima facie obligation to obey the judgment of a tribunal having jurisdiction
over the party and the cause, and to pay the sum decreed, the question would be whether it was open
to the unsuccessful party to try the cause over again in a court not sitting as a court of appeal from that
which gave the judgment. It is quite clear that this could not be done where the action is brought on the
judgment of an English tribunal, and, on principle, it seems the same rule should apply where it is
brought on that of a foreign tribunal."

In any aspect, it is difficult to see why rights acquired under foreign judgments do not belong to the
category of private rights acquired under foreign laws. Now the rule is universal in this country that
private rights acquired under the laws of foreign states will be respected and enforced in our courts
unless contrary to the policy or prejudicial to the interests of the state where this is sought to be done,
and, although the source of this rule may have been the comity characterizing the intercourse between
nations, it prevails today by its own strength, and the right to the application of the law to which the
particular transaction is subject is a juridical right.

And without going into the refinements of the publicists on the subject, it appears to me that that law
finds authoritative expression in the judgments of courts of competent jurisdiction over parties and
subject matter.

It is held by the majority of the court that defendants cannot be permitted to contest the validity and
effect of this judgment on the general ground that it was erroneous in law or in fact and the special
grounds relied on are seriatim rejected. In respect of the last of these -- that of fraud -- it is said that it
is unnecessary in this case to decide whether certain decisions cited in regard to impeaching foreign
judgments for fraud could be followed consistently with our own decisions as to impeaching domestic
judgments for that reason,

"because there is a distinct and independent ground upon which we are satisfied that the comity of our
nation does not require us to give conclusive effect to the judgments of the courts of France, and that
ground is the want of reciprocity on the part of France as to the effect to be given to the judgments of
this and other foreign countries."

And the conclusion is announced to be

"that judgments rendered in France or in any other foreign country by the laws of which our own
judgments are reviewable upon the merits are not entitled to full credit and conclusive effect when sued
upon in this country, but are prima facie evidence only of the justice of the plaintiff's claim."

In other words, that, although no special ground exists for impeaching the original justice of a judgment,
such as want of jurisdiction or fraud, the right to retry the merits of the original cause at large, defendant
being put upon proving those merits, should be accorded in every suit on judgments recovered in
countries where our own judgments are not given full effect, on that ground merely.

I cannot yield my assent to the proposition that, because by legislation and judicial decision in France,
that effect is not there given to judgments recovered in this country which, according to our
jurisprudence, we think should be given to judgments wherever recovered (subject, of course, to the
recognized exceptions), therefore we should pursue the same line of conduct as respects the
judgments of French tribunals. The application of the doctrine of res judicata does not rest in discretion,
and it is for the government, and not for its courts, to adopt the principle of retorsion, if deemed under
any circumstances desirable or necessary.

As the court expressly abstains from deciding whether the judgment is impeachable on the ground of
fraud, I refrain from any observations on that branch of the case.
MR. JUSTICE HARLAN, MR. JUSTICE BREWER, and MR. JUSTICE JACKSON concur in this dissent

WARE v. HYLTON, (1796)

Argued: Decided: February 1, 1796
Error from the Circuit Court for the District of Virginia. The action was brought by William Jones, (but
as he died, pendente lite, his Administrator was duly substituted as Plaintiff in the cause) surviving
partner of Farrel and Jones, subjects of the king of Great Britain, against Daniel Hylton & Co. and
Francis Eppes, citizens of Virginia, on a bond, for the penal sum of 2976 11s. 6d. sterling, dated the
7th July, 1774.

The Defendants pleaded, 1st, Payment; and, also, by leave of the court, the following additional pleas
in bar of the action.

2nd. That the Plaintiff ought not to have and maintain his action, aforesaid, against them, for three
thousand one hundred and eleven and one ninth dollars, equal to nine hundred and thirty three pounds
fourteen shillings, part of the debt in the declaration mentioned, because they say, that, on the fourth
day of July, in the year one thousand seven hundred and seventy six, they, the said Defendants,
became citizens of the state of Virginia, and have ever since remained citizens thereof, and residents
therein; and, that the Plaintiff, on the said fourth day of July, in the year 1776, and the said Joseph
Farrel were, and from the time of their nativity ever had been, and always since have been, and the
Plaintiff still is a British subject, owing, yielding and paying allegiance to the King of Great Britain; which
said King of Great Britain, and all his subjects, as well the Plaintiff as others, were, on the said fourth
day of July, in the year 1776, and so continued until the third of September, in the year 1783, enemies
of, and at open war with, the state of Virginia, and the United States of America: and, that being so
enemies, and at open war as aforesaid, the legislature of the state of Virginia did, at their session begun
and held in the city of Williamsburgh, on Monday the twentieth day of October, in the year 1777, pass
an act, entitled 'an act for sequestering British property, enabling those indebted [3 U.S. 199, 200] to
British subjects to pay off such debts, and directing the proceedings in suits where such subjects are
parties,' whereby it was enacted, 'that it may and shall be lawful for any citizen of this Commonwealth,
owing money to a subject of Great Britain to pay the same, or any part thereof, from time to time, as he
shall think fit, into the said loan office, taking thereout a certificate for the same, in the name of the
creditor, with an endorsement under the hand of the commissioner of the said office, expressing the
name of the payer, and shall deliver such certificate to the Governor and council, whose receipt shall
discharge him from so much of the said debt.' And the Defendants say, that the said Daniel L. Hylton
and Co. did, on the 26th day of April, in the year 1780, in the county of Henrico, and in the state of
Virginia, while the said recited act continued in full force, in pursuance thereof, pay into the loan office
of this Commonwealth, on account of the debt in the declaration mentioned, the sum of 3111-1-9
dollars, equal to 933:14, and did take out a certificate for the same, in the name of Farell and Jones, in
the declaration mentioned, as creditors, with an endorsement under the hand of the commissioner of
the said office, expressing the name of the payer, which certificate they, the Defendants, then delivered
to the Governor and Council, who gave a receipt therefor, in conformity to the directions of the said act,
in the words and figures following, to wit: 'Received into the Councils' office, a certificate bearing date
the twenty sixth day of April, 1780, under the hand of the treasurer, that Daniel L. Hylton and Co. have
paid to him thirty one hundred eleven and one ninth dollars, to be applied to the credit of their accounts
with Farrell and Jones, British subjects. Given under my hand, at Richmond, this 30th May, 1780.'

T. JEFFERSON.

Whereby the Defendants, by virtue of the said act of Assembly, are discharged from so much of the
debt in the declaration mentioned, as the said receipt specifies and amounts to, and this they are ready
to verify. Wherefore, they pray the judgment of the court, whether the said Plaintiff ought to have or
maintain his action, aforesaid, against them for the 933: 14, part of the debt in the declaration
mentioned.

3rd. That the Plaintiff ought not to have or maintain his action, aforesaid, against them, because they
say that, on the 4th day of July, in the year 1776, the said Defendants became citizens of the state of
Virginia, and have ever since remained citizens thereof, and residents therein, and that the said Plaintiff,
and the said Joseph Farrell, on the said fourth day of July, in the year 1776, and from the time of their
nativity, had ever been, and always since have been, British subjects, [3 U.S. 199, 201] and the
Plaintiff still is a British subject, yielding and paying allegiance to the King of Great Britain, which said
King of Great Britain, and all his subjects, as well the Plaintiff and the said Joseph Farell, as others,
were on the said 4th day of July, 1776, and so continued till the 3rd day of September, in the year 1783,
enemies of, and at open war with, the state of Virginia, and the United States of America; and that,
being so enemies and at open war, as aforesaid, the legislature of the state of Virginia did, at their
session commenced and held in the city of Williamsburg, on the third day of May, in the year 1779,
pass an act entitled 'An act concerning escheats and forfeitures from British subjects,' whereby it was,
among other things enacted, 'That all the property, real and personal, within this Commonwealth,
belonging at this time to any British subject, or which did belong to any British subject at the time when
such escheat or forfeiture may have taken place, shall be deemed to be vested in the Commonwealth;
the lands, slaves, and other real estate, by way of escheat, and the personal estate by forfeiture.' And
the legislature of the state of Virginia did, in their session begun and held in the town of Richmond, on
Monday the sixth day of May, in the year 1782, pass an act, entitled 'An act to repeal so much of a
former act, as suspends the issuing of executions upon certain judgments until December, 1783,'
whereby it is enacted, that no demand whatsoever, originally due to a subject of Great Britain, shall be
recoverable in any court in this commonwealth, although the same may be transferred to a citizen of
this state, or to any other person capable of maintaining such an action, unless the assignment hath
been, or may be, made for a valuable consideration, bona fide, paid before the first day May 1777,
which said acts are unrepealed, and still in force. And the Defendants, in fact, say, that the debt in the
declaration mentioned, was personal property, within this commonwealth, belonging to a British subject,
at the time of the passing of the said act, entitled 'An act concerning escheats and forfeitures from
British subjects;' and the Defendants, in fact, also say, that the debt in the declaration mentioned, is a
demand originally due to a subject of the King of Great Britain, not transferred to any person
whatsoever. And these things they are ready to verify: Wherefore they pray the judgment of the court,
whether the said Plaintiff ought to have, or maintain his action aforesaid, against them.

4th. That the Plaintiff, his action aforesaid, against them, ought not to have or maintain, because they
say that a definitive treaty of peace between the United States of America and his Britannic Majesty,
was done at Paris, on the third day of September, in the year 1783, and that, by a part of the seventh [3
U.S. 199, 202] article of the said treaty, it was expressly agreed, on the part of his Britannic Majesty,
with the United States, among other things, 'That his said Britannic Majesty should, with all convenient
speed, and without causing any destruction, or carrying away any negroes or other property of the
American inhabitants, withdraw all his armies, garrisons and fleets, from the said United States, and
from every port, place and harbour within the same,' which may more fully appear, reference being had
to the said treaty: And the said Defendants aver, that on the said 3rd day of September, 1783, and from
their birth to this day, they have been citizens of these United States, and of the State of Virginia, and
that the Plaintiff has ever been a British subject, and that the Plaintiff ought not to maintain an action,
because his Britannic Majesty hath wilfully broken and violated the said treaty in this, that his Britannic
Majesty hath, from the day of the said treaty and ever since, continued to carry off the negroes in his
possession, the property of the American inhabitants of the United States, and hath, and still doth refuse
to deliver them, or permit the owners of the said negroes to take them. And the Defendants aver, that
his Britannic Majesty hath refused, and still doth refuse to withdraw his armies and garrisons from every
port and harbour within the United States, which his said Britannic Majesty was bound to do by the said
treaty: and the Defendants aver, that from the day of the treaty his Britannic Majesty, by force and
violence, and with his army, retains possession of the forts Detroit and Niagara, and a large territory
adjoining the said forts, and within the bounds and limits of the United States of America, and the
Defendants say, that in further violation of the said treaty of peace, concluded as aforesaid, certain
nations, or tribes of Indians, known by the names of Shawanese, Tawas, Twightces, Powtawatemies,
Quiapoees, Wiandots, Mingoes, Piankaskaws and Naiadonepes, and others, being at open, public and
known wars with the inhabitants of the United States, and living within the limits thereof, and for the
purpose of aiding the said Indians in such war and hostility, at certain posts, forts and garrisons, held
and kept by the troops and garrisons of his Britannic Majesty, to wit, at Detroit, Michelimachinac and
Niagara, within the limits of the said United States, on the 4th day of September, 1783, and at divers
times after the said 4th day of September, 1783, up to the institution of this suit, by orders and directions
of his Britannic Majesty, and his officers commanding his said troops and armies, at the said garrisons
of Detroit, Michelimachinac and Niagara, and at other forts and places held by the said troops and
armies within the limits of the United States, are supplied and furnished with arms, ammunition and
weapons of war, to wit, with guns and gunpowder, lead [3 U.S. 199, 203] and leaden bullets,
tomahawks and scalping-knives, for the purpose of enabling them to prosecute the war against the
citizens of these United States, and also giving and paying to the said Indians money, goods, wares
and merchandize, for booty and plunder taken in such war, and for persons, citizens of these United
States, made prisoners by the said Indians, in such their warfare against the United States, and so the
King of Great Britain is an enemy to these United States: And this they are ready to verify. Wherefore
they pray judgment of the court, whether the Plaintiff, his action aforesaid, against them, ought to have
or maintain.

5th. That the debt in the declaration mentioned, was contracted before the 4th day of July, in the year
1776, to wit, on the seventh day of July, in the year 1774, and that when the said debt was contracted,
and from thence to the said fourth day of July, 1776, and on that day, and until this day the said Plaintiff
was, and is a subject to the King of Great Britain, residing in Virginia, until the said fourth day of July,
in the year 1776, on which day the people of North America, among whom were these defendants, who
had theretofore been the subjects of the King of Great Britain, dissolved the till then subsisting
government, whereby the right of the Plaintiff to the debt in the declaration mentioned, was totally
annulled. And this they are ready to verify: Wherefore they pray the judgment of the court, whether the
Plaintiff ought to have, or maintain his action aforesaid, against them.

The Plaintiff replied, 1st. Non Solverunt to the plea of payment; on which issue was joined; and to the
2nd. plea in bar he replied,

2nd. That he, by reason of any thing in the said plea alleged, ought not to be barred from having or
maintaining his said action against the said Defendants, because protesting, that that plea, and the
matters therein contained, are not sufficient in law to bar the said Plaintiff from having or maintaining
his said action in this behalf, against the said Defendants, to which the said Plaintiff hath no reason,
nor is he bound by the law of the land to answer; yet, for replication in this behalf, he, the said Plaintiff,
faith, that after the debt in the said declaration mentioned was contracted, and after the said 4th day of
July, 1776, in the said plea of the said Defendants mentioned, and also after the said twentieth day of
October, 1777, and the passing the act of General Assembly, in the said plea also mentioned, and also
after the day in which the said receipt in the plea stated, is said to have been granted, to wit, on the
third day of September, in the year of our Lord 1783, it was by the definitive Treaty of Peace between
the United States of America and his Britannic Majesty, made and done in the [3 U.S. 199, 204] City
of Paris, that is to say, in the commonwealth, now District of Virginia, and now within the jurisdiction of
this honourable court, stipulated and agreed, among other things, 'that the creditors of either side
should meet with no lawful impediment to the recovery of the full value in sterling money, of all bona
fide debts, theretofore contracted;' and the said Plaintiff in fact faith, that he, on the said third day of
September, in the year 1783, and for a long time before (as well as the said Joseph Farrell, in his
lifetime were) then was, and ever since hath been and still is, a subject of his Britannic Majesty, and a
creditor within the intent and meaning of the 4th article of the Definitive Treaty; and that the debt in the
declaration mentioned, was contracted before the said third day of September, 1783, that is to say, in
the county and commonwealth aforesaid, now the District of Virginia, and now within the jurisdiction of
this honourable court; and there was and still is owing and unpaid. And the said Plaintiff, for further
replication, faith, that after contracting the debt in the declaration mentioned by the said Defendants,
and also after the fourth day of July, in the year of our Lord 1776, and after the said twentieth day of
October, in the year of our Lord 1777, and also after the said third day of September, in the year of our
Lord 1783, that is to say, on the day of 1787, in the then commonwealth, now the district of Virginia,
and now within the jurisdiction of this honourable court, it was by the Constitution of the United States
of America, among other things, expressly declared, that treaties which were then made, or should
thereafter be made, under the authority of the United States, should be the supreme law of the land,
any thing in the said constitution, or of the laws of any state to the contrary notwithstanding; and the
said Plaintiff doth, in fact, aver, that the said Constitution of the United States, was made and accepted,
subsequent to and after the ratification of the said definitive treaty of peace between the said United
States of America and his Britannic Majesty, whose subject the said Plaintiff then was, and still is, and
after the said fourth day of July, in the year 1776, and also after the said twentieth day of October, in
the year 1777: Wherefore without that the debt in the declaration mentioned, was bona fide, contracted
before the making of the said Definitive Treaty of Peace, and before the making of the said Constitution
of the United States, that he, the said Plaintiff, is entitled to demand, have, and recover of the said
Defendants, the aforesaid debt in the declaration mentioned without that the Governor and Council did
give a receipt for a certificate of the payment into the loan office of the sum of 1311 1-9 dollars, in the
name of Farrell and Jones, [3 U.S. 199, 205] and in conformity to the direction of the act of General
Assembly, entitled 'An act for sequestering British property, enabling those indebted to British subjects,
to pay of such debts, and directing the proceedings in suits where such subjects are parties;' whilst the
said act was in force, as in the said plea of the said Defendants is alledged, and this he is ready to
verify. Wherefore the said Plaintiff, as before, prays judgment of the court, and his debt aforesaid, and
damages for detention of the debt to be adjudged to him.

To the 3rd, 4th and 5th pleas in bar, the Plaintiff demurred generally.

The Defendants to the Plaintiff's second replication, rejoined, that the said Plaintiff, for any thing in the
said replication contained, ought not to have or maintain his said action against them, because they,
by way of rejoinder, in this behalf, say, that in the same Definitive Treaty of Peace between the United
States of America and his Britannic Majesty, by the said plaintiff in his replication mentioned, and which
is now to the court shown, it was among other things stipulated and contracted as follows: 'There shall
be a firm and perpetual peace between his Britannic Majesty and the said United States, and between
the subjects of the one and the citizens of the other; wherefore, all hostilities both by sea and land, shall
from henceforth cease, all prisoners on both sides shall be set at liberty, and his Britannic Majesty shall,
with all convenient speed, and without causing any destruction or carrying away any negroes, or other
property of the American inhabitants, withdraw all his armies, garrisons, and fleets, from the said United
States, and from every port, place, and harbour within the same:' And the Defendants, in fact, say, that
his said Britannic Majesty hath not performed those things, which, by the said Treaty of Peace, he was
bound to perform, but hath altogether failed to do so, and hath broken the said Treaty in this: that on
the fourth day of September, in the year 1783, and on the third day of June, 1790, and at divers times
between the said fourth day of September 1783, and the said third day of June, in the year 1790, his
Britannic Majesty at Detroit, and other parts within the boundaries of the United States, to wit, within
the commonwealth of Virginia, and the jurisdiction of this honorable court, in open violation of the said
treaty, and the articles thereof, excited, persuaded, and stirred up the Shawanese, and divers other
tribes of Indians, to make war upon the said United States of America, and the commonwealth of
Virginia; and gave them, the said Indians, aid in the prosecution of the said war, and furnished them
with arms and ammunition, for the purpose of enabling them to prosecute the same. And his said
Britannic [3 U.S. 199, 206] Majesty hath not, with all convenient speed, and without causing any
destruction or carrying away any negroes, or other property of the American inhabitants, withdrawn all
his armies, garrisons and fleets, from the said United States, and from every port and place within the
same; but hath carried away five thousand negroes, the property of American inhabitants, on the fourth
day of September, in the year 1783, from New York, to wit, in the commonwealth of Virginia, and within
the jurisdiction of the court; and hath refused to withdraw with all convenient speed, his armies and
garrisons from the United States, and from every post and place within the same; but hath, with force
and violence, and in open violation of the said Treaty of Peace, on the said third day of September, in
the year 1783, and since, maintained his armies and garrisons in the forts of Niagara and Detroit, which
are posts and places within the United States, and still doth maintain his armies and garrisons within
the said forts; and the Defendants further say, that the debt in the declaration mentioned, or so much
thereof, as is equal to the sum of 933 14. was not a bona fide debt due and owing to the Plaintiff, on
the said third day of September, 1783, because the Defendant had, on the day of 1780, in Virginia as
aforesaid, paid in part thereof, the sum of 311 1-9 dollars, and afterwards obtained a certificate therefor,
according to the act of the General Assembly, entitled 'An act for sequestering British property, enabling
those indebted to British subjects, to pay off such debts, and directing the proceedings in suits, where
such subjects are parties,' which payment was made while the said act continued in full force, without
that the said Treaty of Peace, and the Constitution of the United States, entitle the said Plaintiff to
maintain his said action, against the said Defendants, for so much of the said debt in the declaration
mentioned, as is equal to 933 14. and this they are ready to verify: Wherefore they pray the judgment
of the court, whether the Plaintiff ought to have or maintain his action aforesaid, against them, for so
much of the debt in the declaration mentioned, as is equal to the said sum of 933 14.

The Defendants joined issue on the demurrer to the 3rd, 4th, and 5th pleas in bar: And the Plaintiff
having demurred to the Defendants rejoinder to the second replication, issue was thereupon likewise
joined.

On the demurrer to the Defendant's rejoinder to the Plaintiff's replication to the second plea, judgment
was given by the Circuit Court, for the Defendants, and that as to so much of the debt in the declaration
mentioned, as is in the said second plea set forth, the Plaintiff take nothing by his bill: On which
judgment, the present writ of error was brought; but on [3 U.S. 199, 207] demurrer to the 3rd, 4th, and
5th pleas, judgment was given for the Plaintiff; a Venire was awarded to try the issue in fact on the first
plea of payment; and on the trial a verdict and judgment were given for the Plaintiff for 596 dollars, with
interest at 5 per cent. from the 7th July, 1782, and costs.

On the return of the record, the error assigned was, that judgment had been given for the Defendants,
instead of being given for the Plaintiff, upon his demurrer to their rejoinder to the replication to the
second plea. In nullo est erratum was pleaded, and thereupon issue was joined.

The general question was whether by paying a debt due before the war, from an American citizen to
British subjects, into the loan office of Virginia, in pursuance of the law of that state, the debtor was
discharged from his creditor? And the argument took the following general course. *

E. Tilghman, for the Plaintiff in error.

It is conceded that a debt was due from the Defendants to the Plaintiff, at the commencement of the
revolutionary war; and it has been decided, in the case of Georgia versus Brailsford, ant. p. 1. that
although the state had a power to suspend the payment of such a debt, during the continuance of
hostilities, yet that the creditor's right to recover it, revived as an incident and consequence of the peace.
There is, indeed, no controverting the general right of a belligerent power to confiscate the property of
its enemy, in ordinary cases; though the modern policy of nations abstains from the exercise of that
right, in respect to debts. Vatt. B. 3. s. 77. p. 484. But the relative situation of Great Britain and her
colonies was of a peculiar nature, widely different from the situation of the Grecian, or Roman colonies;
and, therefore, requiring a new and appropriate rule of action. At the time of the revolution, the creditor
and debtor were members of the same society; subjects of the same empire. Had they belonged,
originally, to distinct, independent states, both would have anticipated, in the case of a war. an exercise
of the power of confiscation; but the event of a civil contest could not be reasonably contemplated, nor
provided for. We find, therefore, upon the law of positive authority, as well as upon a principle of natural
justice, that even the declaration of independence was deemed to have no obligatory operation upon
any inhabitant of the United States, who did not choose, voluntarily to remain in the country, or to take
an [3 U.S. 199, 208] oath of allegiance, to some member of the confederation. 1 Dall. Rep. 53. On the
declaration of independence, the American debtor might choose his political party, but he could not
dissolve his obligation to his British creditor; and if he had no power to dissolve it himself, it follows that
he could not communicate such a power, to the society of which he became a member. Vatt. Pr. Dis.
s. 5. 11. Besides, there are, certainly, a variety of cases, to which the rigorous power of confiscation
cannot, and ought not to extend. Suppose a contract is formed in a neutral country, between subjects
of two belligerent powers, the debt thus incurred could hardly be the object of confiscation. An action,
it has been adjudged, may be maintained on a ransom bill, even during the continuance of the war.
Doug. 19. And. in general, it may be stated, that capitulations, made in time of war, though they embrace
the security of debts, as well as other property, must be held sacred. Vatt. B. 3. s. 263. 264. p. 612.
613.

But supposing Virginia had the right of confiscation in the present instance, two grounds for judicial
enquiry will still remain to be explored: 1st, Whether an act of the Legislature of that State has been
passed, and so acted upon, as ever to have created an impediment to the Plaintiff's recovering the debt
in controversy? And 2nd. Whether such impediment, if it ever existed, has been lawfully removed?

1st. It does not appear, from the enacting clauses of the law of Virginia, which has been pleaded, that
the State had any intention to confiscate the British debts paid into her treasury; and the preamble (
which, though it cannot controul, may be advantageously employed to expound, the enacting clauses)
is manifestly inconsistent with such an intention. The money, when paid by the debtor into the treasury,
was, simply, to remain there, subject to the directions of the Legislature; and as the debtor was not
bound so to pay it, the provisions of the act could not amount to a confiscation; but were merely an
invitation to pay, with an implied promise, that whoever accepted the terms of the invitation, should be
indemnified by the State. Nor was the invitation indiscriminately given to all debtors, but only to those
who were sued; from which the inference is irresistible, that whatever responsibility the state meant
herself to assume, there was no intention to extinguish the responsibility of the Virginia debtor to the
British creditor, The act of the Virginia Legislature, passed the 3rd of May 1779, is in pari materia, and
throws light on the construction of the former act; for, there, when the Legislature meant to interpose a
bar to the recovery, they have in express terms declared it. Several other acts have passed on the
subject, to which it is merely necessary to refer: The act of the 1st of [3 U.S. 199, 209] May, 1780,
repeals the act of the 20th of October 1777, so far as regards the authority to pay debts into the treasury.
The acts of the 6th of May 1782, and 20th of October 1783, revive the authority of making such
payments in relation to British debts; and prevents the recovery by British creditors. The act of the 3rd
of January 1788, fixes the amount for which the State will be liable on account of payments into the
treasury; to wit, for the value of the money at the time it was so paid, with interest.

2nd. But if any impediment ever existed to the recovery of the debt, it is removed by the operation of
the treaty between the United States and Great Britain, Congress having a power to repeal all the acts
of the several States, in order to obtain peace; and the treaty made for that purpose being the supreme
law of the land. The fourth article declares that creditors on either side shall meet with no lawful
impediment to the recovery of debts heretofore contracted; and unless this provision applies to cases
like the present, it will be useless and nugatory. An interpretation, which would render a clause in the
treaty of no effect, ought not to be admitted. Vatt. B. 2. s. 283. The fifth article expressly stipulates, that
Congress shall recommend the restoration of some parts of confiscated property, and a composition
as to other parts; but that 'all persons who have any interest in confiscated lands, either by debts,
marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just
rights.' Both parties to the treaty seemed to think that there had been no confiscation of debtsa; and
debts were the great object which the British commissioners wished to secure. Whatever tends to
produce equality in national compacts ought to be favoured; Vatt. B. 2. s. 301. and as the British
government had thrown no impediment in the way of recovering debts, the American should be
presumed to have acted on the same liberal principle, if any doubt arises upon the construction of the
public acts. When a statute is repealed, mesne acts are valid; but it is not so, when a subsequent act
declares a former one to be void. Jenk. 233. pl. 6. Had the treaty meant to obviate only a part of the
impediments, the meaning would have been expressed in qualified terms. But as it could not be
supposed, that, after the peace, laws would be passed creating impediments to the recovery of British
debts; the treaty cannot be construed merely to intend to prevent the passing future laws, but to
annihilate the operation of such as were previously enacted. There is no such clause in the treaties,
which England

a Iredell, Justice. --The state of North Carolina did actually pass a confiscation law. [3 U.S. 199,
210] made at the same period with France, Spain, and Holland, and for this obvious reason, that those
countries had passed no law to impede the recovery of British debts. A change of circumstances, a
recognition, ex post facto, will often impose an obligation, which may not, originally, be binding on the
party: The debt contracted by an infant, is obligatory on him, if he promises to pay it when of age. The
assumption of a certificated bankrupt, to satisfy a debt, which the certificate would, otherwise, have
discharged, affords a new cause of action. And the bare acknowledgment of a debt, barred by the
statute of limitations, is sufficient to maintain an action against the debtor. So, in the present case, the
treaty, operating as a national compact, is a promise to remove every pre-existing bar to the recovery
of British debts; and, whatever may have been the previous state of things, this is a paramount
engagement, entered into by a competent authority, upon an adequate consideration.

Marshall, (of Virginia) for the Defendant in error.

The case resolves itself into two general propositions: 1st, That the act of Assembly of Virginia, is a bar
to the recovery of the debt, independent of the treaty. 2nd, That the treaty does not remove the bar.

I. That the act of Assembly of Virginia is a bar to the recovery of the debt, introduces two subjects for
consideration: 1st. Whether the Legislature had power to extinguish the debt? 2nd. Whether the
Legislature had exercised that power?

1st. It has been conceded, that independent nations have, in general, the right of confiscation; and that
Virginia, at the time of passing her law, was an independent nation. But, it is contended, that from the
peculiar circumstances of the war, the citizens of each of the contending nations, having been members
of the same government, the general right of confiscation did not apply, and ought not to be exercised.
It is not, however, necessary for the Defendant in error to show a parallel case in history; since, it is
incumbent on those, who wish to impair the sovereignty of Virginia, to establish on principle, or
precedent, the justice of their exception. That State being engaged in a war, necessarily possessed the
powers of war; and confiscation is one of those powers, weakening the party against whom it is
employed, and strengthening the party that employs it. War, indeed, is a state of force; and no tribunal
can decide between the belligerent powers. But did not Virginia hazard as much by the war, as if she
had never been a member of the British empire? Did she not hazard more, from the very circumstance
of its being a civil war? It will be allowed, that nations have equal powers; and that America, in her own
tribunals at least, must from the 4th of July 1776, [3 U.S. 199, 211] considered as independent a nation
as Great Britain: then, what would have been the situation of American property, had Great Britain been
triumphant in the conflict? Sequestration, confiscation and proscription would have followed in the train
of that event; and why should the confiscation of British property be deemed less just in the event of
the American triumph? The rights of war clearly exist between members of the same Empire, engaged
in a civil war. Vatt. B. 3. s. 292. 295. But, suppose a suit had been brought during the war by a British
subject against an American citizen, it could not have been supported; and if there was a power to
suspend the recovery, there must have been a power to extinguish the debt: they are, indeed, portions
of the same power, emanating from the same source. The legislative authority of any country, can only
be restrained by its own municipal constitution: This is a principle that springs from the very nature of
society; and the judicial authority can have no right to question the validity of a law, unless such a
jurisdiction is expressly given by the constitution. It is not necessary to enquire, how the judicial authority
should act, if the Legislature were evidently to violate any of the laws of God; but property is the creature
of civil society, and subject, in all respects, to the disposition and controul of civil institutions. There is
no weight in the argument, founded on what is supposed to be the understanding of the parties at the
place and time of contracting debts; for, the right of confiscation does not arise from the understanding
of individuals, in private transactions, but from the nature and operation of government. Nor does it
follow, that because an individual has not the power of extinguishing his debts, the community, to which
he belongs, may not, upon principles of public policy, prevent his creditors from recovering them. It
must be repeated, that the law of property, in its origin and operation, is the offspring of the social state;
not the incident of a state of nature. But the revolution did not reduce the inhabitants of America to a
state of nature; and, if it did, the Plaintiff's claim would be at an end. Other objections to the doctrine
are started: It is said, that a debt, which arises from a contract, formed between the subjects of two
belligerent powers, in a neutral country, cannot be confiscated; but the society has a right to apply to
its own use, the property of its enemy, wherever the right of property accrued, and wherever the
property itself can be found. Suppose a debt had been contracted between two Americans, and one of
them had joined England, would not the right of confiscation extend to such a debt? As to the case of
the ransom bill, if the right of confiscation does not extend to it, (which is, by no means, admitted) it
must be on account of the peculiar nature of the contract, implying a waver of the rights of [3 U.S. 199,
212] war. And the validity of capitulations depends on the same principle. But, let it be supposed, that
a government should infringe the provisions of a capitulation, by imprisoning soldiers, who had
stipulated for a free return to their home, could an action of trespass be maintained against the gaoler?
No: the act of the government, though disgraceful, would be obligatory on the judiciary department.

2nd, But it is now to be considered, whether, if the Legislature of Virginia had the power of confiscation,
they have exercised it? The third section of the act of Assembly discharges the debtor; and, on the
plain import of the term, it may be asked, if he is discharged, how can he remain charged? The
expression is, he shall be discharged from the debt; and yet, it is contended, he shall remain liable to
the debt. Suppose the law had said, that the debtor should be discharged from the commonwealth, but
not from his creditor, would not the Legislature have betrayed the extremest folly in such a proposition?
and what man in his senses would have paid a farthing into the treasury, under such a law? Yet, in
violation of the expressions of the act, this is the construction which is now attempted. It is, likewise,
contended, that the act of Assembly does not amount to a confiscation of the debts paid into the
treasury; and that the Legislature had no power, as between creditors and debtors, to make a
substitution, or commutation, in the mode of payment. But what is a confiscation? The substance, and
not the form, is to be regarded. The state had a right either to make the confiscation absolute, or to
modify it as she pleased. If she had ordered the debtor to pay the money into the treasury, to be applied
to public uses; would it not have been, in the eye of reason, a perfect confiscation? She has thought
proper, however, only to authorise the payment, to exonerate the debtor from his creditor, and to retain
the money in the treasury, subject to her own discretion, as to its future appropriation. As far as the
arrangement has been made, it is confiscatory in its nature, and must be binding on the parties; though
in the exercise of her discretion, the state might choose to restore the whole, or any part, of the money
to the original creditor. Nor is it sufficient to say, that the payment was voluntary, in order to defeat the
confiscation. A law is an expression of the public will; which, when expressed, is not the less obligatory,
because it imposes no penalty. Banks, Canal Companies, and numerous associations of a similar
description, are formed on the principle of voluntary subscription. The nation is desirous that such
institutions should exist; individuals are invited to subscribe on the terms of the law; and, when they
have subscribed, they are entitled to all the benefits, and are subject to all the inconveniences of the
association, although [3 U.S. 199, 213] no penalties are imposed. So, when the government of Virginia
wished to possess itself of the debts previously owing to British subjects, the debtors were invited to
make the payment into the treasury; and, having done so, there is no reason, or justice, in contending
that the law is not obligatory on all the world, in relation to the benefit, which it promised as an
inducement to the payment. If, subsequent to the act of 1777, a law had been passed confiscating
British debts, for the use of the state, with orders that the Attorney General should sue all British debtors,
could he have sued the Defendants in error, as British debtors, after this payment of the debt into the
treasury? Common sense and common honesty revolt at the idea; and, yet, if the British creditor
retained any right or interest in the debt, the state would be entitled, on principles of law, to recover the
amount.

II. Having thus, then, established, that at the time of entering into the Treaty of 1783, the Defendant
owed nothing to the Plaintiff; it is next to be enquired, whether that treaty revived the debt in favour of
the Plaintiff, and removed the bar to a recovery, which the law of Virginia had interposed? The words
of the fourth article of the Treaty are, 'that creditors on either side, shall meet with no lawful impediment
to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted.' Now, it
may be asked, who are creditors? There cannot be a creditor where there is not a debt; and British
debts were extinguished by the act of confiscation. The articles, therefore, must be construed with
reference to those creditors, who had bona fide debts, subsisting, in legal force, at the time of making
the Treaty; and the word recovery can have no effect to create a debt, where none previously existed.
Without discussing the power of Congress to take away a vested right by treaty, the fair and rational
construction of the instrument itself, is sufficient for the Defendant's cause. The words ought, surely, to
be very plain, that shall work so evident a hardship, as to compel a man to pay a debt, which he had
before extinguished. The treaty, itself, does not point out any particular description of persons, who
were to be deemed debtors; and it must be expounded in relation to the existing state of things. It is
not true, that the fourth article can have no meaning, unless it applies to cases like the present. For
instance; there was a law of Virginia, which prohibited the recovery of British debts, that had not been
paid into the treasury: these were bona fide subsisting debts; and the prohibition was a legal
impediment to the recovery, which the treaty was intended to remove. So, likewise, in several other
states, laws had been passed authorising a discharge of British debts in paper money, or by a tender
of property [3 U.S. 199, 214] at a valuation, and the treaty was calculated to guard against such
impediments to the recovery of the sterling value of those debts. It appears, therefore, that at the time
of making the treaty, the state of things was such, that Virginia had exercised her sovereign right of
confiscation, and had actually received the money from the British debtors. If debts thus paid were
within the scope of the fourth article, those who framed the article knew of the payment; and upon every
principle of equity and law, it ought to be presumed, that the recovery, which they contemplated, was
intended against the receiving state, not against the paying debtor. Virginia possessing the right of
compelling a payment for her own use, the payment to her, upon her requisition, ought to be considered
as a payment to the attorney, or agent, of the British creditor. Nor is such a substitution a novelty in
legal proceedings: a foreign attachment is founded on the same principle. Suppose judgment had been
obtained against the Defendants in error, as Garnishee in a foreign attachment brought against the
Plaintiff in error, and the money had been paid, accordingly, to the Plaintiff in the attachment; but it
afterwards appeared that the Plaintiff in the attachment had, in fact, no cause of action, having been
paid his debt before he commenced the suit: If the treaty had been made in such a state of things,
which would be the debtor contemplated by the fourth article, the Defendants in error, who had complied
with a legal judgment against them, or the Plaintiff in the attachment, who had received the money?
This act of Virginia must have been known to the American and British commissioners; and, therefore,
cannot be repealed without plain and explicit expressions directed to that object. Besides, the public
faith ought to be preserved. The public faith was plighted by the act of Virginia; and, as a revival of the
debt in question, would be a shameful violation of the faith of the state to her own citizens, the treaty
should receive any possible interpretation to avoid so dishonorable and so pernicious a consequence.
It is evident, that the power of the government, to take away a vested right, was questionable in the
minds of the American commissioners, since they would not exercise that power in restoring
confiscated real estate; and confiscated debts, or other personal estate must come within the same
rule. If Congress had the power of divesting a vested right, it must have arisen from the necessity of
the case; and if the necessity had existed, the American commissioners, explicitly avowing it, would
have justified their acquiescence to the nation. But the commissioners could have no motive to form a
treaty such as the opposite construction supposes; for, if the stipulation was indispensable to the
attainment of peace, the object was national, and so should be the [3 U.S. 199, 215] payment of the
equivalent: the commissioners, in such case, would have agreed, at once, that the public should pay
the British debts; since the public must, on every principle of equity, be answerable to the Virginia
debtor, who is now said to be the victim. The case cited from Jenkins, does not apply; as there is no
article of the treaty, that declares the law of Virginia void. See Old Law of Evidence 196.

Campbell, of Virginia, on the same side.

The questions to be discussed are these: 1st. Did the act of Assembly of Virginia discharge the debtor?
2nd. Did any subsequent act, or law, of the government, re-charge him?

I. The right of confiscation, in a time of war, is incontrovertibly established; Vatt. b. 3. c. 5. s. 77. and
nothing but the conventional, or customary, law of nations, can restrain the exercise of that general
right. But the conventional, or customary, law of nations is only obligatory on those nations by whom it
is adopted. Vatt. Pret. Dise s. 24. 25. 17. Vatt. b. 3. c. 28. s. 287. 292. Even in the English courts,
indeed, the confiscation law of Georgia has been adjudged to be valid. If, therefore, the right of
confiscation might be exercised by an individual state, nothing can more emphatically prove its
exercise, than the language of the act of Virginia. The act is a discharge in express terms, saying, that
'the receipt of the proper officer shall Discharge the payer from so much of his debt, as is paid into the
treasury;' whereas a confiscation of the debt, would only work a discharge by legal inference. To restrict
the meaning of the discharge to a discharge from the state, is absurd; for, the state never had a charge
against the debtor; or, if the state had a right to charge him, another consequence, equally fatal to the
Plaintiff's cause, would ensue, that the right of the British creditor to charge him was extinguished; since
the debtor clearly could not be responsible to both.

II. In considering, whether any thing has been done by the Government, to revive the charge, in favor
of the British creditor, it is to be premised, that the state of things, at the time of making the treaty, is to
be held legitimate; and whatever tends to change that state, is odious in the eye of the law. Vatt. B. 4.
c. 2. s. 21. Ibid. B. 2. c. 17. s. 305 As, therefore, by the law of nations, a payment under a confiscation
discharges a debtor, though if there had been no payment, the debt would have revived at the peace;
Byrk. c. 8. p. 177. de reb. bell. nothing short of an express and explicit declaration of the treaty should
be allowed so to alter the state of things, as to revive a debt, that had been lawfully extinguished. If
then the treaty had been intended to alter the state of things, reason, equity, and law, concur in
supposing, that it would have been by a provision, [3 U.S. 199, 216] calling on Virginia, who had
received the money, to refund it in satisfaction of the claim of the British creditor. Adverting to the words
of the fourth article of the treaty, and thence deducing a fair, legal, and consistent meaning, the claim
of the Plaintiff cannot be supported. It may not be improper to apply the word Creditors to British
subjects; but, it is contended, that the Virginia act interposes a lawful impediment, ( not an impediment
in fact, such as payment to the creditor himself) to the recovery of the debt, which impediment the treaty
intended to remove. The answer, however, is conclusive, that this was not a debt at the time of making
the treaty; and, therefore, the expression, whatever may be its general import, cannot be applied to the
case. It is urged, likewise, that the words debts heretofore contracted, are peculiarly descriptive of debts
of the present class: but the words heretofore contracted, cannot alter the nature and import of the word
debt; and those words were necessary to be inserted; because they ascertained the debts, which were,
at all events, to be paid in sterling money; debts contracted afterwards being left to the lex loci, and
liable to the tender laws, which the different states had made, or might think proper to make. If, indeed
the opposite construction prevails, then all debts, previously contracted, in whatever manner they may
have been extinguished, are revived by the treaty. But, surely, obscure words ought not to be construed
so as to alter the existing state of things between the two nations, and involve thousands of individual
citizens in ruin. It is not now contended, that debts do not revive by the peace; though the
Commissioners, who formed the treaty, might entertain doubts on the subject; and, therefore, provided
specially for the case. Grotius B. 3. c. 9. s. 9. says, (though his commentator dissents) that debts are
not, of course, revived by a peace; and there are many instances of Conventions between nations,
stipulating for the revival. Bynk. de reb. bell. c. 8. p. 177. The treaty extends to British, as well as to
American, debtors; and as Britain had passed no act of confiscation, the article was meant solely as a
convention, that debts not paid to the public, should be recoverable of the original creditor. To illucidate
the subject, it is necessary to inquire into the power of the Commissioners; for, it is not to be presumed,
that they were ignorant of their power, or that they meant to exceed it; and if one construction will
produce an effect, to which they were competent, while the other construction will amount to a mere
usurpation, the former ought certainly to be adopted. Thus, Congress never was considered as a
legislative body, except in relation to those subjects expressly assigned to the Federal jurisdiction; and
could at no time, nor in any manner, repeal the laws of the several states, or sacrifice the rights of
individuals. The power of abrogating, [3 U.S. 199, 217] is as eminent as the power of making laws;
Vatt. B. 1. c.3.s.34.47. and even the powers of war and peace may be limited by the fundamental law
of the Society. Vatt. B. 4. c. 2.s.10. The fundamental law of the Union, was declared in the articles of
confederation; and those articles, as well as the written constitutions of the several states, must have
been known to the commissioners on both sides, as the boundaries of the authority of the American
government itself, and of course of all authority derived from that government. But the right of sacrificing
individuals, even on the ground of public necessity, belongs only to that power in a state, which is
vested with the eminent domain, a domain inseparable from empire. Vatt. B. 4. s. 12. Ibid. B. 1. c. 20.
s. 244. 245. On the revolution, the eminent domain was vested in the people of America, in their
respective State Legislatures; and it could not be divested and transferred, without an express grant by
the same authority. The debates that arose in the British Parliament on the subject of the treaty, show,
likewise, that the British Commissioners were sensible, that the power of the American Commissioners
did not extend to the repeal of any State law. On the faith of the Virginia law, many citizens collected
their estates from other hands, and paid them into the treasury; and, therefore, even if the treaty
requires a payment of those debts, the responsibility ought only to attach upon the State. If the Virginia
law had made a direct and unqualified confiscation, there would be no doubt of its validity; but it
discharges the debtor as much as if it had been a confiscation, and being discharged, it can be no
reason to revive the debt, that the discharge was procured by a voluntary payment. Upon the whole,
the act of Assembly amounts, substantially, to a confiscation; which means nothing more, than a
bringing into the public Treasury the confiscated property; and the State may, if she pleases, restore it
in that case, as well as in the case of a discretion expressly reserved, or in the case of a forfeiture for
treason, or felony.

Wilcocks, for the Plaintiff in error.

It is necessary, 1st, to ascertain the meaning of the acts of the Legislature of Virginia; and 2nd, the
operation of the treaty of peace, in relation to those acts.

I. That the Legislature of Virginia did not mean to confiscate debts, is evident from the declaration
contained in the preamble, that such a confiscation is not agreeable to the custom of nations; and where
the enacting clause is doubtful, the preamble will furnish a key to the construction. After providing,
therefore, for the sequestration of real estate, the law proceeds merely to permit the payment of British
debts into the public Treasury. There is nothing compulsory on the debtor; all [3 U.S. 199, 218] debtors
are not enjoined to pay; and no debtor is restrained from remitting to his British creditor. Even, indeed,
if a bare sequestration had been intended, there never could be terms more defective. The Legislature
only says, if a debtor chuses to pay his debt into the Treasury, he shall be indemnified; and, in a
subsequent act, when the State declares the amount for which she will be responsible, (the value of
the money paid with interest) she does not determine, whether the payment by the American debtors,
was a discharge from the British creditors. To pay the British creditor in that way, would be manifestly
unjust; but if the American debtor is reimbursed the value of what he paid, with interest, he has no right
to complain.

II. In examining the effect of the treaty, if it is conceded, that the Virginia act extinguished the debt, it
may be assumed, that the commissioners had power to enter into the treaty. That instrument, therefore,
is the supreme law of the land: and, upon the whole, it is highly favourable to America. Treaties ought
to be construed liberally; but it would be illiberal to construe this treaty, so as to prevent the recovery of
bona fide debts. The British Commissioners gave up a great deal; but they were particularly anxious
on two points, the property of the loyalists, and the security of the British debts. It is objected, that the
treaty does not make any express mention of the repeal of State laws: but the laws interfering with the
object of the fourth article were so numerous, that, probably, the commissioners did not know them all;
and it was safest to resort to general expressions. The words 'heretofore contracted,' mean debts
contracted before the revolution; and include not only existing debts, at the time of forming the treaty,
but all debts contracted before that memorable epoch, though extinguished by the acts of State
Legislatures, without the consent, or co-operation, of the British creditors. The words that 'creditors
shall meet with no lawful impediment in the recovery of all such debts,' mean, that when the creditors
apply to a court of justice, no law shall be pleaded in bar to a judgment for their debts. What else,
indeed, could reasonably be the object of the British Minister, who was bound to protect the commercial
interests of his nation, and who insisted on the insertion of the fourth article? Could he mean to
relinquish all debts paid into the public treasury of the different States? Then, if all had been so paid,
the article was nugatory. But the impediments referred to, must have been the existing impediments,
and not impediments to be afterwards created; and the enforcement of the former would be, on general
principles, as unjust to the British creditor, as the introduction of the latter. Besides, if the former
description of impediments was not contemplated, British creditors were in a worse predicament, [3
U.S. 199, 219] than loyalists, owners of confiscated real estate, in whose favor, it was stipulated, that
a Congressional recommendation should be made.

Lewis, for the Plaintiff in error.

The individuals of different nations enter into contracts with each other, upon a presumption, that, in
case of a war, debts will not be confiscated. The presumption is founded upon the uniform practice of
the monarchies of Europe; and the national character of the American Republic is interested that a
more rigorous policy should not be introduced. Congress, indeed, never attempted the seizure of debts;
and very few of the States have passed confiscating laws. It is now, then, to be enquired, 1st, Had the
Legislature of Virginia a competent authority to extinguish the debt? 2nd, If the Legislature had such an
authority, has it been exercised? And 3rdly, if the authority was lawfully exercised, what is the effect of
the treaty of peace.

1st. If the power to confiscate debts existed, it existed in the United States, and not in the individual
states. It has been admitted, that Congress possessed the power of war and peace; and that the right
of confiscation emanates from that source. All America was concerned in the war, and it seems naturally
to follow, that all America (not the constituent parts, respectively) was entitled to the emoluments of
confiscation. It is true, that when a civil war breaks out, each party is entitled to the rights of war, as
between independent nations; and, it is not denied, that Virginia was vested, at the revolution, with all
the eminent domain attached to empire, which was not delegated to Congress, as the head of the
confederation. Such was the peculiar state of things, that although Virginia might, in any future war,
have acted as she pleased, in the war then subsisting she had no election; all the powers of war and
peace were vested in Congress, not in the legislatures of the several states. When it is said, that even
the British courts recognize the validity of a state confiscation; it should be remembered, that the case
alluded to, arose from a law of treason, and the forfeiture for treason, properly belonged to the state of
Georgia. 1 H. Bl. 148.9. So, when it is said, that the act of Virginia was passed, prior to the completion
of the articles of confederation, it is sufficient to answer, that the same objection has already been over-
ruled in Doane & Penhallow.* It is absurd to suppose, that Congress and Virginia could, at the same
time, possess the powers of war and peace. The war was waged against all America, as one nation,
or community; and the peace was concluded on the same principles. Before the revolution, the power
of confiscation was vested in the King, not in the Parliament. When the revolution commenced,
conventions, committees of safety, and other popular associations, [3 U.S. 199, 220] were formed,
even while the legislatures of the several states were in session. The people assumed themselves, in
the first instance, the powers of war and peace, but quickly and wisely vested them in Congress. At
what period, then, could the state legislatures assert that they possessed those powers? All the property
of the enemy, likewise, of whatever kind, was booty of war, and belonged to the Union. The authorities
say, that one belligerent power may confiscate debts due from its subjects, to the subjects of the other
belligerent power; but it is no where said, that a member of any belligerent power, a constituent part of
the nation, possesses such authority. The eminent domain of Virginia must, therefore, be confined to
internal affairs; and it is not sufficient to object, that the property of the debt in question, was within the
limits of her territory, and, therefore, was subject to her laws. The inference would be false, even if the
premises were true: but the premises are unfounded; for a debt is always due where the creditor
resides, except in the case of an obligation, which is due, where the instrument is kept. 1 Roll. Abr. 908.
pl. 1. 4. Ibid. 909. pl. 1. 7. Salk. 37. 4 Burn. Ecc. L. 157.

2nd & 3rd. On the second and third points, there can be but little added to the arguments already
advanced. If laws change according to the manners of times, as reason and authority inculcate (1. L.
Raym. 882.) the act of Virginia should be so expounded as to conform to the modern law of nations,
which is adverse to the confiscation of debts. The right of sequestration may exist (and that is all the
case in the Old Law of Evidence, p. can prove) but Bynkershook says expressly, that a debt not exacted,
revives upon the peace; and, in the present instance, the payment was surely voluntary, without force
of any kind.

The Court, after great consideration, delivered their opinions, seriatim, as follow:
Chase, Justice.

The Defendants in error, on the day of July, 1774, passed their penal bond to Farrell and Jones, for the
payment of 2,976 11 6, of good British money; but the condition of the bond, or the time of payment,
does not appear on the record.

On the 20th of October, 1777, the legislature of the commonwealth of Virginia, passed a law to
sequester British property. In the third section of the law, it was enacted, 'that it should be lawful for any
citizen of Virginia, owing money to a subject of Great Britain, to pay the same, or any part thereof, from
time to time, as he should think fit, into the loan office, taking thereout a certificate for the same, in the
name of the creditor, with an indorsement, under the hand of the commissioner of the said office,
expressing the name of the payer; and [3 U.S. 199, 221] shall deliver such certificate to the governor
and the council, whose receipt shall discharge him from so much of the debt. And the governor and the
council shall, in like manner, lay before the General Assembly, once in every year, an account of these
certificates, specifying the names of the persons by, and for whom they were paid; and shall see to the
safe keeping of the same; subject to the future directions of the legislature: provided, that the governor
and the council may make such allowance, as they shall think reasonable, out of the INTEREST of the
money so paid into the loan office, to the wives and children, residing in the state, of such creditor.

On the 26th of April, 1780, the Defendants in error, paid into the loan office of Virginia, part of their debt,
to wit, 3,111 1-9 dollars, equal to 933 14 0 Virginia currency; and obtained a certificate from the
commissioners of the loan office, and a receipt from the governor and the council of Virginia, agreeably
to the above, in part recited law.

The Defendants in error being sued, on the above bond, in the Circuit Court of Virginia, pleaded the
above law, and the payment above stated, in bar of so much of the Plaintiff's debt. The plaintiff, to avoid
this bar, replied the fourth article of the Definitive Treaty of Peace, between Great Britain and the United
States, of the 3rd of September, 1783. To this replication there was a general demurrer and joinder.
The Circuit Court allowed the demurrer, and the plaintiff brought the present writ of error.

The case is of very great importance, not only from the property that depends on the decision, but
because the effect and operation of the treaty are necessarily involved. I wished to decline sitting in the
cause, as I had been council, some years ago, in a suit in Maryland, in favour of American debtors; and
I consulted with my brethren, who unanimously advised me not to withdraw from the bench. I have
endeavored to divest myself of all former prejudices, and to form an opinion with impartiality. I have
diligently attended to the arguments of the learned council, who debated the several questions, that
were made in the cause, with great legal abilities, ingenuity and skill. I have given the subject, since
the argument, my deliberate investigation, and shall, (as briefly as the case will permit,) deliver the
result of it with great diffidence, and the highest respect for those, who entertain a different opinion. I
solicit, and I hope I shall meet with, a candid allowance for the many imperfections, which may be
discovered in observations hastily drawn up, in the intervals of attendance in court, and the
consideration of other very important cases.

The first point raised by the council for the Plaintiff in error was, 'that the legislature of Virginia had no
right to make [3 U.S. 199, 222] the law, of the 20th October, 1777, above in part recited. If this
objection is established, the judgment of the Circuit Court must be reversed; because it destroys the
Defendants plea in bar, and leaves him without defence to the Plaintiff's action.

This objection was maintained on different grounds by the Plaintiff's council. One of them (Mr.
Tilghman) contended, that the legislature of Virginia had no right to confiscate any British property,
because Virginia was part of the dismembered empire of Great Britain, and the Plaintiff and Defendants
were, all of them, members of the British nation, when the debt was contracted, and therefore, that the
laws of independent nations do not apply to the case; and, if applicable, that the legislature of Virginia
was not justified by the modern law and practice of European nations, in confiscating private debts. In
support of this opinion, he cited Vattel Lib. 3. c. 5. s.77, who expresses himself thus: 'The sovereign
has naturally the same right over what his subjects may be indebted to enemies. Therefore, he may
confiscate debts of this nature, if the term of payment happen in the time of war. But at present, in
regard to the advantage and safety of Commerce, all the sovereigns of Europe have departed from this
rigour; and, as this custom has been generally received, he, who should act contrary to it, would injure
the public faith; for strangers trusted his subjects, only from a firm persuasion, that the general custom
would be observed.'
The other council for the Plaintiff in error (Mr. Lewis) denied any power in the Virginia legislature, to
confiscate any British property, because all such power belonged exclusively to Congress; and he
contended, that if Virginia had a power of confiscation, yet, it did not extend to the confiscation of debts
by the modern law and practice of nations.

I would premise that this objection against the right of the Virginia legislature to confiscate British
property, (and especially debts) is made on the part of British subjects, and after the treaty of peace,
and not by the government of the United States. I would also remark, that the law of Virginia was made
after the declaration of independence by Virginia, and also by Congress; and several years before the
Confederation of the United States, which, although agreed to by Congress on the 15th of November,
1777, and assented to by ten states, in 1778, was only finally completed and ratified on the 1st of
March, 1781.

I am of opinion that the exclusive right of confiscating, during the war, all and every species of British
property, within the territorial limits of Virginia, resided only in the Legislature of that commonwealth. I
shall hereafter consider whether the law of the 20th of October 1777, operated to confiscate or
extinguish [3 U.S. 199, 223] British debts, contracted before the war. It is worthy of remembrance, that
Delegates and Representatives were elected, by the people of the several counties and corporations
of Virginia, to meet in general convention, for the purpose of framing a NEW government, by the
authority of the people only; and that the said Convention met on the 6th of May, and continued in
session until the 5th of July 1776; and, in virtue of their delegated power, established a constitution, or
form of government, to regulate and determine by whom, and in what manner, the authority of the
people of Virginia was thereafter to be executed. As the people of that country were the genuine source
and fountain of all power, that could be rightfully exercised within its limits; they had therefore an
unquestionable right to grant it to whom they pleased, and under what restrictions or limitations they
thought proper. The people of Virginia, by their Constitution or fundamental law, granted and delegated
all their Supreme civil power to a Legislature, and Executive, and a Judiciary; The first to make; the
second to execute; and the last to declare or expound, the laws of the Commonwealth. This abolition
of the Old Government, and this establishment of a new one was the highest act of power, that any
people can exercise. From the moment the people of Virginia exercised this power, all dependence on,
and connection with Great Britain absolutely and forever ceased; and no formal declaration of
Independence was necessary, although a decent respect for the opinions of mankind required a
declaration of the causes, which impelled the separation; and was proper to give notice of the event to
the nations of Europe. I hold it as unquestionable, that the Legislature of Virginia established as I have
stated by the authority of the people, was for ever thereafter invested with the supreme and sovereign
power of the state, and with authority to make any Laws in their discretion, to affect the lives, liberties,
and property of all the citizens of that Commonwealth, with this exception only, that such laws should
not be repugnant to the Constitution, or fundamental law, which could be subject only to the control of
the body of the nation, in cases not to be defined, and which will always provide for themselves. The
legislative power of every nation can only be restrained by its own constitution: and it is the duty of its
courts of justice not to question the validity of any law made in pursuance of the constitution. There is
no question but the act of the Virginia Legislature (of the 20th of October 1777) was within the authority
granted to them by the people of that country; and this being admitted, it is a necessary result, that the
law is obligatory on the courts of Virginia, and, in my opinion, on the courts of the United States. If
Virginia as a sovereign State, violated the ancient or modern [3 U.S. 199, 224] law of nations, in
making the law of the 20th of October 1777, she was answerable in her political capacity to the British
nation, whose subjects have been injured in consequence of that law. Suppose a general right to
confiscate British property, is admitted to be in Congress, and Congress had confiscated all British
property within the United States, including private debts: would it be permitted to contend in any court
of the United States, that Congress had no power to confiscate such debts, by the modern law of
nations? If the right is conceded to be in Congress, it necessarily follows, that she is the judge of the
exercise of the right, as to the extent, mode, and manner. The same reasoning is strictly applicable to
Virginia, is considered a sovereign nation; provided she had not delegated such power to Congress,
before the making of the law of October 1777, which I will hereafter consider.

In June 1776, the Convention of Virginia formally declared, that Virginia was a free, sovereign, and
independent state; and on the 4th of July, 1776, following, the United States, in Congress assembled,
declared the Thirteen United Colonies free and independent states; and that as such, they had full
power to levy war, conclude peace, etc. I consider this as a declaration, not that the United Colonies
jointly, in a collective capacity, were independent states, etc. but that each of them was a sovereign
and independent state, that is, that each of them had a right to govern itself by its own authority, and
its own laws, without any control from any other power upon earth.

Before these solemn acts of separation from the Crown of Great Britain, the war between Great Britain
and the United Colonies, jointly, and separately, was a civil war; but instantly, on that great and ever
memorable event, the war changed its nature, and became a PUBLIC war between independent
governments; and immediately thereupon ALL the rights of public war (and all the other rights of an
independent nation) attached to the government of Virginia; and all the former political connection
between Great Britain and Virginia, and also between their respective subjects, were totally dissolved;
and not only the two nations, but all the subjects of each, were in a state of war; precisely as in the
present war between Great Britain and France. Vatt. Lib. 3. c.18,s.292. to 295. lib.3.c. 5.s.70.72 and
73.

From the 4th of July, 1776, the American States were de facto, as well as de jure, in the possession
and actual exercise of all the rights of independent governments. On the 6th of February, 1778, the
King of France entered into a treaty of alliance with the United States; and on the 8th of Oct. 1782, a
treaty of Amity and Commerce was concluded between the United States and the States General of
the United Provinces. I have ever [3 U.S. 199, 225] considered it as the established doctrine of the
United States, that their independence originated from, and commenced with, the declaration of
Congress, on the 4th of July, 1776; and that no other period can be fixed on for its commencement;
and that all laws made by the legislatures of the several states, after the declaration of independence,
were the laws of sovereign and independent governments.

That Virginia was part of the dismembered British empire, can, in my judgment, make no difference in
the case. No such distinction is taken by Vattell (or any other writer) but Vattell, when considering the
rights of war between two parties absolutely independent, and no longer acknowledging a common
superior (precisely the case in question) thus expresses himself, Lib. 3.c. 18 s.295. 'In such case, the
state is dissolved, and the war between the two parties, in every respect, is the same with that of a
public war between two different nations.' And Vattell denies, that subjects can acquire property in
things taken during a CIVIL war.

That the creditor and debtor were members of the same empire, when the debt was contracted, cannot
(in my opinion) distinguish the case, for the same reasons. A most arbitrary claim was made by the
parliament of Great Britain, to make laws to bind the people of America, in all cases whatsoever, and
the King of Great Britain, with the approbation of parliament, employed, not only the national forces,
but hired foreign mercenaries to compel submission to this absurd claim of omnipotent power. The
resistance against this claim was just, and independence became necessary; and the people of the
United States announced to the people of Great Britain, 'that they would hold them, as the rest of
mankind, enemies in war, in peace, friends.' On the declaration of independence, it was in the option
of any subject of Great Britain, to join their brethren in America, or to remain subjects of Great Britain.
Those who joined us were entitled to all the benefits of our freedom and independence; but those who
elected to continue subjects of Great Britain, exposed themselves to any loss, that might arise
therefrom. By their adhering to the enemies of the United States, they voluntarily became parties to the
injustice and oppression of the British government; and they also contributed to carry on the war, and
to enslave their former fellow citizens. As members of the British government, from their own choice,
they became personally answerable for the conduct of that government, of which they remained a part;
and their property, wherever found (on land or water) became liable to confiscation. On this ground,
Congress on the 24th of July, 1776, confiscated any British property taken on the seas. See 2 Ruth.
Inst. lib. 2.c.9.s.13.p.531.559. Vatt. [3 U.S. 199, 226] lib.2.c.7.s.81.& c. 18.s.344.lib.3. c,5.s.74.& c. 9.
s. 161 & 193.

The British creditor, by the conduct of his sovereign, became an enemy to the commonwealth of
Virginia; and thereby his debt was forfeitable to that government, as a compensation for the damages
of an unjust war.

It appears to me, that every nation at war with another is justifiable, by the general and strict law of
nations, to seize and confiscate all moveable property of its enemy, (of any kind or nature whatsoever)
wherever found, whether within its territory, or not. Bynkershoek Q. 1. P. de rebus bellicis. Lib. 1. c. 7.
p. 175. thus delivers his opinion. 'Cum ea sit belli conditiout hostes sint, omni jure, spoliati proscriptique,
rationis est, quascunque res hostium, apud hostes inventas, Dominum mutare, et Fisco cedere.' 'Since
it is a condition of war, that enemies, by every right, may be plundered, and seized upon, it is reasonable
that whatever effects of the enemy are found with us who are his enemy, should change their master,
and be confiscated, or go into the treasury.' S. P. Lee on Capt. c. 8.p. 111. S. P.2. Burn.
p.209.s.12.p.219. s.2.p.221s.11. Bynkershoek the same book, and chapter, page 177. thus expresses
himself: 'Quod dixi de actionibus recte publicandis ita demum obtinet. Si quod subditi nostri hostibus
nostris debent, princeps a subditis juis, revera exegerit: Si exegerit recte solutum est, si non exegerit,
pace facta, reviviscit jus pristinum creditoris; quia occupatio, quae bello fit, magis in facto, quam in
potestate juris consistit. Nomina igitur, non exacta, tempore belli quodammodo intermori videntur, sed
per pacem, genere quodam postliminii, ad priorem dominum reverti. Secundum hoec inter gentes fere
convenit ut nominibus bello publicatis, pace deinde facta, exasta censeantur periisse, et maneant
extincta; non autem exacta reviviscant, et restituantur veris creditoribus.'

'What I have said of things in action being rightfully confiscated, holds thus: If the prince truly exacts
from his subjects, what they owed to the enemy; if he shall have exacted it, it is rightfully paid, if he
shall not have exacted it, peace being made, the former right of the creditor revives; because the
seizure, which is made during war, consists more in fact than in right. Debts, therefore, not exacted,
seem as it were to be forgotten in time of war, but upon peace, by a kind of postliminy, return to their
former proprietor. Accordingly, it is for the most part agreed among nations, that things in action, being
confiscated in war, the peace being made, those which were paid are deemed to have perished, and
remain extinct; but those not paid revive, and are restored to their true creditors. Vatt. lib. 4. s.22. S. P.
Lee on Capt. c.8.p 118.' [3 U.S. 199, 227] That this is the law of nations, as held in Great Britain,
appears from Sir Thomas Parker's Rep. p. 267 (II William 3rd) in which it was determined, that choses
in action belonging to an alien enemy are forfeitable to the crown of Great Britain; but there must be a
commission and inquisition to entitle the crown; and if peace is concluded before inquisition taken, it
discharges the cause of forfeiture.

The right to confiscate the property of enemies, during war, is derived from a state of war, and is called
the rights of war. This right originates from self-preservation, and is adopted as one of the means to
weaken an enemy, and to strengthen ourselves. Justice, also, is another pillar on which it may rest; to
wit, a right to reimburse the expence of an unjust war. Vatt. lib.3.c.8.s.138, & c.9.s.161.

But it is said, if Virginia had a right to confiscate British property, yet by the modern law, and practice
of European nations, she was not justified in confiscating debts due from her citizens to subjects of
Great Britain; that is, private debts. Vattell is the only author relied on (or that can be found) to maintain
the distinction between confiscating private debts, and other property of an enemy. He admits the right
to confiscate such debts, if the term of payment happen in the time of war; but this limitation on the right
is no where else to be found. His opinion alone will not be sufficient to restrict the right to that case only.
It does not appear in the present case, whether the time of payment happened before, or during the
war. If this restriction is just, the Plaintiff ought to have shown the fact. Vattell adds, 'at present, in regard
to the advantages and safety of commerce, all the sovereigns of Europe have departed from this rigour;
and this custom has been generally received, and he who should act contrary to it (the custom) would
injure the public faith.' From these expressions it may be fairly inferred, that, by the rigour of the law of
nations, private debts to enemies might be confiscated, as well as any other of their property; but that
a general custom had prevailed in Europe to the contrary; founded on commercial reasons. The law of
nations may be considered of three kinds, to wit, general, conventional, or customary. The first is
universal, or established by the general consent of mankind, and binds all nations. The second is
founded on express consent, and is not universal, and only binds those nations that have assented to
it. The third is founded on TACIT consent; and is only obligatory on those nations, who have adopted
it. The relaxation or departure from the strict rights of war to confiscate private debts, by the commercial
nations of Europe, was not binding on the state of Virginia, because founded on custom only; and she
was at liberty to reject, or adopt the custom, as she pleased. [3 U.S. 199, 228] The conduct of nations
at war, is generally governed and limited by their exigencies and necessities. Great Britain could not
claim from the United States, or any of them, any relaxation of the general law of nations, during the
late war, because she did not consider it, as a civil war, and much less as a public war, but she gave it
the odious name of rebellion; and she refused to the citizens of the United States the strict rights of
ordinary war.

It cannot be forgotten, that the Parliament of Great Britain, by statute (16 Geo.3.c.5. in 1776) declared,
that the vessels and cargoes belonging to the people of Virginia, and the twelve other colonies, found
and taken on the high seas, should be liable to seizure and confiscation, as the property of open
enemies; and, that the mariners and crews should be taken and considered as having voluntarily
entered into the service of the King of Great Britain; and that the killing and destroying the persons and
property of the Americans, before the passing this act, was just and lawful: And it is well known that, in
consequence of this statute, very considerable property of the citizens of Virginia was seized on the
high seas, and confiscated; and that other considerable property, found within that Commonwealth,
was seized and applied to the use of the British army, or navy. Vattel lib. 3.c.12. sec. 191. says, and
reason confirms his opinion, 'That whatever is lawful for one nation to do, in time of war, is lawful for
the other.' The law of nations is part of the municipal law of Great Britain, and by her laws all moveable
property of enemies, found within the kingdom, is considered as forfeited to the crown, as the head of
the nation; but if no inquisition is taken to ascertain the owners to be alien enemies, before peace takes
place, the cause of forfeiture is discharged, by the peace ipso facto. Sir Thomas Parker's Rep. pa.267.
This doctrine agrees with Bynk. lib. 1.c.7. pa. 177. and Lee on Capt. ch.8.p. 118. that debts not
confiscated and paid, revive on peace. Lee says, 'Debts, therefore, which are not taken hold of, seem,
as it were, suspended and forgotten in time of war; but by a peace return to their former proprietor by
a kind of postliminy.' Mr. Lee, who wrote since Vattel, differs from him in opinion, that private debts are
not confiscable, pag. 114. He thus delivers himself: 'By the law of nations, Rights and Credits are not
less in our power than other goods; why, therefore, should we regard the rights of war in regard to one,
and not as to the other? And when nothing occurs, which gives room for a proper distinction, the general
law of nations ought to prevail.' He gives many examples of confiscating debts, and concludes, (p. 119)
'All which prove, that not only actions, but all [3 U.S. 199, 229] other things whatsoever, are forfeited
in time of war, and are often exacted.'

Great Britain does not consider herself bound to depart from the rigor of the general law of nations,
because the commercial powers of Europe wish to adopt a more liberal practice. It may be recollected,
that it is an established principle of the law of nations, 'that the goods of a friend are free in an enemy's
vessel; and an enemy's goods lawful prize in the vessel of a friend.' This may be called the general law
of nations. In 1780 the Empress of Russia proposed a relaxation of this rigor of the laws of nations,
'That all the effects belonging to the subjects of the belligerent powers shall be free on board neutral
vessels, except only contraband articles.' This proposal was acceded to by the neutral powers of
Sweden, Denmark, the States General of the United Provinces, Prussia and Portugal; France and
Spain, two of the powers at war, did not oppose the principle, and Great Britain only declined to adopt
it, and she still adheres to the rigorous principle of the law of nations. Can this conduct of Great Britain
be objected to her as an uncivilized and barbarous practice? The confiscating private debts by Virginia
has been branded with those terms of reproach, and very improperly in my opinion.

It is admitted, that Virginia could not confiscate private debts without a violation of the modern law of
nations, yet if in fact, she has so done, the law is obligatory on all the citizens of Virginia, and on her
Courts of Justice; and, in my opinion, on all the Courts of the United States. If Virginia by such conduct
violated the law of nations, she was answerable to Great Britain, and such injury could only be
redressed in the treaty of peace. Before the establishment of the national government, British debts
could only be sued for in the state court. This, alone, proves that the several states possessed a power
over debts. If the crown of Great Britain had, according to the mode of proceeding in that country,
confiscated, or forfeited American debts, would it have been permitted in any of the courts of
Westminister Hall, to have denied the right of the crown, and that its power was restrained by the
modern law of nations? Would it not have been answered, that the British nation was to justify her own
conduct; but that her courts were to obey her laws.

It appears to me, that there is another and conclusive ground, which effectually precluded any objection,
since the peace, on the part of Great Britain, as a nation, or on the part of any of her subjects, against
the right of Virginia to confiscate British debts, or any other British property, during the war; even on
the admission that such confiscation was in violation of the ancient or modern law of nations. [3 U.S.
199, 230] If the Legislature of Virginia confiscated or extinguished the debt in question, by the law of
the 20th of October 1777, as the Defendants in error contend, this confiscation or extinguishment, took
place in 1777, fagrante Bello; and the definitive treaty of peace was ratified in 1783. What effects flow
from a treaty of peace, even if the confiscation, or extinguishment of the debt was contrary to the law
of nations, and the stipulation in the 4th article of the treaty does not provide for the recovery of the
debt in question?
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded,
neither the matter in dispute, nor the conduct of either party, during the war, can ever be revived, or
brought into contest again. All violencies, injuries, or damages sustained by the government, or people
of either, during the war, are buried in oblivion; and all those things are implied by the very treaty of
peace; and therefore not necessary to be expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished, during the war, by any of the United
States, could only be provided for by the treaty of peace; and if there had been no provision, respecting
these subjects, in the treaty, they could not be agitated after the treaty, by the British government, much
less by her subjects in courts of justice. If a nation, during a war, conducts herself contrary to the law
of nations, and no notice is taken of such conduct in the treaty of peace, it is thereby so far considered
lawful, as never afterwards to be revived, or to be a subject of complaint.

Vattel lib. 4. sect. 21. p. 121. says, 'The state of things at the instant of the treaty, is held to be legitimate,
and any change to be made in it requires an express specification in the treaty; consequently, all things
not mentioned in the treaty, are to remain as they were at the conclusion of it. All the damages caused
during the war are likewise buried in oblivion; and no plea is allowable for those, the reparation of which
is not mentioned in the treaty: They are looked on as if they had never happened.' The same principle
applies to injuries done by one nation to another, on occasion of, and during the war. See Grotius lib.
3. c. 8. sect. 4.

The Baron De Wolfuis, 1222, says, 'De quibus nihil dictum ca manent quo sunt loco.' Things of which
nothing is said remain in the state in which they are.

It is the opinion of the celebrated and judicious Doctor Rutherforth, that a nation in a just war may seize
upon any moveable goods of an enemy, ( and he makes no distinction as to private debts) but that
whilst the war continues, the nation has, of right, nothing but the custody of the goods taken; and [3
U.S. 199, 231] if the nation has granted to private captors (as privateers) the property of goods taken
by them, and on peace, restitution is agreed on, that the nation is obliged to make restitution, and not
the private captors; and if on peace no restitution is stipulated, that the full property of moveable goods,
taken from the enemy during the war, passes, by tacit consent, to the nation that takes them. This I
collect as the substance of his opinion in lib. 2. c. 9, from p. 558 to 573.

I shall conclude my observations on the right of Virginia to confiscate any British property, by remarking,
that the validity of such a law would not be questioned in the Court of Chancery of Great Britain; and I
confess the doctrine seemed strange to me in an American Court of Justice. In the case of Wright and
Nutt, Lord Chancellor Thurlow declared, that he considered an act of the State of Georgia, passed in
1782, for the confiscation of the real and personal estate of Sir James Wright, and also his debts, as a
law of an independent country; and concluded with the following observation, that the law of every
country, must be equally regarded in the Courts of Justice of Great Britain, whether the law was a
barbarous or civilized institution, or wise or foolish. H. Black. Rep. p. 149. In the case of Folliot against
Ogden, Lord Loughborough, Chief Justice of the Court of Common Pleas, in delivering the judgment of
the court, declared 'that the act of the State of New York, passed in 1779, for attainting, forfeiting, and
confiscating the real and personal estate of Folliott, the Plaintiff, was certainly of as full validity, as the
act of any independent State. H. Black. Rep. p. 135. On a writ of error Lord Kenyon, Chief Justice of
the Court of King's Bench, and Judge Grose, delivered direct contrary sentiments; but Judges Asburst
and Buller were silent. 3 Term Rep. p. 726.

From these observations, and the authority of Bynkersboek, Lee, Burlamaque, and Rutherforth, I
conclude, that Virginia had a right, as a sovereign and independent nation, to confiscate any British
property within its territory; unless she had before delegated that power to Congress, which Mr. Lewis
contended she had done. The proof of the allegation that Virginia had transferred this authority to
Congress, lies on those who make it; because if she had parted with such power it must be conceded,
that she once rightfully possessed it.

It has been enquired what powers Congress possessed from the first meeting, in September 1774, until
the ratification of the articles of confederation, on the 1st of March, 1781? It appears to me, that the
powers of Congress, during that whole period, were derived from the people they represented,
expressly given, through the medium of their State Conventions, or State Legislatures; or that after they
were exercised they were [3 U.S. 199, 232] impliedly ratified by the acquiescence and obedience of
the people. After the confederacy was compleated, the powers of Congress rested on the authority of
the State Legislatures, and the implied ratifications of the people; and was a government over
governments. The powers of Congress originated from necessity, and arose out of, and were only
limited by, events or, in other words, they were revolutionary in their very nature. Their extent depended
on the exigencies and necessities of public affairs. It was absolutely and indispensably necessary that
Congress should possess the power of conducting the war against Great Britain, and therefore if not
expressly given by all, (as it was by some of the States) I do not hesitate to say, that Congress did
rightfully possess such power. The authority to make war, of necessity implies the power to make
peace; or the war must be perpetual. I entertain this general idea, that the several States retained all
internal sovereignty; and that Congress properly possessed the great rights of external sovereignty:
Among others, the right to make treaties of commerce and alliance; as with France on the 6th of
February 1778. In deciding on the powers of Congress, and of the several States, before the
confederation, I see but one safe rule, namely, that all the powers actually exercised by Congress,
before that period were rightfully exercised, on the presumption not to be controverted, that they were
so authorized by the people they represented, by an express, or implied grant; and that all the powers
exercised by the State Conventions or State Legislatures were also rightfully exercised, on the same
presumption of authority from the people. That Congress did not possess all the powers of war is self-
evident from this consideration alone, that she never attempted to lay any kind of tax on the people of
the United States, but relied altogether on the State Legislatures to impose taxes, to raise money to
carry on the war, and to sink the emissions of all the paper money issued by Congress. It was expressly
provided, in the 8th article of the confederation, that 'all charges of war (and all other expenses for the
common defence and general welfare) and allowed by Congress, shall be defrayed out of a common
Treasury, to be supplied by the several States in proportion to the value of the land in each State; and
the taxes for paying the said proportion, shall be levied by the Legislatures of the several States.' In
every free country the power of laying taxes is considered a legislative power over the property and
persons of the citizens; and this power the people of the United States, granted to their State
Legislatures, and they neither could, nor did transfer it to Congress; but on the contrary they expressly
stipulated that it should remain with them. It is an incontrovertible fact that Congress never attempted
to confiscate [3 U.S. 199, 233] any kind of British property within the United States (except what their
army, or vessels of war captured) and thence I conclude that Congress did not conceive the power was
vested in them. Some of the states did exercise this power, and thence I infer, they possessed it. On
the 23rd of March, 3rd of April, and 24th of July, 1776, Congress confiscated British property, taken on
the high seas.*

The second point made by the council for the Plaintiff in error was, 'if the legislature of Virginia had a
right to confiscate British debts, yet she did not exercise that right by the act of the 20th October, 1777.'
If this objection is well founded, the Plaintiff in error must have judgment for the money covered by the
plea of that law, and the payment under it. The preamble recites, that the public faith, and the law and
the usage of nations require, that debts incurred, during the connexion with Great Britain, should not
be confiscated. No language can possibly be stronger to express the opinion of the legislature of
Virginia, that British debts ought not to be confiscated, and if the words or effect and operation, of the
enacting clause, are ambiguous or doubtful, such construction should be made as not to extend the
provisions in the enacting clause, beyond the intention of the legislature, so clearly expressed in the
preamble; but if the words in the enacting clause, in their nature, import, and common understanding,
are not ambiguous, but plain and clear, and their operation and effect certain, there is no room for
construction. It is not an uncommon case for a legislature, in a preamble, to declare their intention to
provide for certain cases, or to punish certain offences, and in enacting clauses to include other cases,
and other offences. But I believe very few instances can be found in which the legislature declared that
a thing ought not to be done, and afterwards did the very thing they reprobated. There can be no doubt
that strong words in the enacting part of a law may extend it beyond the preamble. If the preamble is
contradicted by the enacting clause, as to the intention of the legislature, it must prevail, on the principle
that the legislature changed their intention.

I am of opinion, that the law of the 20th of October, 1777, and the payment in virtue thereof, amounts
either to a confiscation, or extinguishment, of so much of the debt as was paid into the loan office of
Virginia. 1st. The law makes it lawful for a citizen of Virginia indebted to a subject of Great Britain [3
U.S. 199, 234] to pay the whole, or any part, of his debt, into the loan office of that commonwealth.
2nd. It directs the debtor to take a certificate of his payment, and to deliver it to the governor and the
council; and it declares that the receipt of the governor and the council for the certificate shall discharge
him (the debtor) from so much of the debt as he paid into the loan office. 3rd. It enacts that the certificate
shall be subject to the future direction of the legislature. And 4th, it provides, that the governor and
council may make such allowance, as they shall think reasonable, out of the interest of the money paid,
to the wives and children, residing within the state, of such creditor. The payment by the debtor into the
loan office is made a lawful act. The public receive the money, and they discharge the debtor, and they
make the certificate (which is the evidence of the payment) subject to their direction; and they
benevolently appropriate part of the money paid, to wit, the interest of the debt, to such of the family of
the creditor as may live within the state. All these acts are plainly a legislative interposition between the
creditor and debtor; annihilates the right of the creditor; and is an exercise of the right of ownership
over the money; for the giving part to the family of the creditor, under the restriction of being residents
of the state, or to a stranger, can make no difference. The government of Virginia had precisely the
same right to dispose of the whole, as of part of the debt. Whether all these acts amount to a
confiscation of the debt, or not, may be disputed according to the different ideas entertained of the
proper meaning of the word confiscation. I am inclined to think that all these acts, collectively
considered, are substantially a confiscation of the debt. The verb confiscate is derived from the latin,
con with, and Fiscus a basket, or hamper, in which the Emperor's treasure was formerly kept. The
meaning of the word to confiscate is to transfer property from private to public use; or to forfeit property
to the prince, or state. In the language of Mr. Lee, (page 118) the debt was taken hold of; and this he
considers as confiscation. But if strictly speaking, the debt was not confiscated, yet it certainly was
extinguished as between the creditor and debtor; the debt was legally paid, and of consequence
extinguished. The state interfered and received the debt, and discharged the debtor from his creditor;
and not from the state, as suggested. The debtor owed nothing to the state of Virginia, but she had a
right to take the debt or not at her pleasure. To say that the discharge was from the state, and not from
the debtor, implies that the debtor was under some obligation or duty to pay the state, what he owed
his British creditor. If the debtor was to remain charged to his creditor, notwithstanding his payment;
not one farthing would have been [3 U.S. 199, 235] paid into the loan office. Such a construction,
therefore, is too violent and not to be admitted. If Virginia had confiscated British debts, and received
the debt in question, and said nothing more, the debtor would have been discharged by the operation
of the law. In the present case, there is an express discharge on payment, certificate, and receipt. It
appears to me that the plea, by the Defendant, of the act of Assembly, and the payment agreeably to
its provisions, which is admitted, is a bar to the plaintiff's action, for so much of his debt as he paid into
the loan office; unless the plea is avoided, or destroyed, by the Plaintiff's replication of the fourth article
of the Definitive Treaty of Peace, between Great Britain and the United States, on the 3rd of September,
1783. The question then may be stated thus: Whether the 4th article of the said treaty nullifies the law
of Virginia, passed on the 20th of October, 1777; destroys the payment made under it; and revives the
debt, and gives a right of recovery thereof, against the original debtor? It was doubted by one of the
counsel for the Defendants in error (Mr. Marshall) whether Congress had a power to make a treaty,
that could operate to annul a legislative act of any of the states, and to destroy rights acquired by, or
vested in individuals, in virtue of such acts. Another of the Defendant's council (Mr. Campbell)
expressly, and with great zeal, denied that Congress possessed such power. But a few remarks will be
necessary to shew the inadmissibility of this objection to the power of Congress. 1st. The legislatures
of all the states, have often exercised the power of taking the property of its citizens for the use of the
public, but they uniformly compensated the proprietors. The principle to maintain this right is for the
public good, and to that the interest of individuals must yield. The instances are many; and among them
are lands taken for forts, magazines, or arsenals; or for public roads, or canals; or to erect towns. 2nd.
The legislatures of all the states have often exercised the power of divesting rights vested; and even of
impairing, and, in some instances, of almost annihilating the obligation of contracts, as by tender laws,
which made an offer to pay, and a refusal to receive, paper money, for a specie debt, an extinguishment,
to the amount tendered. 3rd. If the Legislature of Virginia could, by a law, annul any former law; I
apprehend that the effect would be to destroy all rights acquired under the law so nullified. 4th. If the
Legislature of Virginia could not by ordinary acts of legislation, do these things, yet possessing the
supreme sovereign power of the state, she certainly could do them, by a treaty of peace; if she had not
parted with the power or making [3 U.S. 199, 236] such treaty. If Virginia had such power before she
delegated it to Congress, it follows, that afterwards that body possessed it. Whether Virginia parted
with the power of making treaties of peace, will be seen by a perusal of the ninth article of the
Confederation (ratified by all the states, on the 1st of March, 1781,) in which it was declared, 'that the
United States in Congress assembled, shall have the sole and exclusive right and power of determining
on peace, or war, except in the two cases mentioned in the 6th article; and of entering into treaties and
alliances, with a proviso, when made, respecting commerce.' This grant has no restriction, nor is there
any limitation on the power in any part of the confederation. A right to make peace, necessarily includes
the power of determining on what terms peace shall be made. A power to make treaties must of
necessity imply a power, to decide the terms on which they shall be made. A war between two nations
can only be concluded by treaty.

Surely, the sacrificing public, or private, property, to obtain peace cannot be the cases in which a treaty
would be void. Vatt. lib. 2 c. 12.s. 160. 161. p. 173. lib. 6. c.2. s. 2. It seems to me that treaties made
by Congress, according to the Confederation, were superior to the laws of the states; because the
Confederation made them obligatory on all the states. They were so declared by Congress on the 13th
of April, 1787; were so admitted by the legislatures and executives of most of the states; and were so
decided by the judiciary of the general government, and by the judiciaries of some of the state
governments.

If doubts could exist before the establishment of the present national government, they must be entirely
removed by the 6th article of the Constitution, which provides 'That all treaties made, or which shall be
made, under the authority of the United States, shall be the Supreme law of the land; and the Judges
in every State shall be bound thereby, any thing in the Constitution, or laws, of any State to the contrary
notwithstanding.' There can be no limitation on the power of the people of the United States. By their
authority the State Constitutions were made, and by their authority the Constitution of the United States
was established; and they had the power to change or abolish the State Constitutions, or to make them
yield to the general government, and to treaties made by their authority. A treaty cannot be the Supreme
law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If
the Constitution of a State (which is the fundamental law of the State, and paramount to its Legislature)
must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act [3 U.S.
199, 237] of the State Legislature, must not be prostrate? It is the declared will of the people of the
United States that every treaty made, by the authority of the United States, shall be superior to the
Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary
to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain
consequence follows, that the will of a small part of the United States may controul or defeat the will of
the whole. The people of America have been pleased to declare, that all treaties made before the
establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be
disregarded.

Four things are apparent on a view of this 6th article of the National Constitution. 1st. That it is
Retrospective, and is to be considered in the same light as if the Constitution had been established
before the making of the treaty of 1783. 2nd. That the Constitution, or laws, of any of the States so far
as either of them shall be found contrary to that treaty are by force of the said article, prostrated before
the treaty. 3rd. That consequently the treaty of 1783 has superior power to the Legislature of any State,
because no Legislature of any State has any kind of power over the Constitution, which was its creator.
4thly. That it is the declared duty of the State Judges to determine any Constitution, or laws of any
State, contrary to that treaty (or any other) made under the authority of the United States, null and void.
National or Federal Judges are bound by duty and oath to the same conduct.*

The argument, that Congress had not power to make the fourth article of the treaty of peace, if its intent
and operation was to annul the laws of any of the States, and to destroy vested rights (which the
Plaintiff's Council contended to be the object and effect of the fourth article) was unnecessary, but on
the supposition that this court possess a power to decide, whether this article of the treaty is within the
authority delegated to that body, by the articles of confederation. Whether this court constitutionally
possess such a power is not necessary now to determine, because I am fully satisfied that Congress
were invested with the authority to make the stipulation in the fourth article. If the court possess a power
to declare treaties void, I shall never exercise it, but in a very clear case indeed. One further remark will
shew how very circumspect the court ought to be before they would decide against the right of Congress
to make the stipulation objected to. If Congress had no [3 U.S. 199, 238] power (under the
confederation) to make the fourth article of the treaty, and for want of power that article is void, would
it not be in the option of the crown of Great Britain to say, whether the other articles, in the same treaty,
shall be obligatory on the British nation?

I will now proceed to the consideration of the treaty of 1783. It is evident on a perusal of it what were
the great and principal objects in view by both parties. There were four on the part of the United States,
to wit. 1st. An acknowledgment of their independence, by the crown of Great Britain. 2nd. A settlement
of their western bounds. 3rd. The right of fishery: and 4thly. The free navigation of the Mississippi.
There were three on the part of Great Britain, to wit, 1st. A recovery by British Merchants, of the value
in sterling money, of debts contracted, by the citizens of America, before the treaty. 2nd. Restitution of
the confiscated property of real British subjects, and of persons residents in districts in possession of
the British forces, and who had not borne arms against the United States; and a conditional restoration
of the confiscated property of all other persons: and 3rdly. A prohibition of all future confiscations, and
prosecutions. The following facts were of the most public notoriety, at the time when the treaty was
made, and therefore must have been very well known to the gentlemen who assented to it. 1st. That
British debts, to a great amount, had been paid into some of the State Treasuries, or loan offices, in
paper money of very little value, either under laws confiscating debts, or under laws authorising
payment of such debts in paper money, and discharging the debtors. 2nd. That tender laws had existed
in all the states; and that by some of those laws, a tender and a refusal to accept, by principal or factor,
was declared an extinguishment of the debt. From the knowledge that such laws had existed there was
good reason to fear that similar laws, with the same or less consequences, might be again made, (and
the fact really happened) and prudence required to guard the British creditor against them. 3rd. That in
some of the States property, of any kind, might be paid, at an appraisement, in discharge of any
execution. 4th. That laws were in force in some of the States, at the time of the treaty, which prevented
suits by British creditors. 5th. That laws were in force in other of the States, at the time of the treaty, to
prevent suits by any person for a limited time. All these laws created legal impediments, of one kind or
another, to the recovery of many British debts, contracted before the war; and in many cases compelled
the receipt of property instead of gold and silver.

To secure the recovery of British debts, it was by the latter part of the 5th article, agreed as follows,
'That all persons [3 U.S. 199, 239] who have any interest in confiscated lands, by DEBTS, should
meet with no lawful impediment in the prosecution of their just rights.' This provision clearly relates to
debts secured by mortgages on lands in see simple, which were afterwards confiscated; or to debts on
judgments, which were a lien on lands, which also were afterwards confiscated, and where such debts
on mortgages, or judgments, had been paid into the State Treasuries, and the debtors discharged. This
stipulation was absolutely necessary if such debts were intended to be paid. The pledge, or security by
lien, had been confiscated and sold. British subjects being aliens, could neither recover the possession
of lands by ejectment, nor foreclose the equity of redemption; nor could they claim the money secured
by a mortgage, or have the benefit of a lien from a judgment, if the debtor had paid his debt into the
Treasury, and been discharged. If a British subject, in either of those cases, prosecuted his just right,
it could only be in a court of justice, and if any of the above causes were set up as a lawful impediment,
the courts were bound to decide, whether this article of the treaty nullified the laws confiscating the
lands, and also the purchases made under them, or the laws authorizing payment of such debts to the
State; or whether aliens were enabled, by this article, to hold lands mortgaged to them before the war.
In all these cases, it seems to me, that the courts, in which the cases arose, were the only proper
authority to decide, whether the case was within this article of the treaty, and the operation and effect
of it. One instance among many will illustrate my meaning. Suppose a mortgagor paid the mortgage
money into the public Treasury, and afterwards sold the land, would not the British creditor, under this
article, be entitled to a remedy against the mortgaged lands?

The fourth article of the treaty is in these words: 'It is agreed that creditor, on either side, shall meet
with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts,
heretofore contracted.'

Before I consider this article of the treaty, I will adopt the following remarks, which I think applicable,
and which may be found in Dr. Rutherforth and Vattel. (2 Ruth. 307 to 315. Vattel lib. 2. c. 17. sect, 263
and 271.) The intention of the framers of the treaty, must be collected from a view of the whole
instrument, and from the words made use of by them to express their intention, or from probable or
rational conjectures. If the words express the meaning of the parties plainly, distinctly, and perfectly,
there ought to be no other means of interpretation; but if the words are obscure, or ambiguous, or
imperfect, recourse must be had to other means of interpretation, and in these three cases, we must
collect the meaning from the words, [3 U.S. 199, 240] or from probable or rational conjectures, or from
both. When we collect the intention from the words only, as they lie in the writing before us, it is a literal
interpretation; and indeed if the words, and the construction of a writing, are clear and precise, we can
scarce call it interpretation to collect the intention of the writer from thence. The principal rule to be
observed in literal interpretation, is to follow that sense, in respect both of the words, and the
construction, which is agreeable to common use.
If the recovery of the present debt is not within the clear and manifest intention and letter of the fourth
article of the treaty, and if it was not intended by it to annul the law of Virginia, mentioned in the plea,
and to destroy the payment under it, and to revive the right of the creditor against his original debtor;
and if the treaty cannot effect all these things, I think the court ought to determine in favour of the
Defendants in error. Under this impression, it is altogether unnecessary to notice the several rules laid
down by the Council for the Defendants in error, for the construction of the treaty.

I will examine the fourth article of the treaty in its several parts; and endeavour to affix the plain and
natural meaning of each part.

To take the fourth article in order as it stands.

1st. 'It is agreed,' that is, it is expressly contracted; and it appears from what follows, that certain things
shall not take place. This stipulation is direct. The distinction is self-evident, between a thing that shall
not happen, and an agreement that a third power shall prevent a certain thing being done. The first is
obligatory on the parties contracting. The latter will depend on the will of another; and although the
parties contracting, had power to lay him under a moral obligation for compliance, yet there is a very
great difference in the two cases. This diversity appears in the treaty.

2nd. 'That creditors on either side,' without doubt meaning British and American creditors.

3rd. 'Shall meet with no lawful impediment,' that is, with no obstacle (or bar) arising from the common
law, or acts of Parliament, or acts of Congress, or acts of any of the States, then in existence, or
thereafter to be made, that would, in any manner, operate to prevent the recovery of such debts, as the
treaty contemplated. A lawful impediment to prevent a recovery of a debt can only be matter of law
pleaded in bar to the action. If the word lawful had been omitted, the impediment would not be confined
to matter of law. The prohibition that no lawful impediment shall be interposed, is the same as that all
lawful impediments shall be removed. The meaning cannot be satisfied by the removal of one
impediment, and leaving another; and a [3 U.S. 199, 241] fortiori by taking away the less and leaving
the greater. These words have both a retrospective and future aspect.

4th. 'To the recovery,' that is, to the right of action, judgment, and execution, and receipt of the money,
without impediments in courts of justice, which could only be by plea, (as in the present case) or by
proceedings, after judgment, to compel receipt of paper money, or property, instead of sterling money.
The word recovery is very comprehensive, and operates, in the present case, to give remedy from the
commencement of suit, to the receipt of the money.

5th. 'In the full value in sterling money,' that is, British creditors shall not be obliged to receive paper
money, or property at a valuation, or any thing else but the full value of their debts, according to the
exchange with Great Britain. This provision is clearly restricted to British debts, contracted before the
treaty, and cannot relate to debts contracted afterwards, which would be dischargeable according to
contract, and the laws of the State where entered into. This provision has also a future aspect in this
particular, namely, that no lawful impediment, no law of any of the States made after the treaty, shall
oblige British creditors to receive their debts, contracted before the treaty, in paper money, or property
at appraisement, or in any thing but the value in sterling money. The obvious intent of these words was
to prevent the operation of past and future tender laws; or past and future laws, authorizing the
discharge of executions for such debts by property at a valuation.

6th. 'Of all bona fide debts,' that is, debts of every species, kind, or nature, whether by mortgage, if a
covenant therein for payment; or by judgments, specialties, or simple contracts. But the debts
contemplated were to be bona fide debts, that is, bona fide contracted before the peace, and contracted
with good faith, or honestly, and without covin, and not kept on foot fraudulently. Bona fide is a legal
technical expression; and the law of Great Britain and this country has annexed a certain idea to it. It
is a term used in statutes in England, and in acts of Assembly of all the States, and signifies a thing
done really, with a good faith, without fraud, or deceit, or collusion, or trust. The words bona fide are
restrictive, for a debt may be for a valuable consideration, and yet not bona fide. A debt must be bona
fide at the time of its commencement, or it never can become so afterwards. The words bona fide, were
not prefixed to describe the nature of the debt at the date of the treaty, but the nature of the debt at the
time it was contracted. Debts created before the war, were almost the only debts in the contemplation
of the treaty; although debts contracted during the war were covered by the general provision, taking
in debts from the most distant period of time, [3 U.S. 199, 242] to the date of the treaty. The recovery,
where no lawful impediments were to be interposed, was to have two qualifications: 1st. The debts
were to be bona fide contracted; and, 2nd, they were to be contracted before the peace.

7th. 'Heretofore contracted,' that is, entered into at any period of time before the date of the treaty;
without regard to the length or distance of time. These words are descriptive of the particular debts that
might be recovered; and relate back to the time such debts were contracted. The time of the contract
was plainly to designate the particular debts that might be recovered. A debt entered into during the
war, would not have been recoverable, unless under this description of a debt contracted at any time
before the treaty.

If the words of the fourth article taken separately, truly bear the meaning I have given them, their sense
collectively, cannot be mistaken, and must be the same.

The next enquiry is, whether the debt in question, is one of those, described in this article. It is very
clear that the article contemplated no debts but those contracted before the treaty; and no debts but
only those to the recovery whereof some lawful impediment might be interposed. The present debt was
contracted before the war, and to the recovery of it a lawful impediment, to wit, a law of Virginia and
payment under it, is pleaded in bar. There can be no doubt that the debt sued for, is within the
description, if I have given a proper interpretation of the words. If the treaty had been silent as to debts,
and the law of Virginia had not been made, I have already proved that debts would, on peace, have
revived by the law of nations. This alone shows that the only impediment to the recovery of the debt in
question, is the law of Virginia, and the payment under it; and the treaty relates to every kind of legal
impediment.

But it is asked, did the fourth article intend to annul a law of the states? and destroy rights acquired
under it?

I answer, that the fourth article did intend to destroy all lawful impediments, past and future; and that
the law of Virginia, and the payment under it, is a lawful impediment; and would bar a recovery, if not
destroyed by this article of the treaty. This stipulation could not intend only to repeal laws that created
legal impediments, to the recovery of the debt (without respect to the mode of payment) because the
mere repeal of a law would not destroy acts done, and rights acquired, under the law, during its
existence and before the repeal. This right to repeal was only admitted by the council for the Defendants
in error, because a repeal would not affect their case; but on the same ground that a treaty can repeal
a law of the state, it can nullify it. I have already proved, that a treaty can totally annihilate [3 U.S. 199,
243] any part of the Constitution of any of the individual states, that is contrary to a treaty. It is admitted
that the treaty intended and did annul some laws of the states, to wit, any laws, past or future, that
authorised a tender of paper money to extinguish or discharge the debt, and any laws, past or future,
that authorised the discharge of executions by paper money, or delivery of property at appraisement;
because if the words sterling money have not this effect, it cannot be shewn that they have any other.
If the treaty could nullify some laws, it will be difficult to maintain that it could not equally annul others.

It was argued, that the fourth article was necessary to revive debts which had not been paid, as it was
doubtful, whether debts not paid would revive on peace by the law of nations. I answer, that the fourth
article was not necessary on that account, because there was no doubt that debts not paid do revive
by the law of nations; as appears from Bynkershock, Lee, and Sir Thomas Parker. And if necessary,
this article would not have this effect, because it revives no debts, but only those to which some legal
impediment might be interposed, and there could be no legal impediment, or bar, to the recovery, after
peace, of debts not paid, during the war to the state.

It was contended, that the provision is, that CREDITORS shall recover, etc. and there was no creditor
at the time of the treaty, because there was then no debtor, he having been legally discharged. The
creditors described in the treaty, were not creditors generally, but only those with whom debts had been
contracted, at some time before the treaty; and is a description of persons, and not of their rights. This
adhering to the letter, is to destroy the plain meaning of the provision; because, if the treaty does not
extend to debts paid into the state treasuries, or loan offices, it is very clear that nothing was done by
the treaty as to those debts, not even so much as was stipulated for Royalists, and Refugees, to wit, a
recommendation of restitution. Further, by this construction, nothing was done for British creditors,
because the law of nations secured a recovery of their debts, which had not been confiscated and paid
to the states; and if the debts paid in paper money, of little value, into the state treasuries, or loan
offices, were not to be paid to them, the article was of no kind of value to them, and they were deceived.
The article relates either to debts not paid, or, to debts paid into the treasuries, or loan offices. It has
no relation to the first, for the reasons above assigned; and if it does not include the latter it relates to
nothing.

It was said that the treaty secured British creditors from payment in paper money. This is admitted, but
it is by force [3 U.S. 199, 244] and operation of the words, 'in sterling money,' but then the words,
'heretofore contracted,' are to have no effect whatsoever; and it is those very words, and those only,
that secure the recovery of the debts, paid to the states; because no lawful impediment is to be allowed
to prevent the recovery of debts contracted at any time before the treaty.

But it was alledged, that the fourth article only stipulates, that there shall be no lawful impediment, etc.
but that a law of the state was first necessary to annul the law creating such impediment; and that the
state is under a moral obligation to pass such a law; but until it is done, the impediment remains.

I consider the fourth article in this light, that it is not a stipulation that certain acts shall be done, and
that it was necessary for the legislatures of individual states, to do those acts; but that it is an express
agreement, that certain things shall not be permitted the American courts of justice; and that it is a
contract, on behalf of those courts, that they will not allow such acts to be pleaded in bar, to prevent a
recovery of certain British debts. 'Creditors are to meet with no lawful impediment, etc.' As creditors
can only sue for the recovery of their debts, in courts of justice; and it is only in courts of justice that a
legal impediment can be set up by way of plea, in bar of their actions; it appears to me, that the courts
are bound to overrule every such plea, if contrary to the treaty. A recovery of a debt can only be
prevented by a plea in bar to the action. A recovery of a debt in sterling money, can only be prevented
by a like plea in bar to the action, as tender and refusal, to operate as an extinguishment. After
judgment, payment thereof in sterling money can only be prevented by some proceedings under some
law, that authorises the debtor to discharge an execution in paper money, or in property, at a valuation.
In all these, and similar cases, it appears to me, that the courts of the United States are bound, by the
treaty, to interfere. No one can doubt that a treaty may stipulate, that certain acts shall be done by the
Legislature; that other acts shall be done by the Executive; and others by the Judiciary. In the sixth
article it is provided, that no future prosecutions shall be commenced against any person, for or by
reason of the part he took in the war. Under this article the American courts of justice discharged the
prosecutions, and the persons, on receipt of the treaty, and the proclamation of Congress. 1 Dall. Rep.
233.

If a law of the State to annul a former law was first necessary, it must be either on the ground that the
treaty could not annul any law of a State; or that the words used in the treaty were not explicit or
effectual for that purpose. Our Federal Constitution establishes the power of a treaty over the
constitution [3 U.S. 199, 245] and laws of any of the States; and I have shown that the words of the
fourth article were intended, and are sufficient to nullify the law of Virginia, and the payment under it. It
was contended that Virginia is interested in this question, and ought to compensate the Defendants in
error, if obliged to pay the Plaintiff under the treaty. If Virginia had a right to receive the money, which I
hope I have clearly established, by what law is she obliged to return it? The treaty only speaks of the
original debtor, and says nothing about a recovery from any of the States. It was said that the defendant
ought to be fully indemnified, if the treaty compels him to pay his debt over again; as his rights have
been sacrificed for the benefit of the public. That Congress had the power to sacrifice the rights and
interests of private citizens to secure the safety or prosperity of the public, I have no doubt; but the
immutable principles of justice; the public faith of the States, that confiscated and received British debts,
pledged to the debtors; and the rights of the debtors violated by the treaty; all combine to prove, that
ample compensation ought to be made to all the debtors who have been injured by the treaty for the
benefit of the public. This principle is recognized by the Constitution, which declares, 'that private
property shall not be taken for public use without just compensation'. See Vattel. lib. 1. c. 20. s. 244.
Although Virginia is not bound to make compensation to the debtors, yet it evident that they ought to
be indemnified, and it is not to be supposed, that those whose duty it may be to make the compensation,
will permit the rights of our citizens to be sacrificed to a public object, without the fullest indemnity. On
the best investigation I have been able to give the fourth article of the treaty, I cannot conceive, that the
wisdom of men could express their meaning in more accurate and intelligible words, or in words more
proper and effectual to carry their intention into execution. 2 Am satisfied, that the words, in their natural
import, and common use, give a recovery to the British creditor from his original debtor of the debt
contracted before the treaty, notwithstanding the payment thereof into the public treasuries, or loan
offices, under the authority of any State law; and, therefore, I am of opinion, that the judgment of the
Circuit Court ought to be reversed, and that judgment ought to be given, on the demurrer, for the Plaintiff
in error; with the costs in the Circuit Court, and the costs of the appeal.

Paterson, Justice. The present suit is instituted on a bond bearing date the 7th of July 1774, and
executed by Daniel Lawrence Hylton & Co. and Francis Eppes, citizens of the State of Virginia, to
Joseph Farrel and William Jones, subjects [3 U.S. 199, 246] of the king of Great Britain, for the
payment of 2,976 11s. 6d. British, or sterling, money.

The Defendants, among other pleas, pleaded,

1st. Payment; on which issue is joined.

2nd. That 3111 1-9 dollars, equal to 933 14s. od. part of the debt mentioned in the declaration, were,
on the 26th of April 1780, paid by them into the loan office of Virginia pursuant to an act of that State,
passed the 20th of October 1777, entitled, 'An act for sequestering British property, enabling those
indebted to British subjects to pay off such debts, and directing the proceedings in suits where such
subjects are parties'. The material section of the act is recited in the plea.

To this plea the Plaintiffs reply, and set up the fourth article of the treaty, made the 3rd. of September
1783, between the United States and his Britannic Majesty, and the Constitution of the United States
making treaties the supreme law of the land.

The rejoinder sets forth, that the debt in the declaration mentioned, or so much thereof as is equal to
the sum of 933 14s. od. was not a bona fide debt due and owing to the Plaintiffs on the 3rd of September
1783, because the Defendants had, on the 26th of April 1780, paid, in part thereof, the sum of 3111 1-
9 dollars into the loan office of Virginia, and obtained a certificate and receipt therefor pursuant to the
directions of the said act; without that, that the said treaty of peace, and the Constitution of the United
States entitle the Plaintiffs to maintain their action against the Defendants for so much of the said debt
in the declaration mentioned as is equal to 933 14s.

To this rejoinder the Plaintiffs demur.

The defendants join in demurrer.

On this issue in law judgment was entered for the Defendants in the Circuit Court for the District of
Virginia. A Writ of Error has been brought, and the general errors are assigned.

The question is, whether the judgment rendered in the Circuit Court be erroneous? I shall not pursue
the range of discussion, which was taken by the Counsel on the part of the Plaintiffs in error. I do not
deem it necessary to enter on the question, whether the Legislature of Virginia had authority to make
an act, confiscating the debts due from its citizens to the subjects of the king of Great Britain, or whether
the authority in such case was exclusively in Congress. I shall read and make a few observations on
the act, which has been pleaded in bar, and then pass to the consideration of the fourth [3 U.S. 199,
247] article of the treaty. The first and third sections are the only parts of the act necessary to be
considered.

1st. 'Whereas divers persons, subjects of Great Britain, had, during our connexion with that kingdom,
acquired estates, real and personal, within this commonwealth, and had also become entitled to debts
to a considerable amount, and some of them had commenced suits for the recovery of such debts
before the present troubles had interrupted the administration of justice, which suits were at that time
depending and undetermined, and such estates being acquired and debts incurred, under the sanction
of the laws and of the connexion then subsisting, and it not being known that their sovereign hath as
yet set the example of confiscating debts and estates under the like circumstances, the public faith,
and the law and usages of nations require, that they should not be confiscated on our part, but the
safety of the United States demands, and the same law and usages of nations will justify, that we should
not strengthen the hands of our enemies during the continuance of the present war, by remitting to
them the profits or proceeds of such estates, or the interest or principal of such debts.'

3rd. 'And be it further enacted, that it shall and may be lawful for any citizen of this commonwealth,
owing money to a subject of Great Britain, to pay the same, or any part thereof, from time to time, as
he shall think fit, into the said loan office, taking thereout a certificate for the same in the name of the
creditor, with an endorsement under the hand of the commissioner of the said office expressing the
name of the payer, and shall deliver such certificate to the Governor and Council, whose receipt shall
discharge him from so much of the debt. And the Governor and Council shall in like manner lay before
the General Assembly, once in every year, an account of these certificates, specifying the names of
the persons by and for whom they were paid, and shall see to the safe- keeping of the same, subject
to the future direction of the Legislature.'

The act does not confiscate debts due to British subjects. The preamble reprobates the doctrine as
being inconsistent with public faith, and the law and usages of nations. The payments made into the
loan office were voluntary and not compulsive; for it was in the option of the debtor to pay or not. The
enacting clause will admit of a construction in full consistency with the preamble; for, although the
certificates were to be subject to the future direction of the Legislature, yet it was under the express
declaration, that there should be no confiscation, unless the King of Great Britain should set the
example; if he should confiscate debts due to the citizens [3 U.S. 199, 248] of Virginia, then the
Legislature of Virginia would confiscate debts due to British subjects. But the King of Great Britain did
not confiscate debts on his part, and the Legislature of Virginia have not confiscated debts on their part.
It is, however, said, that the payment being made under the act, the faith of Virginia is plighted. True-
but to whom is it plighted- to the creditor or debtor-to the alien enemy, or to its own citizen, who made
the voluntary payment? Or will it be shaped and varied according to the event-if one way, then to the
creditor; if another, then to the debtor. Be these points as they may, the Legislature thought it expedient
to declare to what amount Virginia should be bound for payments so made. The act for this purpose
was passed on the 3rd of January, 1780; and is entitled 'An act concerning monies paid into the public
loan office, in payment of British debts.'

'Section 1. Whereas by an act of the General Assembly, entitled 'An act for sequestering British
property, enabling those indebted to British subjects, to pay off such debts, and directing the
proceedings in suits where such subjects are parties;' it is among other things provided, that it shall and
may be lawful for any citizen of this commonwealth, owing money to a subject of Great Britain, to pay
the same, or any part thereof, from time to time, as he shall think fit, into the said loan office, taking
thereout a certificate for the same, in the name of the creditor; with an indorsement under the hand of
the commissioner of the said office, expressing the name of the payer; and shall deliver such certificate
to the governor and council, whose receipt shall discharge him from so much of the debt; and the
Governor and Council shall, in like manner, lay before the General Assembly, once in every year, an
account of these certificates, specifying the names of the persons, by and for whom they were paid,
and shall see to the safe keeping of the same, subject to the future direction of the Legislature.

'Sect. 2. And whereas it belongs not to the Legislature to decide particular questions, of which the
judiciary have cognizance, and it is therefore unfit for them to determine, whether the payments so
made into the loan office, as aforesaid, be good or void between the creditor and debtor. But it is
expedient to declare to what amount this commonwealth may be bound for the payments aforesaid. Be
it enacted and declared, That this commonwealth shall, at no time nor in any event or contingency, be
liable to any person or persons whatsoever, for any sum, on account of the payments aforesaid, other
than the value thereof when reduced by the scale of depreciation, established by one other act of the
General Assembly, entitled An act directing the mode of adjusting and settling the payment [3 U.S. 199,
249] of certain debts and contracts, and for other purposes, with interest thereon, at the rate of six per
centum per annum; any law, usage, custom, or any adjudication or construction of the first recited act
already made, or hereafter be made notwithstanding.'

On the part of the Defendants, it has been also urged, that it is immaterial whether the payment be
voluntary or compulsive, because the payer, on complying with the directions of the act, shall be
discharged from so much of the debt. Be it so. If the Legislature had authority to make the act, the
Congress could, by treaty, repeal the act, and annul every thing done under it. This leads us to consider
the treaty and its operation. Treaties must be construed in such manner, as to effectuate the intention
of the parties. The intention is to be collected from the letter and spirit of the instrument, and may be
illustrated and enforced by considerations deducible from the situation of the parties; and the
reasonableness, justice, and nature of the thing, for which provision has been made. The fourth article
of the treaty gives the text, and runs in the following words:

'It is agreed, that creditors on either side, shall meet with no legal impediment to the recovery of the full
value in sterling money, of all bona fide debts heretofore contracted.'
The phraseology made use of, leaves in my mind no room to hesitate as to the intention of the parties.
The terms are unequivocal and universal in their signification, and obviously point to and comprehend
all creditors, and all debtors, previously to the 3rd of September, 1783. In this article there appears to
be a selection of expressions plain and extensive in their import, and admirably calculated to obviate
doubts, to remove difficulties, to designate the objects, and ascertain the intention of the contending
powers, and, in short, to meet and provide for all possible cases that could arise under the head or
debts. The words 'creditors on either side,' embrace every description of creditors, and cannot be limited
or narrowed down to such only, whose debtors had not paid into the loan office of Virginia. Creditors
must have debtors; debtors is the correlative term. Who are these debtors? On the part of the
Defendants in error, it has been contended, that Virginia is the substituted debtor, so far as respects
debtors, who may have paid money into the loan office under its laws. But the idea, that the treaty may
be satisfied by substituting the state of Virginia in the stead of the original debtor, is far fetched, and
altogether inadmissible. The terms in which the article is expressed, clearly evince a contrary intention,
and naturally and irresistably carry the mind back to the original debtor; for, as between the British
creditor and the[3 U.S. 199, 250] state of Virginia, there was no express and pre-existing stipulation
or debt. Besides, what lawful impediment was to be removed out of the way of the creditor, if Virginia
was the substituted or self-created debtor? Did this clause make Virginia liable to a prosecution for the
debt? Is Virginia now suable by such British creditor? No; he would in such case be totally remediless,
unless the nation of which he is a subject, would interpose in his behalf. The words 'shall meet with no
lawful impediment,' refer to legislative acts, and every thing done under them, so far as the creditor
might be affected or obstructed in regard either to his remedy or right. All lawful impediments of
whatever kind they might be, whether they related to personal disabilities, or confiscations,
sequestrations, or payments into loan offices or treasuries, are removed. No act of any state legislature,
and no payment made under such act into the public coffers, shall obstruct the creditor in his course of
recovery against his debtor. The act itself is a lawful impediment, and therefore is repealed; the payment
under the act is also a lawful impediment, and therefore is made void. The article is to be construed
according to the subject matter or nature of the impediment; it repeals in the first instance, and nullifies
in the second. Unless this be the construction, it is not true, that the creditor shall meet with no legal
impediment to the recovery of his debt. Does not the plea in the present case contradict the treaty, and
raise an impediment in the way of recovery, when the treaty declares there shall be none? Payments
made in paper money into loan offices, and treasuries, were the principal impediments to be removed,
and mischiefs to be redressed. The article makes provision accordingly. It stipulates, that the creditor
shall recover the full value of his debt in sterling money; hereby securing and guarding him against all
payments in paper money. Suppose the creditor should call on Virginia for payment- what would it be-
the paper money paid into the loan office, or its value. Would this be a compliance with the article? In
the one case, the money being cried down and dead, is no better than waste paper; and in the other,
the payment, when reduced by the table of depreciation, would be inconsiderable, and in many cases
not more than six-pence in the pound. Can this be called payment to the full value of the debt in sterling
money? The subsequent expressions in the article, enforce the preceding observations, and mark the
will and intention of the contracting parties, in the most clear and precise terms. The concluding words
are, 'all bona fide debts heretofore contracted.' In the construction of contracts, words are to be taken
in their natural and obvious meaning, unless some good reason be assigned, to show, [3 U.S. 199,
251] that they should be understood in a different sense. Now, if a person, in reading this article,
should take the words in their common meaning, and as generally understood, could be mistake the
intention of the parties? Their design unquestionably was, to restore the creditor and debtor to their
original state, and place them precisely in the situation they would have stood, if no war had intervened,
or act of the Legislature of Virginia had been passed. The impediments created by Legislative acts, and
the payments made in pursuance of them, and all the evils growing out of them, were, so far as
respected creditors, done away and cured. This is the only way in which all lawful impediments can be
removed, and all debts, contracted before the date of the treaty, can be recovered to their full value, by
the creditors against their debtors. It has, however, been urged, that this article must be restricted to
debts existing and due at the time of making the treaty; that the debt in question was discharged,
because it has been paid into the Loan Office, agreeably to law; and that the treaty ought not to be
construed so as to renovate or revive it. To enforce this objection, the rule laid down by Vattel was
relied on, 'that the state of things at the instant of the treaty, is to be held legitimate, and any change to
be made in it requires an express specification in the treaty; consequently all things not mentioned in
the treaty, are to remain as they were at the conclusion of it.' Vatt. B. 4. c. 2. s. 21. The first part of the
objection has been already answered; for it is within both the letter and spirit of the instrument, that the
creditors should be reinstated, and, of course, that the debtors should be liable to pay. The act of
Virginia, and the payment under it have, so far as the creditor is concerned, no operation, and are void.
There is no difficulty in answering the objection arising from the passage in Vattel. The universality of
the terms is equal to an express specification in the treaty, and indeed includes it. For it is fair and
conclusive reasoning, that if any description of debtors or class of cases was intended to be excepted,
it would have been specified in the instrument, and the words, 'that creditors on either side, shall meet
with no lawful impediment to the recovery of the full value in sterling money of all debts heretofore
contracted,' would not have been made use of in the unqualified manner, in which they stand in the
treaty. Another article in the treaty now under review, will serve by way of illustration.

'Article VII. There shall be a firm and perpetual peace between his Britannic Majesty and the said States,
and between the subjects of the one and the citizens of the other, wherefore all hostilities both by sea
and land shall then immediately cease: all prisoners on both sides shall be set at liberty, and his
Britannic [3 U.S. 199, 252] Majesty shall, with all convenient speed, and without causing any
destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all
his armies, garrisons and fleets from the said United States, and from every port, place and harbour
within the same; leaving in all fortifications the American artillery that may be therein. And shall also
order and cause all archives, records, deeds, and papers, belonging to any of the said States, or their
citizens, which in the course of the war may have fallen into the hands of his officers, to be forthwith
restored and delivered to the proper States and persons to whom they belong.' Would it be an objection
on the part of his Britannic Majesty, that the state of things at the instant of the treaty is to be held
legitimate, and any change to be made in it, requires an express specification? That the forts are not
specified, and therefore not to be given up? The objection would be considered as futile and evasive.
The answer would be, that there is no doubt, because the expressions are general, comprehend the
forts, and are equal to an express specification. So in the present case, the universality of the terms
are equal to a specification of every particular debt, or an enumeration of every creditor and debtor. It
is the same thing as though they had been individually named. All the creditors on either side, without
distinction, must have been contemplated by the parties in the fourth article. Almost every word,
separately taken, is expressive of this idea, and when all the words are combined and taken together,
they remove every particle of doubt. But if the class of British creditors, whose debtors have paid into
the Loan Office of Virginia, are not comprehended in the fourth article, then they pass without redress,
without notice, without so much as a recommendation in their favour. The thing is incredible. Why a
distinction- why should the creditors, whose debtors paid into the Loan Office, be in a worse situation
than the creditors, whose debtors did not thus pay? The traders, and others of this country, were largely
indebted to the merchants of Great Britain. To provide for the payment of these debts, and give
satisfaction to this class of subjects, must have been a matter of primary importance to the British
ministry. This, doubtless, is at all times, and in all situations, an object of moment to a commercial
country. The opulence, resources, and power of the British nation, may, in no small degree, be ascribed
to its commerce; it is a nation of manufacturers and merchants. To protect their interests and provide
for the payment of debts due to them, especially when those debts amounted to an immense sum,
could not fail of arresting the attention, and calling forth the utmost exertions of the British cabinet. A
measure of this kind, it is easy to perceive, would be pursued with unremitting [3 U.S. 199,
253] diligence and ardour; sacrifices would be made to ensure its success; and, perhaps, nothing
short of extreme necessity would induce them to give it up. But, if the debts, which have been
confiscated, or paid into loan offices, or treasuries, be not within the provision of the fourth article, then
a numerous class of British merchants are passed over in silence, and not so much attended to as the
loyalists, or Americans, who attached themselves to the cause of Britain during the war. Is it a
supposable case, that the British negociators would have been more regardful of the interests of the
loyalists than of their own merchants? That they would make a discrimination between merchants,
when in a national and political view, and in the eye of justice, they were equally meritorious, and
entitled to receive complete satisfaction for their debts? No line should be drawn between creditors
unless it be found in the treaty. The treaty does not make it: the truth is, that none was intended; for, if
intended, it would have been expressed. The indefinite and sweeping terms made use of by the parties,
such as 'creditors on either side, no lawful impediment to the recovery of the full value in sterling money,
of all debts heretofore contracted,' exclude the idea of any class of cases having been intended to be
excepted, and explode the doctrine of constructive discrimination. The fourth article appears to me to
come within the first general maxim of interpretation laid down by Vattel. 'It is not permitted to interpret
what has no need of interpretation. When an act is conceived in clear and precise terms, when the
sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which this
treaty naturally presents. To go elsewhere in search of conjectures, in order to restrain or extinguish it,
is to endeavour to elude it. If this dangerous method be once admitted, there will be no act which it will
not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms
the most clear and determinate; all this shall be of no use, if it be allowed to search for foreign reasons,
in order to maintain what cannot be found in the sense it naturally presents.' Vatt. B. 2. ch. 17. s. 263.

To proceed, the construction on the part of the defendants excludes mutuality. The debts due from
British subjects to American citizens were not confiscated, or sequestered or drawn into the public
coffers. They were left untouched. Now, if all the British debtors be compelled to pay their American
creditors, and a part only of the American debtors be compelled to pay their British creditors, there will
not be that mutuality in the thing, which its nature and justice require. The rule in such case should work
both ways: Whereas the other construction creates mutuality, and proceeds upon [3 U.S. 199,
254] indiscriminating principles. The former construction does violence to the letter and spirit of the
instrument; the latter flows easily and naturally out of it.

It has been made a question, whether the confiscation of debts, which were contracted by individuals
of the enemy in time of war, is authorised by the law of nations among civilized states? I shall not,
however, controvert the position, that, by the rigour of the law of nations, debts of the description just
mentioned, may be confiscated. This rule has by some been considered as a relict of barbarism; it is
certainly a hard one, and cannot continue long among commercial nations; indeed, it ought not to have
existed among any nations, and, perhaps, is generally exploded at the present day in Europe. Hear the
language of Vattell on this subject, B. 3. c. 5. s. 77. 'But at present, in regard to the advantage and
safety of commerce, all the sovereigns of Europe have departed from this rigor. And as this custom has
been generally received, he who should act contrary to it, would injure the public faith; for strangers
trusted his subjects only from a firm persuasion, that the general custom would be observed. The state
does not so much as touch the sums which it owes to the enemy. Every where, in case of war, funds
credited to the public are exempt from confiscation, and seizure.' The Legislators of Virginia, who made
the act, which has been pleaded in bar, lay down the doctrine relative to this point, in strong and
unequivocal terms. For, they expressly declare, that the law and usages of nations require, that debts
should not be confiscated. If the enemy should, in the first instance, direct a confiscation of debts,
retaliation might in such case be a proper and justifiable measure. The truth is, that the confiscation of
debts is at once unjust and impolitic; it destroys confidence, violates good faith, and injures the interests
of commerce; it is also unproductive, and in most cases impracticable. Ingenious writers have
endeavoured to defend the doctrine on the ground, that the confiscation of debts weakens the enemy
and enriches ourselves. The first is not true, because remittances are seldom, if ever, made during a
war, and the second generally proves unprofitable, when attempted to be carried into practice. The gain
is, at most, temporary, and inconsiderable; whereas the injury is certain and incalculable, and the
ignominy great and lasting. History furnishes a remarkable instance in support and illustration of the
foregoing remarks. For, in the war that broke out between France and Spain in the year 1684, his
Catholic Majesty endeavoured to seize the effects of the subjects of France in his kingdom; but the
attempt proved [3 U.S. 199, 255] abortive, for not one Spanish agent or factor violated his trust, or
betrayed his French principal or correspondent. If the payments, which have been made into the loan
office, pursuant to the act of Virginia, should be scaled according to a subsequent act of that state, they
would not, it is probable, amount to a very large sum. Other reasons in support of the doctrine have
been assigned, namely, that the confiscation of debts operates as an indemnity for past losses, and a
security against future injuries; but they do not appear to me to be more solid than those already
mentioned. Confiscation of debts is considered a disreputable thing among civilized nations of the
present day; and indeed nothing is more strongly evincive of this truth, than that it has gone into general
dessuetude, and whenever put into practice, provision is made by the treaty, which terminates the war,
for the mutual and complete restoration of contracts and payment of debts. I feel no hesitation in
declaring, that it has always appeared to me to be incompatible with the principles of justice and policy,
that contracts entered into by individuals of different nations, should be violated by their respective
governments in consequence of national quarrels and hostilities. National differences should not affect
private bargains. The confidence, both of an individual and national nature, on which the contracts were
founded, ought to be preserved inviolate. Is not this the language of honesty and honor? Does not the
sentiment correspond with the principles of justice, and the dictates of the moral sense? In short, is it
not the result of right reason and natural equity? The relation, which the parties stood in to each other
at the time of contracting these debts, ought not to pass without notice. The debts were contracted
while the creditors and debtors were subjects of the same king, and children of the same family. They
were made under the sanction of laws common to, and binding on, both. A revolution-war could not,
like other wars, be foreseen or calculated upon. The thing was improbable. No one, at the time that the
debts were contracted, had any idea of a severance or dismemberment of the empire, by which
persons, who had been united under one system of civil polity, should be torn asunder, and become
enemies for a time, and, perhaps, aliens forever. Contracts entered into in such a state of things ought
to be sacredly regarded. Inviolability seems to be attached to them. Considering then the usages of
civilized nations, and the opinion of modern writers, relative to confiscation, and also the circumstances
under which these debts were contracted, we ought to take the expressions in this fourth article in their
most extensive sense. We ought to admit of no comment, that will narrow and restrict their operation
and [3 U.S. 199, 256] import. The construction of a treaty made in favor of such creditors, and for the
restoration and enforcement of pre-existing contracts, ought to be liberal and benign. For these reasons
this clause in the treaty deserves the utmost latitude of exposition. The fourth article embraces all
creditors, extends to all pre-existing debts, removes all lawful impediments, repeals the legislative act
of Virginia, which has been pleaded in bar, and with regard to the creditor annuls every thing done
under it. This article reinstates the parties; the creditor and debtor before the war, are creditor and
debtor since; as they stood then, they stand now. To prevent mistakes, it is to be understood, that my
argument embraces none but lawful impediments within the meaning of the treaty, such as legislative
acts, and payments under them into loan offices and treasuries. An impediment created by law stands
on different ground from an impediment created by the creditor. To conclude: I am of opinion, that the
demurrer ought to have been sustained; and, of course, that the judgment rendered in the court below,
is erroneous; and must be reversed.

Iredell, Justice*.

In delivering my opinion on this important case, I feel myself deeply affected by the awful situation in
which I stand. The uncommon magnitude of the subject, its novelty, the high expectation it has excited,
and the consequences with which a decision may be attended, have all impressed me with their fullest
force. I have trembled left by an ill informed or precipitate opinion of mine, either the honour, the interest,
or the safety of the United States should suffer or [3 U.S. 199, 257] be endangered on the one hand,
or the just rights and proper security of any individual on the other. In endeavouring to form the opinion
I shall now deliver, I am sure the great object of my heart has been to discover the true principles upon
which a decision ought to be given, unbiassed by any other consideration than the most sacred regard
to justice. Happy should I have thought myself, if I could as confidently have relied on a strength of
abilities equal to the greatness of the occasion. The cause has been spoken to, at the bar, with a degree
of ability equal to any occasion. However painfully I may at any time reflect on the inadequacy of my
own talents, I shall as long as I live remember with pleasure and respect the arguments which I have
heard on this case: they have discovered an ingenuity, a depth of investigation, and a power of
reasoning fully equal to any thing I have ever witnessed, and some of them have been adorned with a
splendor of eloquence surpassing what I have ever felt before. Fatigue has given way under its
influence, and the heart has been warmed, while the understanding has been instructed. The action
now before the court is an action of debt, brought by a British creditor against an American debtor, to
recover upon a bond executed before the late war. To this action there are five pleas, substantially as
follow. The 1st, a plea of payment, on which issue is joined, but not now before the court, and which is
to be tried by a jury, in case judgment be given for the Plaintiff upon the legal questions arising on the
other pleas, so as to entitle him to try the issue. The 2nd is a plea of a payment into the treasury of the
State, of part of the debt, under an act of assembly of the 20th of October, 1777. The 3rd. plea is
grounded on two acts of assembly: One of May 1779, under which it is alledged that the debt in question
became forfeited to the State; the other of May 1782, which is relied on as a bar to the recovery. The
former part of the plea I understand to be given up by the defendant's counsel, and certainly with great
propriety, because debts are expressly excepted in the act it refers to. The 4th plea alledges a non-
compliance with the treaty on the part of Great Britain, and, therefore, that the British creditor cannot
now recover a benefit under the same treaty. It also alledges acts of hostility by Great Britain since the
peace, as likewise forming a bar to the recovery of the Plaintiff, who is a British creditor. The 5th plea
is, that this debt was absolutely annulled by the change of government. This also I understand to
have [3 U.S. 199, 258] been given up in the course of the argument, and undoubtedly it is not tenable.
The only pleas, therefore, for us to consider, are the second, part of the third, and the fourth. Every
thing I have to say on that part of the 3rd, not relinquished, admitting the fullest operation of the act of
1782, as intending to affect British creditors themselves, as well as assignees, which does not appear
to me to have formed any part of its object, will appear from my observations on the second plea; and,
therefore, to prevent unnecessary repetition, I shall not consider it separately by itself. It seems proper
to speak of the fourth plea first, because, if that can be maintained, it is altogether immaterial to consider
either of the others. I am clearly of opinion, that the fourth plea is not maintainable. It is grounded on
two allegations. 1st. The breach of the treaty by Great Britain, as alledged in the plea. 2nd. New acts
of hostility on the part of that kingdom. 1. In regard to the first, I consider the law of nations to be decided
as to the following position, viz: 'That if a treaty be broken by one of the contracting parties it becomes
(in the expressive language of the law) not absolutely void, but voidable; and voidable, not at the option
of any individual of the contracting country injured, however much he may be affected by it, but at the
option of the sovereign power of that country, of which such individual is a member'. The authorities, I
think, are full and decisive to that effect. Grotius, b. 2. c. 15. s. 15. ib. b. 3. c. 20. s. 35, 36, 37, 38. 2.
Burl. p. 355. part 4. c. 14. in s. 8. Vattel, b. 4. c. 4. s. 54. The gentlemen for the defendant, taking hold
of some particular expressions, without regarding the whole of these authorities, and considering the
reason of them, have argued, that true, in the present instance (for example) Congress might have
remitted the infraction, but not having done so, the Plaintiff is barred for the present, however he might
be restored to the right, in case the infraction should hereafter be actually remitted. But to me it is very
evident, that such a position is not maintainable, either by the authorities I have recited, or the reason
of the thing. The words of Grotius are pointed and express to show, not that the treaty shall be reputed
broken until a remission is actually pronounced by the injured party, but that it shall not be reputed as
broken, until the injured party shall think proper actually to pronounce it broken; and it is remarkable
that his [3 U.S. 199, 259] words to this effect, are calculated for the very purpose of removing any
doubts which other more general expressions might occasion. His words are: 'When there is treachery
on one side, it is certainly at the choice of the innocent party to let the peace subsist; as Scipio did
formerly after many perfidious actions of the Carthagenians. Because no man, by doing contrary to his
obligation, can thereby discharge himself from it. For though it is expressed, that by such a fact the
peace shall be reputed as broken, yet this clause is to be understood only in favour of the innocent, if
he thinks fit to make use of it.' Grotius. b. 3. c. 20. s. 38. The whole clause of Vattel is substantially to
the same purpose; and, therefore, where in one part of the clause he says, 'the offended party may
remit the infraction committed,' this must be understood, to make the whole consistent, a remission not
arising from an express declaration, but from a tacit acquiescence in the breach. Otherwise, what
becomes of the words? 'but if he chooses not to come to a rupture, the 'treaty remains valid and
obligatory.' The treaty, therefore, must remain valid and obligatory, until the power, authorised to come
to a rupture, does come to it. The same observations apply to Burlamaqui, who expresses himself more
generally, but states substantially the same doctrine. His expression is, 'it is at the choice of the innocent
'party to let the peace subsist,' which certainly does not require a positive declaration that it shall subsist.
This doctrine appears to me to be grounded on the highest reason. It is undoubtedly true, that each
nation is considered as a moral person, and the welfare and interest of all the individuals of that nation,
so far as they may be affected by its concerns with foreign nations, are in each country entrusted to
some particular power authorised to negociate with them, or to speak the sense of the nation on any
emergency. When any individual, therefore, of any nation, has cause of complaint against another
nation, or any individual of it, not immediately amenable to the authority of his own, he may complain
to that power in his own nation, which is entrusted with the sovereignty of it as to foreign negociations,
and he will be entitled to all the redress which the nature of his case requires, and the situation of his
own country will enable him to obtain. The people of the United States, in their present Constitution,
have devolved on the President and Senate, the power of making treaties; and upon Congress, the
power of declaring war. To one or other of these powers, in case of an infraction of a treaty that has
been entered into with the United States, I apprehend application is to be made. [3 U.S. 199,
260] Upon such an application various important considerations would necessarily occur. 1. Whether
the treaty was first violated on the part of the United States, or on that of the other contracting power?
2. Whether, if first violated by the latter, it was a violation in an important or an inconsiderable article;
whether the violation was by design or accident, or owing to unforeseen obstacles; whether, in short, it
was wholly or partially without excuse? 3. Whether, admitting it was either, it was a matter for which
compensation could be made, or otherwise? 4. Whether the injury was of such a nature as to admit of
negociation, or to require immediate satisfaction, peremptorily and without delay? 5. Whether, if the
circumstances in all other cases justified it, it was adviseable, upon an extensive view and wise
estimation of all the relative circumstances of the United States, to declare the treaty broken, and of
course void: for though the party first breaking the treaty cannot make it absolutely void, but it is only
voidable at the election of the injured party, yet when that election is made, by declaring the treaty void,
I conceive it is totally so as to both parties, and that all rights enjoyed under the treaty are absolutely
annulled, as if no stipulation had been made for them? These are considerations of policy,
considerations of extreme magnitude, and certainly entirely incompetent to the examination and
decision of a Court of Justice. Miserable and disgraceful indeed, would be the situation of the citizens
of the United States, if they were obliged to comply with a treaty on their part, and had no means of
redress for a non-compliance by the other contracting power. But they have, and the law of nations
points out the remedy. The remedy depends on the discretion and sense of duty of their own
government. This plea is therefore defective, so far as concerns the breach of the treaty, not because
this court hath no cognizance of a breach of treaty, but because by the law of nations, we have no
authority upon any information or concessions of any individuals, to consider or declare it broken; but
our judgment must be grounded on the solemn declaration of Congress alone, (to whom, I conceive,
the authority is entrusted) given for the very purpose of vacating the treaty on the principles I have
stated. The paper transmitted by order of Congress, to the Executive of Virginia, on the subject of a
violation complained of on the part of the British, certainly cannot amount to so much, especially as
there is another paper of theirs in the year 1787, transmitted to the different States, complaining of
violations [3 U.S. 199, 261] on our part. They have pronounced no solemn decision, which committed
the first infraction; much less have they declared that in consequence of the infraction on the part of
the British, they chose that the treaty should be annulled. But it is said that a declaration by Congress,
that the treaty was broken by Great Britain, would be exercising a judicial power, which by the
Constitution in all cases of treaties is devolved on the Judges. Surely such a thing was never in the
contemplation of the Constitution. If it was, a method is still wanting by which it could be executed; for,
if we are to declare, whether Great Britain or the United States, have violated a treaty, we ought to have
some way of bringing both the parties before us. The method contended for by the defendant's counsel
is very ill suited to another part of their doctrine, which is certainly right, that a nation is a moral person,
and that the act of a sovereign power to whom its foreign concerns are entrusted, is the act of every
individual of that nation, because he represents the whole. But in this case, the King of Great Britain
does not act on behalf of the plaintiff, his subject, and the United States on behalf of the defendants,
their citizens; but the plaintiff is alledged to represent the sovereignty of the United States, a dignity for
aught I know, of which they may be respectively worthy, but which certainly does not either politically
or judicially belong to them. The Judiciary is undoubtedly to determine in all cases in law and equity,
coming before them concerning treaties. The subject of treaties, Gentlemen truly say, is to be
determined by the law of nations. It is a part of the law of nations, that if a treaty be violated by one
party, it is at the option of the other party, if innocent, to declare, in consequence of the breach, that the
treaty is void. If Congress, therefore, (who, I conceive, alone have such authority under our
Government) shall make such a declaration, in any case like the present, I shall deem it my duty to
regard the treaty as void, and then to forbear any share in executing it as a Judge. But the same law of
nations tells me, that until that declaration be made, I must regard it (in the language of the law) valid
and obligatory. The admission of the fact, stated in the plea, cannot be taken as an admission that the
fact is strictly true, because the plaintiff had no way of avoiding the plea but by a demurrer, whether it
was true or not. If it was well pleaded, it is an admission of the entire truth, but not otherwise. For the
reasons I have given, it is clear to me that it is not well pleaded. [3 U.S. 199, 262] 2. In regard to the
second branch of this plea, new acts of hostility, if meant as constituting a breach, (which I don't
understand it to be) the observations I have already made will equally apply to this part of the plea. If
meant as a proof, that a war in fact, tho' not in name subsists, and therefore that the plaintiff is an alien
enemy, the same observations will apply still more forcibly. We must receive a declaration, that we are
in a state of war, from that part of the sovereignty of the union to which that important subject is
entrusted. We certainly want some better information of the fact than we have at present. However, this
point seems so clear, that the defendant's counsel very faintly attempted to maintain this idea of the
case. I conclude, therefore, for these reasons, that there is nothing in the fourth plea which is a bar to
the plaintiff's action. The great difficulty of the case arises from the second plea. This is the only part of
the case, about which I have, from the beginning, entertained any doubt. And I must confess, I have
had very great doubts, indeed, on this subject. My opinion has varied more than once in regard to it. I
have endeavoured to come to a conclusion by analysing it in all its parts; and the result of my
investigation has been, according to the best judgment I am capable of forming, upon the most
deliberate examination, that the plea is supportable. My reasons for this opinion, I must give at
considerable length, in order to show it is not a rash one, and that Gentlemen may be enabled in the
future progress of this case, more easily to detect my errors, if I should have committed any. I will divide
the consideration of the plea into two points: 1. Whether the plea would have been a bar, if this case
had stood independently of the treaty? 2. Whether the treaty destroys the operation of the plea? In
considering the first point, I shall, for the greater perspicuity, consider it under the following heads: 1.
Whether the Legislature of this State had a right, agreeable to the law of nations, to confiscate the debt
in question? 2. Whether, admitting that the Legislature had not a right, agreeably to the law of nations,
to confiscate the debt, yet if they in fact did so, it would not, while it remained unrepealed by any
subsequent, sufficient authority, have been valid and obligatory within the limits of the State, so as to
bar any suit for the recovery of the debt? 3. Whether, if it shall be considered that the Legislature did
not wholly confiscate the debt, so as totally to extinguish all right in the creditor, (as I apprehend they
clearly did not) but only sequester it under the peculiar circumstances stated in the act, the payment in
question, under the authority of the act, did not, at that time at least, wholly exonerate the debtor? [3
U.S. 199, 263] 1. It being clear that there was no absolute confiscation in this case, I shall not give a
conclusive opinion upon the right; but as I think it highly probable such a right did exist, some
observations on that subject will naturally and properly lead to those upon which my opinion, as to the
validity of the payments, is ultimately founded. For this reason, and this reason only, I discuss the
present question.

Whatever doubt might have been entertained, by reasoning on the particular examples of Grotius and
Puffendorf, Bynkershoek, (who, I believe, is alone, a very great authority) is full and decisive in the very
point as to a general right of confiscating debts of an enemy. His doctrine I take to be this, that the law
of nations authorises it, unless in former treaties between the belligerent powers, there be particular
stipulations to the contrary. Vattel recognises the general right, but states a prevailing custom in Europe
to the contrary; in consequence of which he says, 'As this custom has been generally observed, he
who would act contrary to it would injure the public faith; for strangers trusted his subjects only from a
firm persuasion that the general custom would be observed.' Vattel mentions the fact, but does not
state the origin of the fact; which, I think, it is not improbable, may have arisen in consequence of
particular stipulations, as mentioned by Bynkershoek; very few of the civilized nations of Europe, not
having treaties with each other.

Whether this customary law (admitting the principle to prevail by custom only) was binding on the
American States, during the late war, in respect to Great Britain at least, may be a question of
considerable doubt. There were particular circumstances in the relative situation of the two countries,
which might possibly exempt this from the force of such a custom, could it be supposed that when this
country became an independent nation, this customary law immediately attached upon it. However this
country might have been considered bound to observe such a law in regard to any nation recognizing
its independence, had we been unfortunately at war with such, and who observed it on her part, (for,
undoubtedly, a breach on one side would justify a non-observance by the other) it did not necessarily
follow, that the people of this country were bound to observe it to a nation, which not only did not
recognize, but fought to destroy their very existence as an independent people, considering them in no
other light than as traitors, whose lives and fortunes were forfeited to the law. The people of this country
literally fought pro aris & focis; and, therefore, means of defence, which, when inferior objects were in
view, might not be strictly justifiable, might in such an extremity become so, on the great principle, on
which the laws of war are [3 U.S. 199, 264] founded, self preservation; an object that may be attained
by any means, not inconsistent with the eternal and immutable rules of moral obligation.

The principles of the common law of England, as appears from a case I showed to the bar, (that in Sir
Thomas Parker's Reports, p. 267. the Attorney General against Weeden and Shales) do undoubtedly
recognize the forfeiture of a chose in action due to an enemy. At the utmost it only requires, that an
inquisition should be completed during the war, so as, by ascertaining the fact, fully to establish the title
of the crown. I can see no reason why that principle of the common law should not obtain here. If so,
then independent of any act of legislation whatever, an inquisition completed during the war, finding
the fact, would have vested the title to the debt in question absolutely in the State, unless this debt can
be distinguished from any other chose in action. Such a distinction has been attempted: 1st, Because
this debt was due before the war. 2nd, Because the State had not possession of the bond. To these
objections, I think, easy answers may be given. 1st, The right acquired by war, (detached from custom,
which I am not now considering, or any express stipulation, if there be such) depends on the power of
seizing the enemy's effects. It is not grounded on any antecedent claim of property, but on the contrary,
the property is admitted to be the enemy's, in the very act of seizing it. Its sole justification is, that being
forced into a state of hostility, by an injury for which no satisfaction could be obtained in a peaceable
manner, reprisals may be made use of, as a means to compel justice to be done, or to enable the
injured party to obtain satisfaction for itself. Such a power, from its nature (being grounded on necessity
only) seems incapable of limitation by any general rule, and if conscientiously used (of which each
nation must judge for itself) the principle applies as well to property, which was in the country before
the war began, as to any other which may be accident come into its possession. The same objection
would apply to the seizure of any other property of an enemy, which had been in the country before the
war began, as of an incorporeal right. The first resolution in the case I cited is, as to choses in action
generally, tho' the chose in action there in question, was, in fact, one which had accrued during the
war. 2nd, The objection from the State not having possession of the bond, (though countenanced by
one or two writers) I think, is also, susceptible of a satisfactory answer. The bond does not create the
debt, but is only evidence of it. Possession of it alone can give no right. A robber, or an individual
coming to the possession of it by accident, acquires no more title to the money than he had before. The
law is so even as to promissory notes payable to bearer, if the fact can be [3 U.S. 199, 265] made to
appear. If a bond be lost, equity has long since afforded a remedy. In a modern case in a court of law,
a profert of a deed has been dispensed with, upon a special declaration stating the loss of it*. It was
while the possession and the right were confounded, that this objection was thought of weight. It is
observable also, that it would create an idle and a trifling distinction between debts due by specialty,
and simple contract debts, a distinction that might be supported by ingenuity, but certainly not by
reason. And it would found harsh, to say that simple contract debts should be forfeitable, if the
witnesses were in the country, but otherwise not. Now, if the forfeiture of the debt in question, could
have been effected at common law, by an inquisition completed during the war, I can see no reason
why the Legislature could not, with equal propriety as to the right, have effected the same object
substantially in any other mode. The proceeding, in each case, must be ex parte, and the object affected
can be conclusively bound by neither, if his case did not come within the principles of the law. This I
argue, upon a supposition that the customary law of nations, was not binding here, at least in this
instance. That, however, is a point of some delicacy, and not necessary for me now to determine,
because, 2nd, I am of opinion, that admitting that the Legislature had not strictly a right, agreeably to
the law of nations, to confiscate the debt in question; yet, if they in fact did so, it would while it remained
unimpeached by any subsequent sufficient authority, have been valid and obligatory within the limits of
the State, so as to bar any suit for the recovery of the debt.

In this opinion I have the misfortune to differ from a very high authority*, for which I have the greatest
respect. But however painful it may be, to differ from gentlemen, whose superior abilities and learning
I readily acknowledge, I am under the indispensable necessity of judging according to the best lights of
my own understanding, assisted by all the information I can acquire. I confess, therefore, that I agree
entirely with the Defendant's counsel in thinking, that the acts of the Legislature of the State, in regard
to the subject in question, so far as they were conformable to the Constitution of the State, and not in
violation of any article of the confederation (where that was concerned) were absolutely binding de
facto, and that if, in respect to foreign nations, or any individual belonging to them, they were not strictly
warranted by the law of nations, which ought [3 U.S. 199, 266] to have been their guide, the acts were
not for that reason void, but the State was answerable to the United States, for a violation of the law of
nations, which the nation injured might complain of to the sovereignty of the Union. There is no doubt
that an act of Parliament in Great Britain, would bind in its own country in every possible case in which
the Legislature thought proper to act. Blackstone** is precise as to that point, even in cases manifestly
unjust, if the words of the law are plain and unequivocal. In this country, thank God, a less arbitrary
principle prevails. The power of the Legislatures is limited; of the State Legislatures by their own State
Constitutions, and that of the United States; of the Legislature of the Union by the Constitution of the
Union. Beyond these limitations, I have no doubt, their acts are void, because they are not warranted
by the authority given. But within them, I think, they are in all cases obligatory in the country subject to
their own immediate jurisdiction, because in such cases the Legislatures only exercise a discretion
expressly confided to them by the constitution of their country, and for the abuse of which, (if it should
be abused) they alone are accountable. It is a discretion no more controlable (as I conceive) by a Court
of Justice, than a judicial determination is by them, neither department having any right to encroach on
the exclusive province of the other, in order to rectify any error in principle, which it may suppose the
other has committed. It is sufficient for each to take care that it commits no error of its own. As to a
distinction between a State Court and this Court, in this respect, I do, for my part, disclaim, according
to my present sentiments, any authority to give a different decision in any case whatsoever from such
as a State Court would be competent to give under the same circumstances. I have no conception that
this court is in the nature of a foreign jurisdiction. The thing itself would be as improper as it would be
odious, in cases where acts of the State have a concurrent jurisdiction with it.

With regard to the exception I speak of, no one has suggested, that the act of October, 1777, was in
any manner inconsistent with the Constitution of the state; and at that time the articles of Confederation
were not in force; but if they had been, I think there is no colour for alledging any inconsistency with
them, since Congress could have passed no act on this subject, but if they had wished for an act, must
have recommended to the State Legislatures to pass it. And the very nature of a recommendation
implies, that the party recommending cannot, but the party to whom the recommendation is made, can
do the thing recommended. [3 U.S. 199, 267] The third question under the present head, that I
proposed, was this: 'Whether, if it shall be considered that the Legislature did not absolutely confiscate
the debt, so as totally to extinguish all right in the creditor, (as I apprehend they clearly did not) but only
sequestered it under the peculiar circumstances stated in the act; the payment in question, under the
authority of the act, did not, at that time at least, wholly exonerate the debtor.'

The words of the enacting clause concerning this subject, are as follow: 'That it shall and may be lawful
for any citizen of this commonwealth, owing money to a subject of Great Britain, to pay the same, or
any part thereof, from time to time, as he shall think fit, into the said loan office, taking thereout a
certificate for the said sum, in the name of the creditor, with an indorsement under the hand of the
commissioner of the said office, expressing the name of the payer, and shall deliver such certificate to
the Governor and Council, whose receipt shall discharge him from so much of the debt. And the
Governor and Council shall in like manner say before the General Assembly once in every year, an
account of these certificates, specifying the names of the persons, by and for whom they were paid,
and shall see to the safekeeping of the same, subject to the future direction of the Legislature.'

We are too apt, in estimating a law passed at a remote period, to combine in our consideration, all the
subsequent events which have had an influence upon it, instead of confining ourselves (which we ought
to do) to the existing circumstances at the time of its passing. Let us, however, recollect, that at this
period no British creditor could institute a suit for the recovery of his debt, as the war constituted him
an alien enemy, and therefore his remedy stood suspended at common law, so that he ran the risque
of the entire loss of every debt, where his debtor proved insolvent during the war. Consequently, it
would, in his own estimation, have been doing him a considerable service, that the state should
authorise a receipt on his behalf, had there been no other currency in circulation than gold or silver. It
would have been placing him in a state of security, greater than he had any reason to expect. The
extremity of the public situation, rendered paper money unavoidable, but this was an evil to which all
American as well as British creditors were liable, and the former (as we all know) were compelled, upon
a tender, under pain of being deemed enemies of their country, to receive it at its nominal value. It was
natural (and perhaps) not altogether, if at all, unjust, if a man had 100 due to him from B. and he himself
owed C. 100, and B. paid him the 100, though in depreciated [3 U.S. 199, 268] money, that he should
immediately carry it to his creditor. Many, I have no doubt, paid their creditors upon these plain grounds
of retribution, though others undoubtedly (for no government can make all men honest) took most
scandalous advantages of depreciation in its advanced periods. When this law was passed, the
depreciation, I believe, was little felt, and not at all acknowledged. De minimis non curat lex, is an old
law maxim. I may parody it on this occasion, by saying De minimis non curat libertas. When life, liberty,
property, every thing dear to man was at stake, few could have coldness of heart enough to watch the
then scarcely perceptible gradation in the value of money. In this situation the Legislature of the state
passed the law in question. It did all that the then situation of affairs would admit of, even for the benefit
of the British creditors themselves, and it put it in the power of American creditors, who were compelled
to receive the existing currency, to pay their own debts with it. The depositing of money in the loan
office, was at that time by many, even in America itself, thought an eligible method of securing it, and
with some foreigners, it was a favorite object of speculation. I know, myself, that the proceeds of some
very valuable cargoes were ordered to be so applied, and probably there were such instances of which
I knew nothing. The increased difficulties of the American war, in a great degree, disappointed the
intentions of the original law, but still, British and American creditors were placed on the same footing,
so far as it was in the power of the Legislature to effect it.

I thought it proper to say thus much, as introductory to the observations I shall make on the legal
operation of those payments.

1. If the state de jure, according to the law of nations (which I strongly incline to think) had a right wholly
to confiscate this debt, they had undoubtedly a right to proceed a partial way towards it by receiving
the money and discharging the debtor, substituting itself in his place. We are to be governed by things,
and not names, and, consequently, if the state had a right to say to a debtor 'We confiscate the right of
your creditor, and you must pay your debt to us, and not to him,' they had a right to say 'We do not
chuse for the present, absolutely to confiscate this debt, although we have the power so to do, but if
you will pay the money to us, you shall be as completely discharged as if we did.' In this point of view,
I think there can be no doubt but that a discharge would, under such circumstances, have as completely
extinguished the right of the creditor as to the debtor, as if, in case no war had intervened, and therefore
no right had accrued under it to the states, the debtor had actually paid the money [3 U.S. 199, 269] to
the order of the creditor, and received a discharge from himself.

2. For the reasons I have before given, I think a confiscation, either whole or partial, or any less exercise
of that power de facto, though not de jure, would in this state have been perfectly binding, and in legal
contemplation as effectual to bar a recovery, as if the law of nations had been strictly and
unquestionably pursued.

3. I believe there can be no doubt, but that according to the law of nations, even on the most modern
notions of it, a sequestration merely for the purpose of recovering the debts, and preventing the
remittance of them to the enemy, and thereby strengthening him, and weakening the government,
would be allowable, and if so, surely it follows, as a matter of course, ( perhaps it would follow without
a solemn declaration) that when, in virtue of any such act, the money was paid to the government, the
debtor was wholly discharged, and the government, if it thought proper, not to proceed to confiscation
afterwards, became itself liable.

The case cited from the Law of Evidence,* I think is an authority substantially in point, to show the
complete discharge of the debtor.

'In debt upon a lease, the Defendant pleaded payment, and in evidence showed, he paid it to
sequestrators of the commonwealth, the Plaintiff being a delinquent; and it was ruled this was good
payment to prove the issue, which was a payment to the Plaintiff himself.' Clayton, 129. Anonymous
Law of Evidence, (Edit of 1744) p. 196. c. 9. c. 11.

This case is certainly very strong, for it was not deemed necessary to plead it in bar, but it was admitted
in evidence, upon a plea that he paid the money to the Plaintiff himself. It does not appear whether this
action was tried under the commonwealth, or after the restoration. If under the former, it is more parallel
to the present action. If it was tried after the restoration, it is a still stronger case, for it showed that
courts of justice thought themselves bound to protect individuals, who acted under laws of a
government they deemed an usurpation, and on all occasions treated with contempt.k Besides an
objection, which I shall notice presently, I can imagine but one real difference between that case and
the one before us; and that is, that in England the payment was compelled, here [3 U.S. 199, 270] it
was voluntary. I once thought that circumstance of weight, but on reflection, I consider the public faith
equally pledged in one case as in the other; that the authority exercised in both is the same, and that it
not only would be unjust in itself, but of dangerous example, to tell men that they should be protected
under a compulsory obedience to government, but not upon a cheerful submission to it.

4. My observations as to the paper money, which the necessities of this country unfortunately
constrained us to use so long, had no other tendency than to show the circumstances of the fact as
they really existed. As a judge, I conceive myself bound to say, that that makes no difference as to the
right. The competency of such acts at that time was unquestionable. Their justice depended on the
degree of necessity which gave rise to them. A payment in paper money, then a legal tender, I must
consider as complete and effectual a payment, at that time, as payment in gold or silver. Such was the
law of the country! A law which severe necessity dictated! and by which, in the course of the war, in
which many sacrifices became unavoidable, many thousand American citizens, as well as many British
merchants, suffered. It is the lot of our nature to experience many evils for which we can find no remedy,
and therefore nothing can be more fallacious than in any thing of a general nature, to expect perfect
exactness.

For these reasons, I am clearly of opinion, that under the act of sequestration, and the payment and
discharge, the discharge will be a complete bar in the present case, unless there be something in the
Treaty of Peace to revive the right of the creditor against the defendant, so as to disable the latter from
availing himself of the payment into the treasury, in bar to the present action.

The operation of that Treaty comes, therefore, now to be considered. None can reverence the obligation
of treaties more than I do. The peace of mankind, the honour of the human race, the welfare, perhaps
the being of future generations, must in no inconsiderable degree depend on the sacred observance of
national conventions. If ever any people on account of the importance of a treaty, were under additional
obligations to observe it, the people of the United States surely are to observe the Treaty in question.
It gave peace to our country, after a war attended with many calamities, and, in some of its periods,
presenting a most melancholy prospect. It insured, so far as peace could insure them, the freest forms
of government, and the greatest share of individual liberty, of which, perhaps, the world had seen any
example. It presented boundless views of future happiness and greatness, which almost overpower the
imagination, and which, I trust, will not be altogether [3 U.S. 199, 271] unrealized: The means are in
our power; wisdom and virtue are alone required to avail ourselves of them. Such was the peace which
was procured by the Treaty now in question a treaty which, when it shall be fully executed in all its
parts, on both sides, future generations will look up to with gratitude and admiration, and with no small
degree of fervour towards those who had an active share in procuring it. In proceeding to examine the
treaty with these sentiments, it may well be imagined I do it with a reverential and sacred awe, left by
any misconstruction of mine, I should weaken any one of its provisions. The question now is, whether,
under this treaty, the payment into the Treasury is a bar to so much of the Plaintiff's claim, as
comprehends money to that amount? I shall examine this question under two divisions: 1st. Whether it
would have been a bar, as the law existed, after the ratification of the treaty, and previous to the passing
of the present Constitution of the United States, even if the words of the treaty must be construed to
comprehend such a case. 2nd. Whether, under that Constitution, it can now be considered as a bar.
My opinion, I confess, as to the first question, is, that if the treaty had plainly comprehended such cases,
the Plaintiff could not have recovered in a Court of Justice in this State, as the law stood, previous to
the ratification of the present Constitution of the United States. I feel, as I ought to do, great diffidence,
when I am under the necessity, in the execution of my duty as a Judge, of differing from the opinions
of those entitled from superior talents, and high authority, to my utmost respect. I am compelled to do
so in the present instance, but I shall, at the same time, assign my reasons for my opinion, and if, in
the future course of this great cause, I can be convinced that in this, or in any other, instance, I have
committed an error, I shall most cheerfully acknowledge it. The opinion I have long entertained, and
still do entertain, in regard to the operation of the fourth article is, that the stipulation in favour of
creditors, so as to enable them to bring suits, and recover the full value of their debts, could not at that
time be carried into effect in any other manner, than by a repeal of the statutes of the different States,
constituting the impediments to their recovery, and the passing of such other acts as might be
necessary to give the recovery entire efficacy, in execution of the treaty. I consider a treaty, (speaking
generally, independent of the particular provisions on the subject, in our present Constitution, [3 U.S.
199, 272] the effect of which I shall afterwards observe upon) as a solemn promise by the whole
nation, that such and such things shall be done, or that such and such rights shall be enjoyed. I think
the distinction taken by the Plaintiff's counsel as to stipulations in the treaty, executed or executory, will
enable me to illustrate my meaning, by considering various stipulations in the treaty in question. 1st. I
will consider what may be deemed executed articles. In this class I would place, the acknowledgement
of independence in the first article; the permission to fish on the Banks in the third; the
acknowledgement of the right to navigate the Mississippi in the eighth. These I call executed, because,
from the nature of them, they require no further act to be done, 2nd. The executory (so far as they
concern our part in the execution) I would place in three classes. Those which concern either, 1st, the
Legislative Authority. 2nd. The Executive. 3rd. The Judicial. The fourth article in question, I consider to
be a provision, the purpose of which could only be effected by the Legislative authority; because when
a nation promises to do a thing, it is to be understood, that this promise is to be carried into execution,
in the manner which the Constitution of that nation prescribes. When, therefore, a treaty stipulates for
any thing of a legislative nature, the manner of giving effect to this stipulation is by that power which
possesses the Legislative authority, and which consequently is authorized to prescribe laws to the
people for their obedience, passing such laws as the public obligation requires. Laws are always seen,
and through that medium people know what they have to do. Treaties are not always seen. Some
articles (being what are called secret articles) the public never see. The present Constitution of the
United States, affords the first instance of any government, which, by saying, treaties should be the
supreme law of the land, made it indispensable that they should be published for the information of all.
At the same time I admit, that a treaty, when executed pursuant to full power, is valid and obligatory, in
point of moral obligation, on all, as well on the Legislative, Executive, and Judicial Departments, (so far
as the authority of either extends, which in regard to the last, must, in this respect, be very limited) as
on every individual of the nation, unconnected officially with either; because it is a promise in effect by
the whole nation to another nation, and if not in fact complied with, unless there be valid reasons for
non- compliance, the public faith is violated. I have mentioned this great article which concerns the
Legislative [3 U.S. 199, 273] department: Let me now, by way of further illustration, consider one which
concerns the Executive.
It is stipulated in one part of this treaty, 'That all prisoners on both sides shall be set at liberty.' I very
much doubt, whether the Commander in Chief, without orders from Congress (then possessing the
supreme executive authority of the Union) could have been justified in releasing such prisoners as he
had then in custody, after the ratification. Certainly no inferior officer, in whose actual care they were,
could, without an order directly or indirectly from the Commander in Chief: And yet, I can see no reason,
if a treaty is to be considered as operating de facto, by superior authority, notwithstanding any
impediment arising from laws then in being, why the rigour of the treaty, which in that instance is said
to be uncontroulable, should not be so in every other. If Legislative authority is superseded, why not
Executive? Surely the former is not less sacred than the latter.

In like manner as to the judicial. It is stipulated in the sixth article, 'That there shall be no future
confiscations made, nor any prosecutions commenced against any person or persons, for, or by reason
of any part, which he or they may have taken in the present war: and that no person shall, on that
account, suffer any future loss or damage, either in his person, liberty, or property; and that those who
may be in confinement on such charges, at the time of the ratification of the treaty in America, shall be
immediately set at liberty, and the prosecutions so commenced, be discontinued.' I apprehend this
article, so far as it respected the release of prisoners confined, could only be executed by an order from
the Judges of the Court, having judicial authority, in the cases in question, in consequence either of an
actual alteration in the law, by the Legislature, in conformity to the treaty, (where that was necessary);
or, of a particular pardon by the Executive; and that if a Jailor, merely because the treaty was ratified,
and he found this article in it, had set all such prisoners at liberty, he would have been guilty of an
escape.

This reasoning, in my opinion, derives considerable weight from the practice in Great Britain.

The King of Great Britain certainly represents the sovereignty of the whole nation, as to foreign
negociations, as completely as the Congress of the United States ever represented the sovereignty of
the Union, in that particular. His power, as to declaring war and making peace, is as unlimited as the
respective authorities for those purposes in the United States. The whole nation of Great Britain speaks
as effectually, and as completely through him, as all the people of the United States can now speak
through Congress, as to a declaration of [3 U.S. 199, 274] war, or through the President and Senate
as to making peace; and of course, as they ever did through Congress, under the old articles of
confederation, the power certainly not being lessened. The law of nations equally applies to his treaties
on behalf of Great Britain, as it can apply to any treaty made on behalf of the United States. Yet, I
believe it is an invariable practice in that country, when the King makes any stipulation of a legislative
nature, that it is carried into effect by an act of Parliament. The Parliament is considered as bound,
upon a principle of moral obligation, to preserve the public faith, pledged by the treaty, by passing such
laws as its obligation requires; but until such laws are passed, the system of law, entitled to actual
obedience, remains de facto, as before. I doubt not, if my time had admitted of a full search, and I could
have had access to the proper books for information, that I could find many instances of this. I will,
however, mention one, which I have been able to procure here. It is a transaction of this nature, so late
as the commercial treaty between Great Britain and France, in 1786. The information I derive is from
the Annual Registers of 1786 and 1787, which I suppose, as to this point, are correct.

One article of the treaty was in these words:

'The wines of France, imported directly from France to Great Britain, shall, in no case, pay any higher
duties than those which the wines of Portugal now pay.'
This treaty was signed at Versailles, the 26th of September, 1786.

On the 24th of January, 1787, the King met his Parliament, and among other things, informed the two
houses, 'That he had concluded a treaty of commerce with the French King, and had ordered a copy
of it to be laid before them. He recommended, as the first object of their deliberations, the necessary
measures for carrying it into effect; and expressed his trust, that they would find the provisions,
contained in it, to be calculated for the encouragement of industry, and the extension of lawful
commerce in both countries; and by promoting a beneficial intercourse between their respective
inhabitants, likely to give additional permanency to the blessings of peace.'

On the 15th of February, the House of Commons, being in a committee of the whole house, Mr. Pitt,
the principal Minister of the Crown, moved the following resolution:
'That the wines of France be imported into this country upon as low duties, as the present duties paid
on the importation of Portugal wines.'

I have not had time to examine them all, but, I doubt not, it will be found, on inspection, that there was
not a single provision [3 U.S. 199, 275] in the treaty, inconsistent with former parliamentary
regulations, but Parliament acted upon it by a new law, calculated to give it effect.

The following quotation, (which is a literal one) I think, is very much to the purpose:

'On the Monday following, the report of the committee, upon the commercial treaty, was brought up,
and, on the usual motion being made, that the house do agree to the same, notice was taken of the
omission of the mention of Ireland, both in the treaty and the Tariff; and, it was asked, whether or no
she was understood to be included in it? To this question Mr. Pitt replied, That Ireland was undoubtedly
entitled to all the benefits of the treaty; but it was entirely at her own option, whether she would choose
to avail herself of those advantages; for it was only to be done by her passing such laws as should put
the Tariff on the same footing in that country as it was stipulated should be done in this. Had the
adoption of the treaty by Ireland, been a stipulation necessary to be performed before it could be finally
concluded on in this country, then this country would have been deprived of all the benefits resulting
from it in the event of Ireland's refusal.'

Now it is observable, that in speaking of this Tariff, in the treaty, the King of Great Britain does not
promise, that the Parliament shall pass laws to such an effect; but the language is thus:

'The two high contracting parties have thought proper to settle the duties on certain goods and
merchandises, in order to fix invariably, the footing on which the trade therein shall be established
between the two nations. In consequence of which, they have agreed upon the following Tariff, etc.'
viz.
In another part, the King of Great Britain says,

'His Britannic Majesty reserves the right of countervailing by additional duties on the undermentioned
merchandises, the internal duties actually imposed upon the manufactures, or the import duties which
are charged on the raw materials; namely, on all linens or cottons, stained or painted, on beer, glass-
ware, plate-glass, and iron.'

Here is no mention of the Parliament, and yet, no man living will say that a bare proclamation of the
King, upon the ground of the treaty, would be an authority for the levying of any duties whatever; but it
must be done in the constitutional mode, by act of parliament, which affords an additional proof, that
where any thing of a legislative nature is in contemplation, it is constantly implied and understood,
(without express words) that it can alone be effected by the medium of the legislative authority. [3 U.S.
199, 276] That this practice I have noticed is not an occasional one, but has been constantly observed,
I think is highly probable from this circumstance; that if treaties were considered in that country as ipso
facto repealing all laws inconsistent with them, and imposing new ones, they ought to be bound up with
the statutes at large, (which they never have been) otherwise the publication would be at least
incomplete, if not deceitful.

These examples from Great Britain I consider of very high authority, as they are taken from a kingdom
equally bound by the law of nations as we are; possessing a mixed form of government as we do; and,
so far as common principles of legislation are concerned, being the very country from which we derive
the rudiments of our legal ideas.

But I must admit that there is also a very high authority, and to which we naturally should be more
partial, against this construction. It is the authority of the Congress of the United States in the year
1787. It is an authority derived from an unanimous opinion of that truly respectable body, conveyed in
a circular letter from Congress to the different States on this very subject. I bow with proper deference
to that great authority: But I should be unworthy of the high station I hold, if I did not speak my real
sentiments as a judge, uninfluenced by any authority whatsoever. It is certain, that in this particular,
Congress were not exercising a judicial power; and, therefore, the opinion is not conclusive on any
court of justice. I feel, however some consolation in differing from an opinion for which so much respect
must, and ought to be entertained, by reflecting that though this was the unanimous opinion of
Congress, it was not the unanimous opinion of the people of the United States. So far from it, that I
believe no suit was ever maintained in any court in the United States, merely on the footing of the treaty
when an act of the legislature stood in the way. It was to remove the obstacle arising from such an
opinion, that Congress recommended the repeal of all acts inconsistent with the due execution of the
treaty. And I must with due submission say, that in my opinion without such a repeal, no British creditor
could have maintained a suit in virtue of the treaty, where any legislative impediment existed, until the
present constitution of the United States was formed.

2nd. The article in the constitution concerning treaties I have always considered, and do now consider,
was in consequence of the conflict of opinions I have mentioned on the subject of the treaty in question.
It was found in this instance, as in many others, that when thirteen different legislatures were necessary
to act in unison on many occasions, it was in vain to expect that they would always agree to act as
Congress might think it their duty to require. Requisitions formerly [3 U.S. 199, 277] were made
binding in point of moral obligation, (so far as the amount of money was concerned, of which Congress
was the constitutional judge,) but the right and the power being separated, it was found often
impracticable to make them act in conjunction. To obviate this difficulty, which every one knows had
been the means of greatly distressing the union, and injuring its public credit, a power was given to the
Representatives of the whole union to raise taxes by their own authority for the good of the whole.
Similar embarrassments had been found about the treaty. This was binding in moral obligation, but
could not be constitutionally carried into effect (at least in the opinion of many,) so far as acts of
legislation then in being constituted an impediment, but by a repeal. The extreme inconveniencies felt
from such a system dictated the remedy which the constitution has now provided, 'that all treaties made
or which shall be made under the authority of the United States, shall be the supreme law of the land;
and that the judges in every State shall be bound thereby, any thing in the constitution or laws of any
State to the contrary notwithstanding.' Under this Constitution therefore, so far as a treaty
constitutionally is binding, upon principles of moral obligation, it is also by the vigour of its own authority
to be executed in fact. It would not otherwise be the supreme law in the new sense provided for, and it
was so before in a moral sense.

The provision extends to subsisting as well as to future treaties. I consider, therefore, that when this
constitution was ratified, the case as to the treaty in question stood upon the same footing, as if every
act constituting an impediment to a creditor's recovery had been expressly repealed, and any further
act passed, which the public obligation had before required, if a repeal alone would not have been
sufficient.

Before I go to the consideration of the words of the treaty itself, I think it material to say a few words as
to the operation which an actual repeal would have had.

I believe no one will doubt, that every thing done under the act while in existence, so far as private
rights at least were concerned, would have been unaffected by the repeal. If a statute requires a will of
lands to be executed in the presence of two witnesses; and a will is actually executed in that manner,
and the statute is afterwards repealed, and three witnesses are made necessary, the will executed in
the presence of two others, when the former statute was in being, would be undoubtedly good; and if I
am not mistaken, a will made according to a law in being has been held good, even though the devisor
died after an alteration of it. Of this, however, I am not sure; but the general position, I imagine, will not
be questioned. [3 U.S. 199, 278] Let us now see the words of the treaty.

They are these:

'It is agreed, that creditors on either side shall meet with no lawful impediment to the recovery of the
full value in sterling money, of all bona fide debts heretofore contracted.'
The meaning of this provision may perhaps be better considered by an analysation of its parts, so far
as they concern the question before us.

1. Creditors There can be no creditor without two corelatives, a debtor and a debt.

Prima facie, therefore, if a debtor has been discharged, he is not the person whom any other person
can sue as a creditor. This probably may be fairly applied to the present Defendant, who as a debtor
was discharged by legal authority.

With regard to the debt, that in the present instance was not extinguished even by the act of the State,
because the right of the creditor to the money was not taken away.
The debt, therefore, remains but not from the same debtor. The state may be considered as substituting
itself in some measure in the place of the debtor. The full effect of that substitution, I am not now to
consider, nor would it be proper for me at present to give an opinion upon it. The question is not,
whether the creditor is entitled to his money, or in what manner, but whether he is entitled to recover it
against the present Defendant.

2. No lawful impediment. [278-Continued.]

These words must be construed as relative to the former, for the whole clause must be taken together.
Therefore, where there are a creditor and a debtor, there is to be no lawful impediment to the former
recovering against the latter.

If the present Defendant be not a debtor to the Plaintiff, how can the treaty operate as against him?

The words 'lawful impediment,' may admit of two senses.

One 'any lawful impediment whatsoever arising from any act done to the prejudice of a creditor's right
during the war.' I add that restriction 'during the war,' because the rules of construction as to treaties,
must narrow the words as to the object, the war, the affairs of which the Treaty of Peace was intended
to operate upon.

Or, 'any impediment arising from any law then in being, or thereafter to be passed, to the prejudice of
a creditor's right.'

The latter, I think, is not an unnatural construction, and would give the words great operation, and I
think is to be preferred to the former, for the following reasons:

1. This would stipulate for what each Legislature of the Union would rightfully and honestly do,
relinquish public claims [3 U.S. 199, 279] to debts existing before the war, and which otherwise might
have stood upon a precarious footing; for though peace alone would do away a common law disability
to sue, yet I apprehend it would not ipso facto remove a disability expressly created by statute, much
less extinguish any public right acquired under any act of confiscation.

2. Though Congress possibly might, as the price of peace, have been authorised to give up, even rights
fully acquired by private persons during the war, more especially if derived from the laws of war only
against the enemy, and in that case the individual might have been entitled to compensation from the
public, for whose interests his own rights were sacrificed; yet, nothing but the most rigorous necessity
could justify such a sacrifice; such a sacrifice is not to be presumed even to have been intended under
the operation of general words, not making such a construction unavoidable. For, it is reasonable to
infer, that in such a case special words would have been used to obviate the least colourable doubt.

Thus (for example) if it was stipulated in a treaty of peace between two European powers, 'that all ships
taken during the war should be restored,' I imagine this would not be construed to include ships taken
by privateers, and legally condemned during the war, unless it had, in fact, happened that no other
ships had been taken, and then I suppose they would be understood as comprehended, and their own
nation must have indemnified them.

3. If, according to the practice in Great Britain, in conformity to the law of nations, and upon the
principles of a mixed government, in case any impediments had then existed, by acts of Parliament in
Great Britain, to the recovery of American debts, such impediments could only have been removed by
a repeal, we may presume the British negociator had reason to conclude, that the lawful impediments
in this country could only be removed in the same manner; and if so, may we not fairly say, that the
impediments in view could be no other than such as the Legislatures in the respective countries could
do away by a repeal, or might by subsequent laws enact? If they wanted a further act of legislation,
grounded not merely on ordinary legislative authority, but upon power to destroy private rights acquired
under legislative faith, long since pledged and relied on, very special words were proper to effect that
object, and neither in one country nor the other could it have been effected with the least colour of
justice, but by providing at the same time the fullest means of indemnification.

4. This construction derives great weight from the recommendatory letter of Congress I before
mentioned, for I will venture to say, had the act they recommended been passed in [3 U.S. 199,
280] the State, in the very words they recommended, they would not have had efficacy enough to
destroy those payments as a bar. And yet, if Congress thought such a case ought to have been
comprehended, I presume they would have recommended a special provision, clearly comprehending
such cases, and accompanied with a full indemnity. I said the words of the treaty would have great
operation, without giving them the very rigorous one contended for. And that will more fully appear
when we take up the remaining words, viz. 3. 'To the recovery of the full value in sterling money of all
bona fide debts heretofore contracted. The operation (exclusive of these payments) would therefore be
this: 1st. All creditors whose debts had not been confiscated, or where the confiscations were not
complete, and no payments had been made, would have a right of recovering their debts. 2nd. Perhaps
all creditors, whether their debts were confiscated or not, or whether confiscations were complete or
not, excepting those only from whom the government had received the money, would be entitled to
recover, because undoubtedly the respective Legislatures were competent to restore all these. 3rd.
Another object of no small importance, was to secure the payment of all these debts in sterling money,
so that the creditors might not suffer by paper currency, either then in existence, or that might be
thereafter emitted. When these general words, therefore, can comprehend so many cases, all
reasonable objects of the article, I cannot think I am compelled as a Judge, and therefore I ought not
to do so, to say that the general words of this article, shall extinguish private as well as public rights. I
hold public faith so sacred, when once pledged either to citizens or to foreigners, that a violation of that
faith is never to be inferred as even in contemplation, but when it is impossible to give any other
reasonable construction to a public act. I do not clearly see that it was intended in the present instance.
I cannot therefore bring myself to say, that the present Defendant having once lawfully paid the money,
shall pay it over again. If the matter be only doubtful, I think the doubt should incline in favour of an
innocent individual, and not against him. I should hope that the present Plaintiff will still receive his
money, as his right to the money certainly has not been divested, but I think for all the reasons I have
given, he is not entitled to recover it from the present Defendant. My opinion, therefore, on the whole
of this case is, that judgment ought to be given for the Defendant upon the second plea; upon the third,
fourth and fifth for the Plaintiff. [3 U.S. 199, 281]

Wilson, Justice. I shall be concise in delivering my opinion, as it depends on a few plain principles. If
Virginia had a power to pass the law of October 1777, she must be equally empowered to pass a similar
law in any future war; for, the powers of Congress were, in fact, abridged by the articles of
confederation; and in relation to the present Constitution, she still retains her sovereignty and
independence as a State, except in the instances of express delegation to the Federal Government.
There are two points involved in the discussion of this power of confiscation: The first arising from the
rule prescribed by the law of nations; and the second arising from the construction of the treaty of
peace. When the United States declared their independence, they were bound to receive the law of
nations, in its modern state of purity and refinement. By every nation, whatever is its form of
government, the confiscation of debts has long been considered disreputable: and, we know, that not
a single confiscation of that kind stained the code of any of the European powers, who were engaged
in the war, which our revolution produced. Nor did any authority for the confiscation of debts proceed
from Congress (that body, which clearly possessed the right of confiscation, as an incident of the
powers of war and peace) and, therefore, in no instance can the act of confiscation be considered as
an act of the nation. But even if Virginia had the power to confiscate, the treaty annuls the confiscation.
The fourth article is well expressed to meet the very case: it is not confined to debts existing at the time
of making the treaty; but is extended to debts heretofore contracted. It is impossible by any glossary,
or argument, to make the words more perspicuous, more conclusive, than by a bare recital.
Independent, therefore, of the Constitution of the United States, (which authoritatively inculcates the
obligation of contracts) the treaty is sufficient to remove every impediment founded on the law of
Virginia. The State made the law; the State was a party to the making of the treaty: a law does nothing
more than express the will of a nation; and a treaty does the same. Under this general view of the
subject, I think the judgment of the Circuit Court ought to be reversed.

Cushing, Justice. My state of this case will, agreeably to my view of it, be short, I shall not question the
right of a State to confiscate debts. Here is an act of the Assembly of Virginia, passed in 1777,
respecting debts; which contemplating to prevent the enemy deriving strength by the receipt of them
during the war, provides, that if any British debtor will pay his debt into the Loan Office, obtain a
certificate and [3 U.S. 199, 282] receipt as directed, he shall be discharged from so much of the debt.
But an intent is expressed in the act not to confiscate, unless Great Britain should set the example. This
act, it is said, works a discharge and a bar to the payer. If such payment is to be considered as a
discharge, or a bar, so long as the act had force, the question occurs; Was there a power, by the treaty,
supposing it contained proper words, entirely to remove this law, and this bar, out of the creditor's way?

This power seems not to have been contended against, by the Defendant's council: And, indeed, it
cannot be denied; the treaty having been sanctioned, in all its parts, by the Constitution of the United
States, as the supreme law of the land.

Then arises the great question, upon the import of the fourth article of the treaty: And to me, the plain
and obvious meaning of it, goes to nullify, ab initio, all laws, or the impediments of any law, as far as
they might have been designed to impair, or impede, the creditor's right, or remedy, against his original
debtor. 'Creditors on either side shall meet with no lawful impediment to the recovery of the full value
in sterling money, of all bona fide debts heretofore contracted.'

The article speaking of creditors, and bona fide debts heretofore contracted, plainly contemplates
debts, as originally contracted, and creditors and original debtors; removing out of the way all legal
impediments; so that a recovery might be had, as if no such laws had particularly interposed. The words
'recovery of the full value in sterling money,' if they have force, or meaning, must annihilate all tender
laws, making any thing a tender, but sterling money; and the other words, or at least the whole taken
together, must, in like manner, remove all other impediments of law, aimed at the recovery of those
debts.

What has some force to confirm this construction, is the sense of all Europe, that such debts could not
be touched by States, without a breach of public faith: And for that, and other reasons, no doubt, this
provision was insisted upon, in full latitude, by the British negotiators. If the sense of the article be, as
stated, it obviates, at once, all the ingenious, metaphysical, reasoning and refinement upon the words,
debt, discharge, extinguishment, and affords an answer to the decision made in the time of the
interregnum that payment to sequestors, was payment to the creditor.

A State may make what rules it pleases; and those rules must necessarily have place within itself.

But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and
purposes; and that makes the difference. Diverse objections are made to this construction: That it is an
odious one, and as such, ought to [3 U.S. 199, 283] be avoided: That treaties regard the existing state
of things: That it would carry an imputation upon public faith: That it is founded on the power of eminent
domain, which ought not to be exercised, but upon the most urgent occasions: That the negociators
themselves did not think they had power to repeal laws of confiscation; because they, by the fifth article,
only agreed, that Congress should recommend a repeal to the States. As to the rule respecting odious
constructions; that takes place where the meaning is doubtful, not where it is clear, as I think it is in this
case. But it can hardly be considered as an odious thing, to inforce the payment of an honest debt,
according to the true intent and meaning of the parties contracting; especially if, as in this case, the
State having received the money, is bound in justice and honor, to indemnify the debtor, for what it in
fact received. In whatever other rights this act of Assembly may be reviewed, I consider it in one, as
containing a strong implied engagement, on the part of the State, to indemnify every one who should
pay money under it, pursuant to the invitation it held out. Having never confiscated the debt, the State
must, in the nature and reason of things, consider itself as answerable to the value. And this seems to
be the full sense of the legislators upon this subject, in a subsequent act of assembly; but the treaty
holds the original debtor answerable to his creditor, as I understand the matter. The State, therefore,
must be responsible to the debtor. These considerations will, in effect, exclude the idea of the power of
eminent domain; and if they did not, yet there was sufficient authority to exercise it, and the greatest
occasion that perhaps could ever happen. The same considerations will also take away all ground of
imputation upon public faith. Again, the treaty regarded the existing state of things, by removing the
laws then existing, which intended to defeat the creditor of his usual remedy at law. As to the
observations upon the recommendatory provision of the fifth article; I do not see that we can collect the
private opinion of the negociators, respecting their powers, by what they did not do; and if we could,
this court is not bound by their opinion, unless the reasons on which it was founded, being known, were
convincing. It would be hard upon them, to suppose they gave up all, that they might think they strictly
had a right to give up. We may allow somewhat to skill, policy and fidelity. With respect to confiscations
of real and personal estates, which had been compleated, the estates sold, and, perhaps, passed
through the hands of a number of purchasers, and improvements made upon real estates, by the then
possessors; they knew, that to give them up absolutely, must create much confusion in this [3 U.S. 199,
284] country. Avoiding that, (whether from an apprehension of want of power does not appear from
the instrument) they were lead only to agree, that Congress should recommend a restitution, or
composition. The fourth article, which is particularly and solely employed about debts, makes provision,
according to the doctrine then held sacred by all the sovereigns of Europe. Although our negociators
did not gain an exemption for individuals, from bona fide debts, contracted in time of peace, yet they
gained much for this country: as rights of fishery, large boundaries, a settled peace, and absolute
independence, with their concomitant and consequent advantages: All which, it might not have been
prudent for them to risque, by obstinately insisting on such exemption, either in whole or in part, contrary
to the humane and meliorated policy of the civilized world, in this particular. The fifth article, it is
conceived, can not affect or alter the construction of the fourth article. For, first, it is against reason,
that a special provision made respecting debts by name, should be taken away immediately after, in
the next article, by general words, or words of implication, which words too, have, otherwise, ample
matter to operate upon. 2nd. No implication from the fifth article, can touch the present case, because
that speaks only of actual confiscations, and here was no confiscation. If we believe the Virginia
legislators, they say, 'We do not confiscate we will not confiscate debts, unless Great Britain sets the
example,' which it is not pretended she ever did. The provision, that 'Creditors shall meet with no lawful
impediment,' etc is as absolute, unconditional, and peremptory, as words can well express, and made
not to depend on the will and pleasure, or the optional conduct of any body of men whatever. To effect
the object intended, there is no want of proper and strong language; there is no want of power, the
treaty being sanctioned as the supreme law, by the constitution of the United States, which nobody
pretends to deny to be paramount and controlling to all state laws, and even state constitutions,
wheresoever they interfere or disagree. The treaty, then, as to the point in question, is of equal force
with the constitution itself; and certainly, with any law whatsoever. And the words, 'shall meet with no
lawful impediment,' etc. are as strong as the wit of man could devise, to avoid all effects of
sequestration, confiscation, or any other obstacle thrown in the way, by any law, particularly pointed
against the recovery of such debts. I am, therefore, of opinion, that the judgment of the Circuit Court
ought to be reversed. [3 U.S. 199, 285] BY THE COURT. All and singular the premises being seen by
the court here and fully understood, and mature deliberation had thereon, because it appears to the
court now here, that in the record and process aforesaid, and also in the rendition of the judgment
aforesaid, upon the demurrer to the rejoinder of the Defendants in error, to the replication of the second
plea, it is manifestly erred, it is considered that the said judgment for those errors and others in the
record and process aforesaid, be revoked and annulled, and altogether held for nought, and it is further
considered by the court here, that the Plaintiff in error recover against the Defendants, two thousand
nine hundred and seventy-six pounds, eleven shillings and six-pence, good British money, commonly
called sterling money, his debt aforesaid, and his costs by him about his suit in this behalf expended,
and the said Defendants, in mercy, etc. But this judgment is to be discharged by the payment of the
sum of 596 dollars, and interest thereon to be computed, after the rate of five per cent per annum, from
the 7th day of July, 1782, till payment, besides the costs, and by the payment of such damages as shall
be awarded to the Plaintiff in error, on a writ of enquiry to be issued by the Circuit Court of Virginia, to
ascertain the sum really due to the Plaintiff in error, exclusively of the said sum of 596 dollars, which
was found to be due to the Plaintiff in error, upon the trial in the said Circuit Court, on the issue joined
upon the Defendant's plea of payment, at a time when the judgment of the said Circuit Court on the
said demurrer was unreversed and in full force and vigor, and for the execution of the judgment of the
court, the cause aforesaid is remanded to the said Circuit Court of Virginia.

Judgment reversed.

THE PAQUETE HABANA, (1900)

No. 395
Argued: Decided: January 8, 1900
[175 U.S. 677, 678] Mr J. Parker Kirlin for appellants.

Assistant Attorney General Hoyt, Solicitor General Richards, and Messrs. Joseph K. McCammon,
James H. Hayden, George A. King, and William B. King for appellees.

Mr. Justice Gray delivered the opinion of the court:

These are two appeals from decrees of the district court of the United States for the southern district of
Florida condemning two fishing vessels and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on
the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living
in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master
and crew had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her
catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from
the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading
squadron she had no knowledge of the existence of the war or of any blockade. She had no arms or
ammunition on board, and made on attempt to run the blockade after she knew of its existence, nor
any resistance at the time of the capture.

The Paquete Habana was a sloop, 43 feet long on the keel, [175 U.S. 677, 679] and of 25 tons burden,
and had a crew of three Cubans, including the master, who had a fishing license from the Spanish
government, and no other commission or license. She left Havana March 25, 1898; sailed along the
coast of Cuba to Cape San Antonio, at the western end of the island, and there fished for twenty-five
days, lying between the reefs off the cape, within the territorial waters of Spain; and then started back
for Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about 2 miles off Mariel,
and 11 miles from Havana, she was captured by the United States gunboat Castine.

The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six
Cubans, including the master, and no commission or license. She left Havana April 11, 1898, and
proceeded to Campeachy sound, off Yucatan, fished there eight days, and started back for Havana
with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by
the United States steamship Cincinnati, and was warned not to go into Havana, but was told that she
would be allowed to land at Bahia Honda. She then changed her course, and putfor Bahia Honda, but
on the next morning, when near that port, was captured by the United States steamship Dolphin.

Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of
each vessel and her cargo as prize of war was there filed on April 27, 1898; a claim was interposed by
her master on behalf of himself and the other members of the crew, and of her owner; evidence was
taken, showing the facts above stated; and on May 30, 1898, a final decree of condemnation and sale
was entered, 'the court not being satisfied that as a matter of law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are exempt from seizure.'

Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490; and the Lola for
the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo.

It has been suggested, in behalf of the United States, that [175 U.S. 677, 680] this court has no
jurisdiction to hear and determine these appeals, because the matter in dispute in either case does not
exceed the sum or value of $2,000, and the district judge has not certified that the adjudication involves
a question of general importance.

The suggestion is founded on 695 of the Revised Statutes, which provides that 'an appeal shall be
allowed to the Supreme Court from all final decrees of any district court in prize causes, where the
matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars; and shall be
allowed, without reference to the value of the matter in dispute, on the certificate of the district judge
that the adjudication involves a question of general importance.'

The judiciary acts of the United States, for a century after the organization of the government under the
Constitution, did impose pecuniary limits upon appellate jurisdiction.

In actions at law and suits in equity the pecuniary limit of the appellate jurisdiction of this court from the
circuit courts of the United States was for a long time fixed at $2000. Acts of September 24, 1789, chap.
20, 22; 1 Stat. at L. 84; March 3, 1803, chap. 40; 2 Stat. at L. 244; Gordon v. Ogden, 3 Pet. 33, 7 L. ed.
592; Rev. Stat. 691, 692. In 1875 it was raised to $5,000. Act of February 16, 1875, chap. 77, 3; 18
Stat. at L. 316. And in 1889 this was modified by providing that, where the judgment or decree did not
exceed the sum of $5,000, this court should have appellate jurisdiction upon the question of the
jurisdiction of the circuit court, and upon that question only. Act of February 25, 1889, chap. 236, 1; 25
Stat. at L. 693; Parker v. Ormsby, 141 U.S. 81 , 35 L. ed. 654, 11 Sup. Ct. Rep. 912.

As to cases of admiralty and maritime jurisdiction, including prize causes, the judiciary act of 1789, in
9, vested the original jurisdiction in the district courts, without regard to the sum or value in controversy;
and in 21 permitted an appeal from them to the circuit courts where the matter in dispute exceeded the
sum or value of $300. 1 Stat. at L. 77, 83, chap. 20; The Betsey, 3 Dall. 6, 16, sub nom. Glass v. The
Betsey, 1 L. ed. 485, 489; The Amiable Nancy, 3 Wheat. 546, 4 L. ed. 456; Stratton v. Jarvis, 8 Pet.
44, 11, 8 L. ed. 846, 849. By the act of March 3, 1803, chap. 40, appeals to the circuit court were
permitted from all final decrees of a district court where [175 U.S. 677, 681] the matter in dispute
exceeded the sum or value of $50; and from the circuit courts to this court in all cases 'of admiralty and
maritime jurisdiction, and of prize or no prize' in which the matter in dispute exceeded the sum or value
of $2,000. 2 Stat. at L. 244; Jenks v. Lewis, 3 Mason, 503, Fed. Cas. No. 7,279; Stratton v. Jarvis,
above cited; The Admiral, 3 Wall. 603, 612, sub nom. The Admiral v. United States, 18 L. ed. 58, 59.
The acts of March 3, 1863, chap. 86, 7, and June 30, 1864, chap. 174, 13, provided that appeals from
the district courts in prize causes should lie directly to this court, where the amount in controversy
exceeded $2,000, or 'on the certificate of the district judge that the adjudication involves a question of
difficulty and general importance.' 12 Stat. at L. 760; 13 Stat. at L. 310. The provision of the act of 1803,
omitting the words 'and of prize or no prize,' was re-enacted in 692 of the Revised Statutes; and the
provision of the act of 1864, concerning prize causes, was substantially re-enacted in 695 of the
Revised Statutes, already quoted.

But all this has been changed by the act of March 3, 1891, chap. 517, establishing the circuit courts of
appeals, and creating a new and complete scheme of appellate jurisdiction, depending upon the nature
of the different cases, rater than upon the pecuniary amount involved. 26 Stat. at L. 826.

By that act, as this court has declared, the entire appellate jurisdiction from the circuit and district courts
of the United States was distributed, 'according to the scheme of the act,' between this court and the
circuit courts of appeals thereby established, 'by designating the classes of cases' of which each of
these courts was to have final jurisdiction. McLish v. Roff, 141 U.S. 661, 666 , 35 S. L. ed. 893, 894, 12
Sup. Ct. Rep. 118; American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U.S. 372, 382 , 37 S.
L. ed. 486, 490, 13 Sup. Ct. Rep. 758; Carey v. Houston & T. C. R. Co. 150 U.S. 170, 179 , 37 S. L.
ed. 1041, 1043, 14 Sup. Ct. Rep. 63.

The intention of Congress, by the act of 1891, to make the nature of the case, and not the amount in
dispute, the test of the appellate jurisdiction of this court from the district and circuit courts, clearly
appears upon examination of the leading provisions of the act.

Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter be taken from
a district court [175 U.S. 677, 682] to a circuit court; but that all appeals, by writ of error or otherwise,
from the district courts, 'shall only be subject to review' in this court or in the circuit court of appeal 'as
is hereinafter provided,' and 'the review by appeal, by writ of error, or otherwise' from the circuit courts,
'shall be had only' in this court or in the circuit court of appeals, 'according to the provisions of this act
regulating the same.'

Section 5 provides that 'appeals or writs of error may be taken from the district courts, or from the
existing circuit courts, direct to the Supreme Court, in the following cases:'

First. 'In any case in which the jurisdiction of the court is in issue; in such cases the question of
jurisdiction alone shall be certified to the Supreme Court from the court below for decision.' This clause
includes 'any case,' without regard to amount, in which the jurisdiction of the court below is in issue;
and differs in this respect from the act of 1889, above cited.

Second. 'From the final sentences and decrees in prize causes.' This clause includes the whole class
of 'the final sentences and decrees in prize causes,' and omits all provisions of former acts regarding
amount in controversy, or certificate of a district judge.

Third. 'In cases of conviction of a capital or otherwise infamous crime.' This clause looks to the nature
of the crime, and not to the extent of the punishment actually imposed. A crime which might have been
punished by imprisonment in a penitentiary is an infamous crime, even if the sentence actually
pronounced is of a small fine only. Ex parte Wilson, 114 U.S. 417, 426 , 29 S. L. ed. 89, 92, 5 Sup. Ct.
Rep. 935. Consequently, such a sentence for such a crime was subject to the appellate jurisdiction of
this court, under this clause, until this jurisdiction, so far as regards infamous crimes, was transferred
to the circuit court of appeals by the act of January 20, 1897, chap. 68. 29 Stat. at L. 492.

Fourth. 'In any case that involves the construction or application of the Constitution of the United States.'
Fifth. 'In any case in which the constitutionality of any law of the United States, or the validity or
construction of any treaty made under its authority, is drawn in question.' [175 U.S. 677, 683] Sixth.
'In any case in which the Constitution or law of a state is claimed to be in contravention of the
Constitution of the United States.'

Each of these last three clauses, again, includes 'any case' of the class mentioned. They all relate to
what are commonly called Federal questions, and cannot reasonably be construed to have intended
that the appellate jurisdiction of this court over such questions should be restricted by any pecuniary
limit,-especially in their connection with the succeeding sentence of the same section: 'Nothing in this
act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a state,
nor the construction of the statute providing for review of such cases.' Writs of error from this court to
review the judgments of the highest court of a state upon such questions have never been subject to
any pecuniary limit. Act of September 24, 1789, chap. 20, 25; 1 Stat. at L. 85; Buel v. Van Ness, 8
Wheat. 312, 5 L. ed. 624; Act of February 5, 1867, chap. 28, 2; 14 Stat. at L. 386; Rev. Stat. 709.

By 6 of the act of 1891 this court is relieved of much of the appellate jurisdiction that it had before; the
appellate jurisdiction from the district and circuit courts 'in all cases other than those provided for in the
preceding section of this act, unless otherwise provided by law,' is vested in the circuit court of appeals;
and its decisions in admiralty cases, as well as in cases arising under the cirminal laws, and in certain
other classes of cases, are made final, except that that court may certify to this court questions of law,
and that this court may order up the whole case by writ of certiorari. It is settled that the words 'unless
otherwise provided by law,' in this section, refer only to provisions of the same act, or of
contemporaneous or subsequent acts, and do not include provisions of earlier statutes. Lau Ow Bew
v. United States, 144 U.S. 47, 57 , 36 S. L. ed. 340, 343, 12 Sup. Ct. Rep. 517; Hubbard v. Soby, 146
U.S. 56 , 36 L. ed. 886, 13 Sup. Ct. Rep. 13; American Constr. Co. v. Jacksonville, T. & K. W. R.
Co. 148 U.S. 372, 383 , 37 S. L. ed. 486, 491, 13 Sup. Ct. Rep. 758.

The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this court
or of the circuit court of appeals, from a district or circuit court of the United States. The only pecuniary
limit imposed is one of [175 U.S. 677, 684] $1,000 upon the appeal to this court of a case which has
been once decided on appeal in the circuit court of appeals, and in which the judgment of that court is
not made final by 6 of the act.

Section 14 of the act of 1891, after specifically repealing 691 of the Revised Statutes and 3 of the act
of February 16, 1875, further provides that 'all acts and parts of acts relating to appeals or writs of error,
inconsistent with the provisions for review by appeals or writs of error in the preceding 5 and 6 of this
act, are hereby repealed.' 26 Stat. at L. 829, 830. The object of the specific repeal, as this court has
declared, was to get rid of the pecuniary limit in the acts referred to. McLish v. Roff, 141 U.S. 661, 667 ,
35 S. L. ed. 893, 895, 12 Sup. Ct. Rep. 118. And, although neither 692 nor 695, of the Revised Statutes
is repealed by name, yet, taking into consideration the general repealing clause, together with the
affirmative provisions of the act, the case comes within the reason of the decision in an analogous case,
in which this court said: 'The provisions relating to the subject-matter under consideration are, however,
so comprehensive, as well as so variant from those of former acts, that we think the intention to
substitute the one for the other is necessarily to be inferred, and must prevail.' Fisk v. Henarie, 142 U.S.
459, 468 , 35 S. L. ed. 1079, 1083, 12 Sup. Ct. Rep. 207.

The decision in this court in the recent case of United States v. Rider, 163 U.S. 132 , 41 L. ed. 101, 16
Sup. Ct. Rep. 983, affords an important, if not controlling, precedent. From the beginning of this century
until the passage of the act of 1891, both in civil and in criminal cases, questions of law upon which two
judges of the circuit court were divided in opinion might be certified by them to this court for decision.
Act of April 29, 1802, chap. 31, 6; 2 Stat. at L. 159; June 1, 1872, chap. 255, 1; 17 Stat. at L. 196; Rev.
Stat. 650-652, 693, 697; New England M. Ins. Co. v. Dunham, 11 Wall. 1, 21, 20 L. ed. 90, 96; United
States v. Sanges, 144 U.S. 310, 320 , 36 S. L. ed. 445, 449, 12 Sup. Ct. Rep. 609. But in United States
v. Rider it was adjudged by this court that the act of 1891 had superseded and repealed the earlier acts
authorizing questions of law to be certified from the circuit court to this court; and the grounds of that
adjudication sufficiently appear by [175 U.S. 677, 685] the statement of the effect of the act of 1891 in
two passages of that opinion: 'Appellate jurisdiction was given in all criminal cases by writ of error either
from this court or from the circuit courts of appeals, and in all civil cases by appeal or error, without
regard to the amount in controversy, except as to appeals or writs of error to or from the circuit courts
of appeals in cases not made final as specified in 6.' 'It is true that repeals by implication are not favored,
but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the
act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive
rule in respect of appellate jurisdiction on appeal, writ of error, or certificate.' 163 U.S. 138 -140, 41 L.
ed. 104, 16 Sup. Ct. Rep. 986.

That judgment was thus rested upon two successive propositions: First, that the act of 1891 gives
appellate jurisdiction, either to this court or to the circuit court of appeals, in all criminal cases, and in
all civil cases 'without regard to the amount in controversy;' second, that the act, by its terms, its scope,
and its obvious purpose, 'furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ
of error, or certificate.'

As was long ago said by Chief Justice Marshall, 'the spirit as well as the letter of a statute must be
respected, and where the whole context of the law demonstrates a particular intent in the legislature to
effect a certain object, some degree of implication may be called in to aid that intent.' Durousseau v.
United States, 6 Cranch, 307, 314, 3 L. ed. 232, 234. And it is a well-settled rule in the construction of
statutes, often affirmed and applied by this court, that, 'even where two acts are not in express terms
repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly
showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.' United
States v. Tynen, 11 Wall. 88, 92, 20 L. ed. 153, 154; King v. Cornell, 106 U.S. 395, 396 , 27 S. L. ed.
60, 1 Sup. Ct. Rep. 312; Tracy v. Tuffly, 134 U.S. 206, 223 , 33 S. L. ed. 879, 884, 10 Sup. Ct. Rep.
527; Fisk v. Henarie, 142 U.S. 459, 468 , 35 S. L. ed. 1079, 1083, 12 Sup. Ct. Rep. 207; District of
Columbia v. Hutton, 143 U.S. 18, 27 , 36 S. L. ed. 60, 62, 12 Sup. Ct. Rep. 369; United States v.
Healey, 160 U.S. 136, 147 , 40 S. L. ed. 369, 373, 16 Sup. Ct. Rep. 247.

We are of opinion that the act of 1891, upon its face, read [175 U.S. 677, 686] in the light of settled
rules of statutory construction and of the decisions of this court, clearly manifests the intention of
Congress to cover the whole subject of the appellate jurisdiction from the district and circuit courts of
the United States, so far as regards in what cases, as well as to what courts, appeals may be taken,
and to supersede and repeal, to this extent, all the provisions of earlier acts of Congress, including
those that imposed pecuniary limits upon such jurisdiction, and, as part of the new scheme, to confer
upon this court jurisdiction of appeals from all final sentences and decrees in prize causes, without
regard to the amount in dispute, and without any certificate of the district judge as to the importance of
the particular case.

We are then brought to the consideration of the question whether, upon the facts appearing in these
records, the fishing smacks were subject to capture by the armed vessels of the United States during
the recent war with Spain.

By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a
rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh
fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.

This doctrine, however, has been earnestly contested at the bar; and no complete collection of the
instances illustrating it is to be found, so far as we are aware, in a single published work although many
are referred to and discussed by the writers on international law, notable in 2 Ortolan, Regles
Internationales et Diplomatie de la Mer (4th ed.) lib. 3, chap. 2, pp. 51-56; in 4 Calvo, Droit International
(5th ed.) 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, 191-196; and in
Hall, International Law (4th ed.) 148. It is therefore worth the while to trace the history of the rule, from
the earliest accessible sources, through the increasing recognition of it, with occasional setbacks, to
what we may now justly consider as its final establishment in our own country and generally throughout
the civilized world.

The earliest acts of any government on the subject, men- [175 U.S. 677, 687] tioned in the books,
either emanated from, or were approved by, a King of England.

In 1403 and 1406 Henry IV. issued orders to his admirals and other officers, entitled 'Concerning Safety
for Fishermen-De Securitate pro Piscatoribus.' By an order of October 26, 1403, reciting that it was
made pursuant to a treaty between himself and the King of France; and for the greater safety of the
fishermen of either country, and so that they could be, and carry on their industry, the more safely on
the sea, and deal with each other in peace; and that the French King had consented that English
fishermen should be treated likewise,-it was ordained that French fishermen might, during the then
pending season for the herring fishery, safely fish for herrings and all other fish, from the harbor of
Gravelines and the island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an
order of October 5, 1406, he took into his safe conduct and under his special protection, guardianship,
and defense, all and singular the fishermen of France, Flanders, and Brittany, with their fishing vessels
and boats, everywhere on the sea, through and within his dominions, jurisdictions, and territories, in
regard to their fishery, while sailing, coming, and going, and, at their pleasure, freely and lawfully fishing,
delaying, or proceeding, and returning homeward with their catch of fish, without any molestation or
hindrance whatever; and also their fish, nets, and other property and goods soever; and it was therefore
ordered that such fishermen should not be interfered with, provided they should comport themselves
well and properly, and should not, by color of these presents, do or attempt, or presume to do or attempt,
anything that could prejudice the King, or his Kingdom of England, or his subjects. 8 Rymer's Foedera,
336, 451.

The treaty made October 2, 1521, between the Emperor Charles V. and Francis I. of France, through
their ambassadors, recited that a great and fierce war had arisen between them, because of which
there had been, both by land and by sea, frequent depredations and incursions on either side, to the
grave detriment and intolerable injury of the innocent [175 U.S. 677, 688] subjects of each; and that a
suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy,
the fishermen did not dare to go out, whereby the subject of their industry, bestowed by heaven to allay
the hunger of the poor, whould wholly fail for the year, unless it were otherwise provided,-Quo fit, ut
piscaturoe commoditas, ad pauperum levandam famen a coelesti numine concessa, cessare hoc anno
cmnino debeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each sovereign,
fishing in the sea, or exercising the calling of fishermen, could and might, until the end of the next
January, without incurring any attack, depredation, molestation, trouble, or hindrance soever, safely
and freely, everywhere in the sea, take herrings and every other kind of fish, the existing war by land
and sea notwithstanding; and, further, that during the time aforesaid no subject of either sovereign
should commit, or attempt or presume to commit, any depredation, force, violence, molestation, or
vexation to or upon such fishermen or their vessels, supplies, equipments, nets, and fish, or other goods
soever truly appeartaining to fishing. The treaty was made at Calais, then an English possession. It
recites that the ambassadors of the two sovereigns met there at the earnest request of Henry VIII. and
with his countenance, and in the presence of Cardinal Wolsey, his chancellor and representative. And
towards the end of the treaty it is agreed that the said King and his said representative, 'by whose
means the treaty stands concluded, shall be conservators of the agreements therein, as if thereto by
both parties elected and chosen.' 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.

The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. Bynkershoek,
Quaestiones Juris Publicae, lib. 1, chap. 3; 1 Emerigon des Assurances, chap. 4, 9; chap. 12, 19, 8.

France, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen.
In the compilation entitled 'Us et Coutumes de la Mer,' published by Cleirac in 1661, and in the third
part thereof, containing 'Maritime or Admiralty Jurisdiction,-la Jurisdiction de la [175 U.S. 677,
689] Marine ou d' Admiraute-as well in time of peace, as in time of war,' article 80 is as follows: 'The
admiral may in time of war accord fishing truces-tresves pescheresses-to the enemy and to his
subjects; provided that the enemy will likewise accord them to Frenchmen.' Cleirac, 544. Under this
article, reference is made to articles 49 and 79 respectively of the French ordinances concerning the
admiralty in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes,
319; 2 Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart's Chronicles: 'Fishermen
on the sea, whatever war there were in France and England, never did harm to one another; so they
are friends, and help one another at need,-Pescheurs sur mer, quelque guerre qui soit en France et
Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin.'

The same custom would seem to have prevailed in France until towards the end of the seventeenth
century. For example, in 1675, Louis XIV. and the States General of Holland by mutual agreement
granted to Dutch and French fishermen the liberty, undisturbed by their vessels of war, of fishing along
the coats of France, Holland, and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol.
2, p. 278. But by the ordinances of 1681 and 1692 the practice was discontinued, because, Valin says,
of the faithless conduct of the enemies of France, who, abusing the good faith with which she had
always observed the treaties, habitually carried off her fishermen, while their own fished in safety. 2
Valin sur l'Ordonnance de la Marine (1776) 689, 690; 2 Ortolan, 52; De Boeck, 192.
The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of
war, has been familiar to the United States from the time of the War of Independence.

On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing him that
the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his
attention to that class of his subjects [175 U.S. 677, 690] which devoted itself to the trade of fishing,
and had no other means of livelihood; that he had thought that the example which he should give to his
enemies, and which could have no other source than the sentiments of humanity which inspired him,
would determine them to allow to fishermen the same facilities which he should consent to grant; and
that he had therefore given orders to the commanders of all his ships not to disturb English fishermen,
nor to arrest their vessels laden with fresh fish, even if not caught by those vessels; provided they had
no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence
with the enemy; and the admiral was directed to communicate the King's intentions to all officers under
his control. By a royal order in council of November 6, 1780, the former orders were confirmed; and the
capture and ransom, by a French cruiser, of The John and Sarah, an English vessel, coming from
Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901,
903.

Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty,
was one of April 11, 1780, by which it was 'ordered that all causes of prize of fishing boats or vessels
taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under
50 tons burthen, and not more than 6 in number.' Marriott's Formulary, 4. But by the statements of his
successor, and of both French and English writers, it apears that England, as well as France, during
the American Revolutionary War, abstained from interfering with the coast fisheries. The Young Jacob
and Johanna, 1 C. Rob. 20; 2 Ortolan, 53; Hall, 148.

In the treaty of 1785 between the United States and Prussia, article 23 (which was proposed by the
American Commissioners, John Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have
been drawn up by Franklin), provided that, if war should arise between the contracting parties, 'all
women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and
fishermen, [175 U.S. 677, 691] unarmed and inhabiting unfortified towns, villages, or places, and in
general all others whose occupations are for the common subsistence and benefit of mankind, shall be
allowed to continue their respective employments, and shall not be molested in their persons, nor shall
their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of
the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary
to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.'
8 Stat. at L. 96; 1 Kent, Com. 91, note; Wheaton, History of the Law of Nations, 306, 308. Here was
the clearest exemption from hostile molestation or seizure of the persons, occupations, houses, and
goods of unarmed fishermen inhabiting unfortified places. The article was repeated in the later treaties
between the United States and Prussia of 1799 and 1828. 8 Stat. at L. 174, 384. And Dana, in a note
to his edition of Wheaton's International Laws, says: 'In many treaties and decrees, fishermen catching
fish as an article of food are added to the class of persons whose ocupation is not to be disturbed in
war.' Wheaton, International Law (8th ed.) 345, note 168.

Since the United States became a nation, the only serious interruptions, so far as we are informed, of
the general recognition of the exemption of coast fishing vessels from hostile capture, arose out of the
mutual suspicions and recriminations of England and France during the wars of the French Revolution.

In the first years of those wars, England having authorized the capture of French fishermen, a decree
of the French National Convention of October 2, 1793, directed the executive power 'to protest against
this conduct, theretofore without example; to reclaim the fishing boats seized; and, in case of refusal,
to resort to reprisals.' But in July, 1796, the Committee of Public Safety ordered the release of English
fishermen seized under the former decree, 'not considering them as prisoners of war.' La Nostra
Segnora de la Piedad (1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit
Commercial (2d ed.) 266, 267. [175 U.S. 677, 692] On January 24, 1798, the English government by
express order instructed the commanders of its ships to seize French and Dutch fishermen with their
boats. 6 Martens, Recueil des Traites (2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53.
After the promulgation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty
of England condemned small Dutch fishing vessels as prize of war. In one case the capture was in
April, 1798, and the decree was made November 13, 1798. The Young Jacob and Johanna, 1 C. Rob.
20. In another case the decree was made August 23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.

For the year 1800 the orders of the English and French governments and the correspondence between
them may be found in books already referred to. 6 Martens, 503-512; 6 Schoell, 118-120; 2 Ortolan,
53, 54. The doings for that year may be summed up as follows: On March 27, 1800, the French
government, unwilling to resort to reprisals, re-enacted the orders given by Louis XVI. in 1780, above
mentioned, prohibiting any seizure by the French ships of English fishermen, unless armed or proved
to have made signals to the enemy. On May 30, 1800, the English government, having received notice
of that action of the French government, revoked its order of January 24, 1798. But soon afterward the
English government complained that French fishing boats had been made into fireboats at Flushing,
as well as that the French government had impressed and had sent to Brest, to serve in its flotilla,
French fishermen and their boats, even those whom the English had released on condition of their not
serving; and on January 21, 1801, summarily revoked its last order, and again put in force its order of
January 24, 1798. On February 16, 1801, Napoleon Bonaparte, then First Consul, directed the French
commissioner at London to return at once to France, first declaring to the English government that its
conduct, 'contrary to all the usages of civilized nations, and to the common law which governs them,
even in time of war, gave to the existing war a character of rage and bitterness which destroyed even
the relations usual in a loyal war,' [175 U.S. 677, 693] AND 'TENDED ONLY TO EXASPERATE THE
TWO nations, and to put off the term of peace;' and that the French government, having always made
it 'a maxim to alleviate as much as possible the evils of war, could not think, on its part, of rendering
wretched fishermen victims of a prolongation of hostilities, and would abstain from all reprisals.'

On March 16, 1801, the Addington Ministry, having come into power in England, revoked the orders of
its predecessors against the French fishermen; maintaining, however, that 'the freedom of fishing was
nowise founded upon an agreement, but upon a simple concession;' that 'this concession would be
always subordinate to the convenience of the moment,' and that 'it was never extended to the great
fishery, or to commerce in oysters or in fish.' And the freedom of the coast fisheries was again allowed
on both sides. 6 Martens, 514; 6 Schoell, 121; 2 Ortolan, 54; Manning, Law of Nations (Amos's ed.)
206.

Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20, above cited, was much relied
on by the counsel for the United States, and deserves careful consideration.

The vessel there condemned is described in the report as 'a small Dutch fishing vessel taken April,
1798, on her return from the Dogger bank to Holland;' and Lord Stowell, in delivering judgment, said:
'In former wars it has not been usual to make captures of these small fishing vessels; but this rule was
a rule of comity only, and not of legal decision; it has prevailed from views of mutual accommodation
between neighboring countries, and from tenderness to a poor and industrious order of people. In the
present war there has, I presume, been sufficient reason for changing this mode of treatment; and as
they are brought before me for my judgment they must be referred to the general principles of this court;
they fall under the character and description of the last class of cases; that is, of ships constantly and
exclusively employed in the enemy's trade.' And he added: 'It is a further satisfaction to me, in giving
this judgment, to observe that the facts also bear strong marks of a false and fraudulent
transaction.' [175 U.S. 677, 694] Both the capture and the condemnation were within a year after the
order of the English government of January 24, 1798, instructing the commanders of its ships to seize
French and Dutch fishing vessels, and before any revocation of that order. Lord Stowell's judgment
shows that his decision was based upon the order of 1798, as well as upon strong evidence of fraud.
Nothing more was adjudged in the case.

But some expressions in his opinion have been given so much weight by English writers that it may be
well to examine them particularly. The opinion begins by admitting the known custom in former wars
not to capture such vessels; adding, however, 'but this was a rule of comity only, and not of legal
decision.' Assuming the phrase 'legal decision' to have been there used, in the sense in which courts
are accustomed to use it, as equivalent to 'judicial decision,' it is true that, so far as appears, there had
been no such decision on the point in England. The word 'comity' was apparently used by Lord Stowell
as synonymous with courtesy or goodwill. But the period of a hundred years which has since elapsed
is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or
concession, to grow, by the general assent of civilized nations, into a settled rule of international law.
As well said by Sir James Mackintosh: 'In the present century a slow and silent, but very substantial,
mitigation has taken place in the practice of war; and in proportion as that mitigated practice has
received the sanction of time it is raised from the rank of mere usage, and becomes part of the law of
nations.' Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360.

The French prize tribunals, both before and after Lord Stowell's decision, took a wholly different view
of the general question. In 1780, as already mentioned, an order in council of Louis XVI. had declared
illegal the capture by a French cruiser of The John and Sarah, an English vessel coming from Holland,
laden with fresh fish. And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of fish,
having no more crew than was needed for her management and for serving the nets, on a trip of several
days, had been capt- [175 U.S. 677, 695] ured in April, 1801, by a French cruiser, 3 leagues off the
coast of Portugal, the Council of Prizes held that the capture was contrary to 'the principles of humanity
and the maxims of international law,' and decreed that the vessel, with the fish on board, or the net
proceeds of any that had been sold, should be restored to her master. La Nostra Segnora de la Piedad,
25 Merlin, Jurisprudence, Prise Maritime, 3, arts. 1, 3; S. C. 1 Pistoye et Duverdy, Prises Maritimes,
331; 2 De Cussy, Droit Maritime, 166.

The English government, soon afterwards, more than once unqualifiedly prohibited the molestation of
fishing vessels employed in catching and bringing to market fresh fish. On May 23, 1806, it was 'ordered
in council that all fishing vessels under Prussian and other colors, and engaged for the purpose of
catching fish and conveying them fresh to market, with their crews, cargoes, and stores, shall not be
molested on their fishing voyages and bringing the same to market; and that no fishing vessels of this
description shall hereafter be molested. And the Right Honorable the Lords Commissioners of His
Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Judge of the High Court of
Admiralty, are to give the necessary directions herein as to them may respectively appertain.' 5 C. Rob.
408. Again, in the order in council of May 2, 1810, which directed that 'all vessels which shall have
cleared out from any port so far under the control of France or her allies as that British vessels may not
freely trade thereat, and which are employed in the whale fishery, or other fishery of any description,
save as hereinafter excepted, and are returning, or destined to return either to the port from whence
they cleared, or to any other port or place at which the British flag may not freely trade, shall be captured
and condemned together with their stores and cargoes, as prize to the captors,' there were excepted
'vessels employed in catching and conveying fish fresh to market, such vessels not being fitted or
provided for the curing of fish.' Edw. Adm. appx. L.

Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote: 'It has
been usual[175 U.S. 677, 696] in maritime wars to exempt from capture fishing boats and their
cargoes, both from views of mutual accommodation between neighboring countries, and from
tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of
civilized nations, has fallen into disuse; and it is remarkable that both France and England mutually
reproach each other with that breach of good faith which has finally abolished it.' Wheaton, Captures,
chap. 2, 18.

This statement clearly exhibits Wheaton's opinion that the custom had been a general one, as well as
that it ought to remain so. His assumption that it had been abolished by the differences between France
and England at the close of the last century was hardly justified by the state of things when he wrote,
and has not since been borne out.

During the wars of the French Empire, as both French and English writers agree, the coast fisheries
were left in peace. 2 Ortolan, 54; De Boeck, 193; Hall, 148. De Boeck quaintly and truly adds, 'and the
incidents of 1800 and of 1801 had no morrow,-n'eurent pas de lendemain.'

In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing boats from
capture. In proof of this, counsel have referred to records of the Navy Department, which this court is
clearly authorized to consult upon such a question. Jones v. United States, 137 U.S. 202 , 34 L. ed.
691, 11 Sup. Ct. Rep. 80; Underhill v. Hernandez, 168 U.S. 250, 253 , 42 S. L. ed. 456, 457, 18 Sup.
Ct. Rep. 83.

By those records it appears that Commodore Conner, commanding the Home Squadron blockading
the east coast of Mexico, on May 14, 1846, wrote a letter from the ship Cumberland, off Brazos
Santiago, near the southern point of Texas, to Mr. Bancroft, the Secretary of the Navy, inclosing a copy
of the commodore's 'instructions to the commanders of the vessels of the Home Squadron, showing
the principles to be observed in the blockade of the Mexican ports,' one of which was that 'Mexican
boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested;'
and that on June 10, 1846, those instructions were approved by the Navy Department, of which Mr.
Bancroft was still the head, and continued to be until he was appointed Minister to [175 U.S. 677,
697] England in September following. Although Commodore Conner's instructions and the
Department's approval thereof do not appear in any contemporary publication of the government, they
evidently became generally known at the time, or soon after; for it is stated in several treatises on
international law (beginning with Ortolan's second edition, published in 1853) that the United States in
the Mexican war permitted the coast fishermen of the enemy to continue the free exercise of their
industry. 2 Ortolan (2d ed.) 49, note; (4th ed.) 55; 4 Calvo (5th ed.) 2372; De Boeck, 194; Hall (4th ed.)
148.

As qualifying the effect of those statements, the counsel for the United States relied on a proclamation
of Commodore Stockton, commanding the Pacific Squadron, dated August 20, 1846, directing officers
under his command to proceed immediately to blockade the ports of Mazatlan and San Blas, on the
west coast of Mexico, and saying to them, 'All neutral vessels that you may find there you will allow
twenty days to depart; and you will make the blockade absolute against all vessels, except armed
vessels of neutral nations. You will capture all vessels under the Mexican flag that you may be able to
take.' Navy Reports of 1846, pp. 673, 674. But there is nothing to show that Commodore Stockton
intended, or that the government approved, the capture of coast fishing vessels.

On the contrary, General Halleck, in the preface to his work on International Law, or Rules Regulating
the Intercourse of States in Peace and War, published in 1861, says that he began that work, during
the war between the United States and Mexico, 'while serving on the staff of the commander of the
Pacific Squadron' and 'often required to give opinions on questions of international law growing out of
the operations of the war.' Had the practice of the blockading squadron on the west coast of Mexico
during that war, in regard to fishing vessels, differed from that approved by the Navy Department on
the east coast, General Halleck could hardly have failed to mention it, when stating the prevailing
doctrine upon the subject as follows: [175 U.S. 677, 698] 'Fishing boats have also, as a general rule,
been exempted from the effects of hostilities. As early as 1521, while war was raging between Charles
V. and Francis, ambassadors from these two sovereigns met at Calais, then English, and agreed that,
whereas the herring fishery was about to commence, the subjects of both belligerents engaged in this
pursuit should be safe and unmolested by the other party, and should have leave to fish as in time of
peace. In the war of 1800, the British and French governments issued formal instructions exempting
the fishing boats of each other's subjects from seizure. This order was subsequently rescinded by the
British government, on the alleged ground that some French fishing boats were equipped as gunboats,
and that some French fishermen who had been prisoners in England had violated their parole not to
serve, and had gone to join the French fleet at Brest. Such excuses were evidently mere pretexts; and
after some angry discussions had taken place on the subject the British restriction was withdrawn, and
the freedom of fishing was again allowed on both sides. French writers consider this exemption as an
established principle of the modern law of war, and it has been so recognized in the French courts,
which have restored such vessels when captured by French cruisers.' Halleck (1st ed.) chap. 20, 23.

That edition was the only one sent out under the author's own auspices, except an abridgment, entitled
'Elements of International Law and the Law of War,' which he published in 1866, as he said in the
preface, to supply a suitable text-book for instruction upon the subject, 'not only in our colleges, but
also in our two great national schools,-the Military and Naval Academies.' In that abridgment the
statement as to fishing boats was condensed as follows: 'Fishing boats have also, as a general rule,
been exempted from the effects of hostilities. French writers consider this exemption as an established
principle of the modern law of war, and it has been so recognized in the French courts, which have
restored such vessels when captured by French cruisers.' Halleck's Elements, chap. 20, 21.

In the treaty of peace between the United States and Mex- [175 U.S. 677, 699] ico, in 1848, were
inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hostile
molestation or seizure in time of war of the persons, occupations, houses, or goods of fishermen. 9
Stat. at L. 939, 940.

Wharton's Digest of the International Law of the United States, published by authority of Congress in
1886 and 1887, embodies General Halleck's fuller statement, above quoted, and contains nothing else
upon the subject. 3 Whart. Int. Law Dig. 345, p. 315; 2 Halleck (Eng. eds. 1873 and 1878) p. 151.
France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in 1870, by
general orders, forbade her cruisers to trouble the coast fisheries, or to seize any vessel or boat
engaged therein, unless naval or military operations should make it necessary. Calvo, 2372; Hall, 148;
2 Ortolan (4th ed.) 449; 10 Revue de Droit Interantional (1878) 399. Revne de Droit International (1878)
399. her alliance with France and Italy, England did not follow the same line of conduct; and that her
cruisers in the Sea of Azof destroyed the fisheries, nets, fishing implements, provisions, boats, and
even the cabins of inhabitants of the coast. Calvo, 2372. And a Russian writer on prize law remarks
that those depredations, 'having brought ruin on poor fishermen and inoffensive traders, could not but
leave a painful impression on the minds of the population, without impairing in the least the resources
of the Russian government.' Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of the
English naval officers put a different face on the matter, by stating that the destruction in question was
part of a military measure, conducted with the co-operation of the French ships, and pursuant to
instructions of the English admiral 'to clear the seaboard of all fish stores, all fisheries and mills, on a
scale beyond the wants of the neighboring population, and indeed of all things destined to contribute
to the maintenance of the enemy's army in the Crimea;' and that the property destroyed consisted of
large fishing establishments and storehouses of the Russian government, numbers of heavy launches,
and enormous quantities of nets and gear, salted fish, corn, [175 U.S. 677, 700] and other provisions
intended for the supply of the Russian army. United Service Journal of 1855, pt. 3, pp. 108-112.

Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels
employed in catching and bringing to market fresh fish, no instance has been found in which the
exemption from capture of private coast fishing vessels honestly pursuing their peaceful industry has
been denied by England or by any other nation. And the Empire of Japan ( the last state admitted into
the rank of civilized nations), by an ordinance promulgated at the beginning of its war with China in
August, 1894, established prize courts, and ordained that 'the following enemy's vessels are exempt
from detention,' including in the exemption 'boats engaged in coast fisheries,' as well as 'ships engaged
exclusively on a voyage of scientific discovery, philanthrophy, or religious mission.' Takahashi,
International Law, 11, 178.

International law is part of our law, and must be ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of eivilized nations, and, as evidence
of these, to the works of jurists and commentators who by years of labor, research, and experience
have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are
resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought
to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U.S. 113, 163 , 164 S.,
214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.

Wheaton places among the principal sourees international law 'text- writers of authority, showing what
is the approved usage of nations, or the general opinion respecting their mutual conduct, with the
definitions and modifications introduced by general consent.' As to these he forcibly observes: 'Without
wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for
the principles of reason, it may be affirmed that they are gen- [175 U.S. 677, 701] erally impartial in
their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight
of their testimony increases every time that their authority is invoked by statesmen, and every year that
passes without the rules laid down in their works being impugned by the avowal of contrary principles.'
Wheaton, International Law ( 8th ed.), 15.

Chancellor Kent says: 'In the absence of higher and more authoritative sanctions, the ordinances of
foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded
as of great consideration on questions not settled by conventional law. In cases where the principal
jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized
nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the
uniform sense of the established writers on international law.' 1 Kent, Com. 18.

It will be convenient, in the first place, to refer to some leading French treatises on international law,
which deal with the question now before us, not as one of the law of France only, but as one determined
by the general consent of civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855, 'are
good prize. Not all, however; for it results from the unanimous accord of the maritime powers that an
exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy so
long as they devote themselves exclusively to fishing.' 1 Pistoye et Duverdy, tit. 6, chap. 1, p. 314.
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations,-Phases et
Causes Celebres du Droit Maritime des Nations,- published in 1856, affirms in the clearest language
the exemption from capture of fishing boats, saying, in lib. 1, tit. 3, 36, that 'in time of war the freedom
of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle,
they are not subject either to capture or to confiscation;' and that in lib. 2, chap. 20, he will state 'several
facts and several decisions [175 U.S. 677, 702] which prove that the perfect freedom and neutrality of
fishing boats are not illusory.' 1 De Cussy, p. 291. And in the chapter so referred to, entitled De la
Liberte et de la Neutralite Parfaite de la Peche, besides references to the edicts and decisions in France
during the French Revolution, is this general statement: 'If one consulted only positive international
law,'-le droit des gens positif,-(by which is evidently meant international law expressed in treaties,
decrees, or other public acts, as distinguished from what may be implied from custom or usage) 'fishing
boats would be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among
all European nations frees them from it, and several official declarations have confirmed this privilege
in favor of 'a class of men whose hard and ill-rewarded labor, commonly performed by feeble and aged
hands, is so foreign to the operations of war.' 2 De Cussy, 164, 165.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, published in 1864,
after stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize,
says: 'Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these
boats, as well as their crews, are free from capture and exempt from all hostilities. The coast-fishing
industry is, in truth, wholly pacific, and of much less importance in regard to the national wealth that it
may produce than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those
who carry it on, among whom women are often seen, may be called the harvesters of the territorial
seas, since they confine themselves to gathering in the products thereof; they are for the most part
poor families who seek in this calling hardly more than the means of gaining their livelihood.' 2 Ortolan,
51. Again, after observing that there are very few solemn public treaties which make mention of the
immunity of fishing boats in time of war, he says: 'From another point of view the custom which
sanctions this immunity is not so general that it can be considered as making an absolute international
rule; but it has been so often put in practice, and, besides, it accords so well with the rule in use in wars
on [175 U.S. 677, 703] land, in regard to peasants and husbandmen, to whom coast fishermen may
be likened, that it will doubtless continue to be followed in maritime wars to come.' 2 Ortolan, 55.

No international jurist of the present day has a wider or more deserved reputation than Calvo, who,
though writing in French, is a citizen of the Argentine Republic, employed in its diplomatic service
abroad. In the fifth edition of his great work on international law, published in 1896, he observes, in
2366, that the international authority of decisions in particular cases by the prize courts of France, of
England, and of the United States is lessened by the fact that the principles on which they are based
are largely derived from the internal legislation of each country; and yet the peculiar character of
maritime wars, with other considerations, gives to prize jurisprudence a force and importance reaching
beyond the limits of the country in which it has prevailed. He therefore proposes here to group together
a number of particular cases proper to serve as precedents for the solution of grave questions of
maritime law in regard to the capture of private property as prize of war. Immediately, in 2367, he goes
on to say: 'Notwithstanding the hardships to which maritime wars subject private property,
notwithstanding the extent of the recognized rights of belligerents, there are generally exempted, from
seizure and capture, fishing vessels.' In the next section he adds: 'This exception is perfectly
justiciable,-Cette exception est parfaitement justiciable,'-that is to say, belonging to judicial jurisdiction
or cognizance. Littre, Dist. voc. Justiciable; Hans v. Louisiana, 134 U.S. 1, 15 , 33 S. L. ed. 842, 847,
10 Sup. Ct. Rep. 504. Calvo then quotes Ortolan's description, above cited, of the nature of the coast-
fishing industry; and proceeds to refer, in detail, to some of the French precedents, to the acts of the
French and English governments in the times of Louis XVI. and of the French Revolution, to the position
of the United States in the war with Mexico, and of France in later wars, and to the action of British
cruisers in the Crimean war. And he concludes his discussion of the subject, in 2373, by affirming the
exemption of the coast fishery, and pointing out the distinction in this regard between the coast fishery
and [175 U.S. 677, 704] what he calls the great fishery, for cod, whales, or seals, as follows: 'The
privilege of exemption from capture, which is generally acquired by fishing vessels plying their industry
near the coasts, is not extended in any country to ships employed on the high sea in what is called the
great fishery, such as that for the cod, for the whale or the sperm whale, or for the seal or sea calf.
These ships are, in effect, considered as devoted to operations which are at once commercial and
industrial,-Ces navires sont en effect consideres comme adonnes a des operations a la fois
commerciales et industrielles.' The distinction is generally recognized. 2 Ortolan, 54; De Boeck, 196;
Hall, 148. See also The Susa, 2 C. Rob. 251; The Johan, Edw. Adm. 275, and appx. L.

The modern German books on international law, cited by the counsel for the appellants, treat the
custom by which the vessels and implements of coast fishermen are exempt from seizure and capture
as well established by the practice of nations. Heffter, 137; 2 Kalterborn, 237, p. 480; Bluntschli, 667;
Perels, 37, p. 217.

De Boeck, in his work on Enemy Private Property under Enemy's Flag,- De la Propriete Privee Ennemie
sous Pavillon Ennemi,-published in 1882, and the only continental treatise cited by the counsel for the
United States, says in 191: 'A usage very ancient, if not universal, withdraws from the right of capture
enemy vessels engaged in the coast fishery. The reason of this exception is evident; it would have
been too hard to snatch from poor fishermen the means of earning their bread. . . . The exemption
includes the boats, the fishing implements, and the cargo of fish.' Again, in 195: 'It is to be observed
that very few treatises sanction in due form this immunity of the coast fishery. . . . There is, then, only
a custom. But what is its character? Is it so fixed and general that it can be raised to the rank of a
positive and formal rule of international law?' After discussing the statements of other writers, he
approves the opinion of Ortolan (as expressed in the last sentence above quoted from his work), and
says that, at bottom, it differs by a shade only from that formulated by Calvo and by some of the German
jurists, and that 'it is more exact, [175 U.S. 677, 705] without ignoring the imperative character of the
humane rule in question,- elle est plus exacte, sans meconnaitre le caractere imperatif de la regle
d'humanite dont il s'agit.' And in 196 he defines the limits of the rule as follows: 'But the immunity of the
coast fishery must be limited by the reasons which justify it. The reasons of humanity and of
harmlessness-les raisons d'humanite et d'innocuite-which militate in its favor do not exist in the great
fishery, such as the cod fishery; ships engaged in that fishery devote themselves to truly commercial
operations, which employ a large number of seamen. And these same reasons cease to be applicable
to fishing vessels employed for a warlike purpose, to those which conceal arms, or which exchange
signals of intelligence with ships of war; but only those taken in the fact can be rigorously treated; to
allow seizure by way of preventive would open the door to every abuse, and would be equivalent to a
suppression of the immunity.'

Two recent English text-writers cited at the bar (influenced by what Lord Stowell said a cantury since)
hesitate to recognize that the exemption of coast fishing vessels from capture has now become a settled
rule of international law. Yet they both admit that there is little real difference in the views, or in the
practice, of England and of other maritime nations; and that no civilized nation at the present day would
molest coast fishing vessels so long as they were peaceably pursuing their calling and there was no
danger that they or their crews might be of military use to the enemy. Hall, in 148 of the fourth edition
of his Treatise on International Law, after briefly sketching the history of the positions occupied by
France and England at different periods, and by the United States in the Mexican war, goes on to say:
'In the foregoing facts there is nothing to show that much real difference has existed in the practice of
the maritime countries. England does not seem to have been unwilling to spare fishing vessels so long
as they are harmless, and it does not appear that any state has accorded them immunity under
circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting
them as a general rule, and would cap- [175 U.S. 677, 706] ture them so soon as any danger arose
that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to
grant them a more distinct exemption.' So, T. J. Lawrence, in 206 of his Principles of International Law,
says: 'The difference between the English and the French view is more apparent than real; for no
civilized belligerent would now capture the boats of fishermen plying their avocation peaceably in the
territorial waters of their own state; and no jurist would seriously argue that their immunity must be
respected if they were used for warlike purposes, as were the smacks belonging to the northern ports
of France when Great Britain gave the order to capture them in 1800.'

But there are writers of various maritime countries, not yet cited, too important to be passed by without
notice.
Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval and in the colonial
service of his country, in his Manual of International Law for the Use of Navies, Colonies, and
Consulates, published in 1882, writes: 'An exception to the usage of capturing enemy's private vessels
at sea is the coast fishery. . . . This principle of immunity from capture of fishing boats is generally
adopted by all maritime powers, and in actual warfare they are universally spared so long as they
remain harmless.' 2 Ferguson, 212.

Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for Naval Officers, published at Vienna
in 1872 under the auspices of Admiral Tegetthoff, says: 'Regarding the capture of enemy property, an
exception must be mentioned, which is a universal custom. Fishing vessels which belong to the
adjacent coast, and whose business yields only a necessary livelihood, are, from considerations of
humanity, universally excluded from capture.' 1 Attlmayr, 61.

Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in his Elementary Treatise on
Maritime International Law, adopted by royal order as a text-book in the naval schools of Spain, and
published at Madrid in 1873, concludes his chapter 'Of the lawfulness of prizes' with these words: 'It
remains to be added that the custom of all civilized peoples excludes from capture and from all kind of
hostility the [175 U.S. 677, 707] fishing vessels of the enemy's coasts, considering this industry as
absolutely inoffensive, and deserving, from its hardships and usefulness, of this favorable exception. It
has been thus expressed in very many international conventions, so that it can be deemed an
incontestable principle of law, at least among enlightened nations.' Negrin, tit. 3, chap. 1, 310.

Carlos Testa, captain in the Portugese Navy and professor in the naval school at Lisbon, in his work
on Public International Law, published in French at Paris in 1886, when discussing the general right of
capturing enemy ships, says: 'Nevertheless, in this, customary law establishes an exception of
immunity in favor of coast fishing vessels. Fishing is so peaceful an industry, and is generally carried
on by so poor and so hardworking a class of men, that it is likened, in the territorial waters of the
enemy's country, to the class of husbandmen who gather the fruits of the earth for their livelihood. The
examples and practice generally followed establish this humane and beneficent exception as an
international rule, and this rule may be considered as adopted by customary law and by all civilized
nations.' Testa, pt. 3, chap. 2, in 18 Bibliotheque International et Diplomatique, pp. 152, 153.

No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore, in the enlarged
edition of his exhaustive work on Public International Law, published at Paris in 1885-6, saying: 'The
vessels of fishermen have been generally declared exempt from confiscation, because of the eminently
peaceful object of their humble industry, and of the principles of equity and humanity. The exemption
includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This usage,
eminently humane, goes back to very ancient times; and although the immunity of the fishery along the
coasts may not have been sanctioned by treaties, yet it is considered to-day as so defintely established
that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule
of international law, and is generally respected by the nations. Consequently we shall lay down the
following rule: (a) Vessels belonging to citizens of the enemy state, and devoted to fish- [175 U.S. 677,
708] ing along the coasts, cannot be subject to capture; (b) Such vessels, however, will lose all right
of exemption, when employed for a warlike purpose; (c) there may, nevertheless, be subjected to
capture vessels devoted to the great fishery in the ocean, such as those employed in the whale fishery,
or in that for seals or sea calves.' 3 Fiore, 1421

This review of the precedents and authorities on the subject appears to us abundantly to demonstrate
that at the present day, by the general consent of the civilized nations of the world, and independently
of any express treaty or other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt
from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information to the enemy; nor when military or naval
operations create a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales
or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured
and made a regular article of commerce.

This rule of international law is one which prize courts administering the law of nations are bound to
take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own
government in relation to the matter.

Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from
capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Calvo, 2368. Nor
are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous
one, should be recognized and declared by a prize court. [175 U.S. 677, 709] By the practice of all
civilized nations, vessels employed only for the purposes of discovery or science are considered as
exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the
government sending out such an expedition to give notice to other powers; but it is not essential. 1
Kent, Com. 91, note; Halleck, chap. 20, 22; Calvo, 2376; Hall, 138.

In 1813, while the United States were at war with England, an American vessel on her voyage from
Italy to the United States was captured by an English ship, and brought into Halifax, in Nova Scotia,
and, with her cargo, condemned as lawful prize by the court of vice admiralty there. But a petition for
the restitution of a case of paintings and engravings which had been presented to and were owned by
the Academy of Arts in Philadelphia was granted by Dr. Croke, the judge of that court, who said: 'The
same law of nations, which prescribes that all property belonging to the enemy shall be liable to
confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are
admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as
entitled to favor and protection. They are considered, not as the peculium of this or of that nation, but
as the property of mankind at large, and as belonging to the common interests of the whole species.'
And he added that there had been 'innumerable cases of the mutual exercise of this courtesy between
nations in former wars.' The Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.

In 1861, during the war of the Rebellion, a similar decision was made in the district court of the United
States for the eastern district of Pennsylvania, in regard to two cases of books belonging and consigned
to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the
custody of the marshal and restored to the agent of the university, said: 'Though this claimant, as the
resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure
in books, the purpose of the shipment in question gives to it a different [175 U.S. 677, 710] character.
The United States, in prosecuting hostilities for the restoration of their constitutional authority, are
compelled incidentally to confiscate property captured at sea, of which the proceeds would otherwise
increase the wealth of that district. But the United States are not at war with literature in that part of
their territory.' He then referred to the decision in Nova Scotia, and to the French decisions upon cases
of fishing vessels, as precedents for the decree which he was about to pronounce; and he added that,
without any such precedents, he should have had no difficulty in liberating these books. The Amelia,1
4 Phila. 417.

In Brown v. United States, 8 Cranch, 110, 3 L. ed. 504, there are expressions of Chief Justice Marshall
which, taken by themselves, might seem inconsistent with the position above maintained, of the duty
of a prize court to take judicial notice of a rule of international law, established by the general usage of
civilized nations, as to the kind of property subject to capture. But the actual decision in that case, and
the leading reasons on which it was based, appear to us rather to confirm our position. The principal
question there was whether personal property of a British subject, found on land in the United States
at the beginning of the last war with Great Britain, could lawfully be condemned as enemy's property,
on a libel filed by the attorney of the United States, without a positive act of Congress. The conclusion
of the court was 'that the power of confiscating enemy property is in the legislature, and that the
legislature has not yet declared its will to confiscate property which was within our territory at the
declaration of war.' 8 Cranch, 129, 3 L. ed. 510, 511. In showing that the declaration of war did not, of
itself, vest the Executive with authority to order such property to be confiscated, the Chief Justice relied
on the modern usages of nations, saying: 'The universal practice of forbearing to seize and confiscate
debts and credits, the principle universally received that the right to them revives on the restoration of
peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers
the right of confiscation,' and again: 'The modern rule, then, would seem to be that tangible
property [175 U.S. 677, 711] belonging to an enemy, and found in the country at the commencement
of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is
inserted stipulating for the right to withdraw such property.' 8 Cranch, 123, 125, 3 L. ed. 509. The
decision that enemy property on land, which by the modern usage of nations is not subject to capture
as prize of war, cannot be condemned by a prize court, even by direction of the Executive, without
express authority from Congress, appears to us to repel any inference that coast fishing vessels, which
are exempt by the general consent of civilized nations from capture, and which no act of Congress or
order of the President has expressly authorized to be taken and confiscated, must be condemned by a
prize court, for want of a distinct exemption in a treaty or other public act of the government.

To this subject in more than one aspect are singularly applicable the words uttered by Mr. Justice
Strong, speaking for this court: 'Undoubtedly no single nation can change the law of the sea. The law
is of universal obligation and no statute of one or two nations can create obligations for the world. Like
all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not
because it was prescribed by any superior power, but because it has been generally accepted as a rule
of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the
ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent
sanction of those nations who may be said to constitute the commercial world. Many of the usages
which prevail, and which have the force of law, doubtless originated in the positive prescriptions of
some single state, which were at first of limited effect, but which, when generally accepted, became of
universal obligation.' 'This is not giving to the statutes of any nation extraterritorial effect. It is not treating
them as general maritime laws; but it is recognition of the historical fact that by common consent of
mankind these rules have been acquiesced in as of general obligation. Of that fact, we think, we may
take judicial notice. Foreign municipal laws [175 U.S. 677, 712] must indeed be proved as facts, but it
is not so with the law of nations.' The Scotia, 14 Wall. 170, 187, 188, sub nom. Sears v. The Scotia, 20
L. ed. 822, 825, 826.

The position taken by the United States during the recent war with Spain was quite in accord with the
rule of international law, now generally recognized by civilized nations, in regard to coast fishing
vessels.

On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson, commanding the
North Atlantic Squadron, to 'immediately institute a blockade of the north coast of Cuba, extending from
Cardenas on the east to Bahia Honda on the west.' Bureau of Navigation Report of 1898, appx. 175.
The blockade was immediately instituted accordingly. On April 22 the President issued a proclamation
declaring that the United States had instituted and would maintain that blockade, 'in pursuance of the
laws of the United States, and the law of nations applicable to such cases.' 30 Stat. at L. 1769. And by
the act of Congress of April 25, 1898, chap. 189, it was declared that the war between the United States
and Spain existed on that day, and had existed since and including April 21, 30 Stat. at L. 364.

On April 26, 1898, the President issued another proclamation which, after reciting the existence of the
war as declared by Congress, contained this further recital: 'It being desirable that such war should be
conducted upon principles in harmony with the present views of nations and sanctioned by their recent
practice.' This recital was followed by specific declarations of certain rules for the conduct of the war by
sea, making no mention of fishing vessels. 30 Stat. at L. 1770. But the proclamation clearly manifests
the general policy of the government to conduct the war in accordance with the principles of
international law sanctioned by the recent practice of nations.

On April 28, 1898 (after the capture of the two fishing vessels now in question), Admiral Sampson
telegraphed to the Secretary of the Navy as follows: 'I find that a large number of fishing schooners are
attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. They are
generally manned by excellent seamen, belonging [175 U.S. 677, 713] to the maritime inscription of
Spain, who have already served in the Spanish navy, and who are liable to further service. As these
trained men are naval reserves, most valuable to the Spaniards as artillerymen, either afloat or ashore,
I recommend that they should be detained prisoners of war, and that I should be authorized to deliver
them to the commanding officer of the army at Key West.' To that communication the Secretary of the
Navy, on April 30, 1898, guardedly answered: 'Spanish fishing vessels attempting to violate blockade
are subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be
detained.' Bureau of Navigation Report of 1898, appx. 178. The admiral's despatch assumed that he
was not authorized, without express order, to arrest coast fishermen peaceably pursuing their calling;
and the necessary implication and evident intent of the response of the Navy Department were that
Spanish coast fishing vessels and their crews should not be interfered with, so long as they neither
attempted to violate the blockade, nor were considered likely to aid the enemy.

The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden, sailing under the
Spanish flag, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba. Her
crew consisted of but three men, including the master, and, according to a common usage in coast
fisheries, had no interest in the vessel, but were entitled to two thirds of her catch, the other third
belonging to her Spanish owner, who, as well as the crew, resided in Havana. On her last voyage, she
sailed from Havana along the coast of Cuba, about 200 miles, and fished for twenty-five days off the
cape at the west end of the island, within the territorial waters of Spain, and was going back to Havana,
with her cargo of live fish, when she was captured by one of the blockading squadron, on April 25,
1898. She had no arms or ammunition on board; she had no knowledge of the blockade, or even of the
war, until she was stopped by a blockading vessel; she made no attempt to run the blockade, and no
resistance at the time of the capture; nor was there any ev- [175 U.S. 677, 714] idence whatever of
likelihood that she or her crew would aid the enemy.

In the case of the Lola, the only differences in the facts were that she was a schooner of 35 tons burden,
and had a crew of six men, including the master; that after leaving Havana, and proceeding some 200
miles along the coast of Cuba, she went on, about 100 miles farther, to the coast of Yucatan, and there
fished for eight days; and that, on her return, when near Bahia Honda, on the coast of Cuba, she was
captured, with her cargo of live fish, on April 27, 1898. These differences afford no ground for
distinguishing the two cases.

Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly
engaged in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the
vessel, and received, in return for their toil and enterprise, two thirds of her catch, the other third going
to her owner by way of compensation for her use. Each vessel went out from Havana to her fishing
ground, and was captured when returning along the coast of Cuba. The cargo of each consisted of
fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the vessels
extended her fishing trip across the Yucatan channel and fished on the coast of Yucatan, we cannot
doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the rule
of international law.

The two vessels and their cargoes were condemned by the district court as prize of war; the vessels
were sold under its decrees; and it does not appear what became of the fresh fish of which their cargoes
consisted.

Upon the facts proved in either case, it is the duty of this court, sitting as the highest prize court of the
United States, and administering the law of nations, to declare and adjudge that the capture was
unlawful and without probable cause; and it is therefore, in each case,--

Ordered, that the decree of the District Court be reversed, and the proceeds of the sale of the vessel,
together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and
costs. [175 U.S. 677, 715]

Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting:

The district court held these vessels and their cargoes liable because not 'satisfied that as a matter of
law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from
seizure.'

This court holds otherwise, not because such exemption is to be found in any treaty, legislation,
proclamation, or instruction granting it, but on the ground that the vessels were exempt by reason of an
established rule of international law applicable to them, which it is the duty of the court to enforce.

I am unable to conclude that there is any such established international rule, or that this court can
properly revise action which must be treated as having been taken in the ordinary exercise of discretion
in the conduct of war.

In cannot be maintained 'that modern usage constitutes a rule which acts directly upon the thing itself
by its own force, and not through the sovereign power.' That position was disallowed in Brown v. United
States, 8 Cranch, 110, 128, 3 L. ed. 510, and Chief Justice Marshall said: 'This usage is a guide which
the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and
even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded
by him without obloquy, yet it may be disregarded. The rule is in its nature flexible. It is subject to infinite
modification. It is not an immutable rule of law, but depends on political considerations which may
continually vary.'

The question in that case related to the confiscation of the property of the enemy on land within our
own territory, and it was held that property so situated could not be confiscated without an act of
Congress. The Chief Justice continued: 'Commercial nations in the situation of the United States have
always a considerable quantity of property in the possession of their neighbors. When war breaks out,
the question, What shall be done with enemy property in our country?-is a [175 U.S. 677,
716] question rather of policy than of law. The rule which we apply to the property of our enemy will
be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the
consideration of a department which can modify it at will; not for the consideration of a department
which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of
the executive or judiciary.'

This case involves the capture of enemy's property on the sea, and executive action, and if the position
that the alleged rule proprio vigore limits the sovereign power in war be rejected, then I understand the
contention to be that, by reason of the existence of the rule, the proclamation of April 26 must be read
as if it contained the exemption in terms, or the exemption must be allowed because the capture of
fishing vessels of this class was not specifically authorized.

The preamble to the proclamation stated, it is true, that it was desirable that the war 'should be
conducted upon principles in harmony with the present views of nations and sanctioned by their recent
pratice,' but the reference was to the intention of the government 'not to resort to privateering, but to
adhere to the rules of the Declaration of Paris;' and the proclamation spoke for itself. The language of
the preamble did not carry the exemption in terms, and the real question is whether it must be allowed
because not affirmatively withheld, or, in other words, because such captures were not in terms
directed.

These records show that the Spanish sloop Paquete Habana 'was captured as a prize of war by the U.
S. S. Castine' on April 25, and 'was delivered' by the Castine's commander 'to Rear Admiral Wm. T.
Sampson ( commanding the North Atlantic Squardron),' and therequpon 'turned over' to a prize master
with instructions to proceed to Key West.

And that the Spanish schooner Lola 'was captured as a prize of war by the U. S. S. Dolphin,' April 27,
and 'was delivered' by the Dolphin's commander 'to Rear Admiral Wm. T. Sampson (commanding the
North Atlantic Squardron),' and thereupon 'turned over' to a prize master with instructions to proceed
to Key West. [175 U.S. 677, 717] That the vessels were accordingly taken to Key West and there
libeled, and that the decrees of condemnation were entered against them May 30.

It is impossible to concede that the Admiral ratified these captures in disregard of established
international law and the proclamation, or that the President, if he had been of opinion that there was
any infraction of law or proclamation, would not have intervened prior to condemnation.

The correspondence of April 28, 30, between the Admiral and the Secretary of the Navy, quoted from
in the principal opinion, was entirely consistent with the validity of the captures.

The question put by the Admiral related to the detention as prisoners of war of the persons manning
the fishing schooners 'attempting to get into Havana.' Noncombatants are not so detained except for
special reasons. Sailors on board enemy's trading vessels are made prisoners because of their fitness
for immediate use on ships of war. Therefore the Admiral pointed out the value of these fishing seamen
to the enemy, and advised their detention. They Secretary replied that if the vessels referred to were
'attempting to violate blockade' they were subject 'with crew' to capture, and also that they might be
detained if 'considered likely to aid enemy.' The point was whether these crews should be made
prisoners of war. Of course they would be liable to be if involved in the guilt of blockade running, and
the Secretary agreed that they might be on the other ground in the Admiral's discretion.
All this was in accordance with the rules and usages of international law, with which, whether in peace
or war, the naval service has always been necessarily familiar.

I come then to examine the proposition 'that at the present day, by the general consent of the civilized
nations of the world, and independently of any express treaty or other public act, it is an established
rule of international law, founded on considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements
and supplies [175 U.S. 677, 718] cargoes and crews, undarmed, and honestly pursuing their peaceful
calling of catching and bringing in of fresh fish, are exempt from capture as prize of war.'

This, it is said, is a rule 'which prize courts, administering the law of nations, are bound to take judicial
notice of, and to give effect to, in the absence of treaty or other public act of their own government.'

At the same time it is admitted that the alleged exemption does not apply 'to coast fishermen or their
vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy;
nor when military or naval operations create a necessity to which all private interests must give way;'
and, further, that the exemption has not 'been extended to ships or vessels employed on the high sea
in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or
otherwise cured and made a regular article of commerce.'

It will be perceived that the exceptions reduce the supposed rule to very narrow limits, requiring a
careful examination of the facts in order to ascertain its applicability; and the decision appears to me to
go altogether too far in respect of dealing with captures directed or ratified by the officer in command.

But were these two vessels within the alleged exemption? They were of 25 and 35 tons burden
respectively. They carried large tanks, in which the fish taken were kept alive. They were owned by
citizens of Havana, and tha owners and the masters and crew were to be compensated by shares of
the catch. One of them had been 200 miles from Havana, off Cape San Antonio, for twenty-five days,
and the other for eight days off the coast of Yucatan. They belonged, in short, to the class of fishing or
coasting vessels of from 5 to 20 tons burden, and from 20 tons upwards, which, when licensed or
enrolled as prescribed by the Revised Statutes. are declared to be vessels of the United States, and
the shares of whose men, when the vessels are employed in fishing, are regulated by statute. They
were engaged in what were substantially commercial ventures, and the mere fact that the fish were
kept alive by contrivances [175 U.S. 677, 719] for that purpose-a practice of considerable antiquity-
did not render them any the less an article of trade than if they had been brought in cured.

I do not think that, under the circumstances, the considerations which have operated to mitigate the
evils of war in respect of individual harvesters of the soil can properly be invoked on behalf of these
hired vessels, as being the implements of like harvesters of the sea. Not only so as to the owners, but
as to the masters and crews. The principle which exempts the husbandman and his instruments of
labor exempts the industry in which he is engaged, and is not applicable in protection of the continuance
of transactions of such character and extent as these.

In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right, and it is
extended or denied as the exigency is believed to demand.

It is, said Sir William Scott, 'a rule of comity only, and not of legal decision.'

The modern view is thus expressed by Mr. Hall: 'England does not seem to have been unwilling to
spare fishing vessels so long as they are harmless, and it does not appear that any state has accorded
them immumty under circumstances of inconvenience to itself. It is likely that all nations would now
refrain from molesting them as a general rule, and would capture them so soon as any danger arose
that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to
grant them a more distinct exemption.'

In the Crimean war, 1854-55, none of the orders in council, in terms, either exempted or included fishing
vessels, yet the allied squadrons swept the Sea of Azof of all craft capable of furnishing the means of
transportation, and the English admiral in the Gulf of Finland directed the destruction of all Russian
coasting vessels, not of sufficient value to be detained as prizes, except 'boats or small craft which may
be found empty at anchor, and not trafficking.'
It is difficult to conceive of a law of the sea of universal obligation to which Great Britain has not acceded.
And I[175 U.S. 677, 720] am not aware of adequate foundation for imputing to this country the
adoption of any other than the English rule.

In his Lectures on International Law at the Naval Law College the late Dr. Freeman Snow laid it down
that the exemption could not be asserted as a rule of international law. These lectures were edited by
Commodore Stockton and published under the direction of the Secretary of the Navy in 1895, and, by
that department, in a second edition, in 1898, so that in addition to the well-known merits of their author
they possess the weight to be attributed to the official imprimatur. Neither our treaties nor settled
practice are opposed to that conclusion.

In view of the circumstances surrounding the breaking out of the Mexican war, Commodore Conner,
commanding the Home Squadron, on May 14, 1846, directed his officers, in respect of blockade, not
to molest 'Mexican boats engaged exclusively in fishing on any part of the coast,' presumably small
boats in proximity to the shore; while on the Pacific coast Commodore Stockton in the succeeding
August ordered the capture of 'all vessels under the Mexican flag.'

The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with Mexico, in exempting fishermen,
'unarmed and inhabiting unfortified towns, villages, or places,' did not exempt fishing vessels from
seizure as prize; and these captures evidence the convictions entertained and acted on in the late war
with Spain.

In is needless to review the speculations and repetitions of the writers on international law. Ortolan, De
Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to
create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations
may be persuasive, but not authoritative.

In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He
is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether
such immunity as may have been usually extended. [175 U.S. 677, 721] Exemptions may be
designated in advance, or granted according to circumstances, but carrying on was involves the
inflication of the hardships of war, at least to the extent that the seizure or destruction of enemy's
property on sea need not be specifically authorized in order to be accomplished.

Being of opinion that these vessels were not exempt as matter of law, I am constrained to dissent from
the opinion and judgment of the court; and my brothers Harlan and McKenna concur in this dissent.

(January 29, 1900.)

The court, in each case, on motion of the Solicitor General in behalf of the United States, and after
argument of counsel thereon, and to secure the carrying out of the opinion and decree of this court
according to their true meaning and intent, ordered that the decree be so modified as to direct that the
damages to be allowed shall be compensatory only, and not punitive.

SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI,

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the Chief of Staff of the Armed forces
of the Philippines with having unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high crimes against noncombatant
civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war"
comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of
the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating
in the prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of
our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare
and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence
petitioner argues "That in view off the fact that this commission has been empanelled by virtue of an
unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner."

Second. That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of
our personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being
a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution
provides in its section 3, that

The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and offenses consequential
and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68
the President of the Philippines has acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander
in chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42
Off. Gaz., 664) 1 when we said

War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An
importance incident to a conduct of war is the adoption of measure by the military command not
only to repel and defeat the enemies but to seize and subject to disciplinary measure those
enemies who in their attempt to thwart or impede our military effort have violated the law of war.
(Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission
for the trial and punishment of war criminals is an aspect of waging war. And in the language of
a writer a military commission has jurisdiction so long as a technical state of war continues. This
includes the period of an armistice or military occupation up to the effective of a treaty of peace
and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military
Tribunals, America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement
of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines
is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them for our Constitution has been deliberately general and extensive in
its scope and is not confined to the recognition of rule and principle of international law as continued
inn treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
under the sovereignty of United States and thus we were equally bound together with the United States
and with Japan to the right and obligation contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption of full sovereignty. If at all our
emergency as a free state entitles us to enforce the right on our own of trying and punishing those who
committed crimes against crimes against our people. In this connection it is well to remember what we
have said in the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then Commonwealth
because it is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert
Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in
Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors
is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law
and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive
Order No. 68 which provides for the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which requires that counsel appearing before
said commission must be attorneys qualified to practice law in the Philippines in accordance with the
Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually military
personnel who are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is
only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment of
her enemies. The least that we could do in the spirit of comity is to allow them representation in said
trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality
of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its
people have been equally if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for our Republic that a leader
nation should submit the vindication of the honor of its citizens and its government to a military tribunal
of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its
custody, this Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

CO KIM CHAM (alias CO KIM CHAM), petitioner, vs. EUSEBIO VALDEZ TAN KEH and ARSENIO
P. DIZON, Judge of First Instance of Manila, respondents.1

This petition for mandamus in which petitioner prays that the respondent judge of the lower court be
ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under the
regime of the so-called Republic of the Philippines established during the Japanese military occupation
of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said case on the
ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect
of invalidating and nullifying all judicial proceedings and judgements of the court of the Philippines under
the Philippine Executive Commission and the Republic of the Philippines established during the
Japanese military occupation, and that, furthermore, the lower courts have no jurisdiction to take
cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the
Philippines in the absence of an enabling law granting such authority. And the same respondent, in his
answer and memorandum filed in this Court, contends that the government established in the
Philippines during the Japanese occupation were no de facto governments.

On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day
their Commander in Chief proclaimed "the Military Administration under law over the districts occupied
by the Army." In said proclamation, it was also provided that "so far as the Military Administration
permits, all the laws now in force in the Commonwealth, as well as executive and judicial institutions,
shall continue to be effective for the time being as in the past," and "all public officials shall remain in
their present posts and carry on faithfully their duties as before."

A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief
of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof,
was instructed to proceed to the immediate coordination of the existing central administrative organs
and judicial courts, based upon what had existed therefore, with approval of the said Commander in
Chief, who was to exercise jurisdiction over judicial courts.

The Chairman of the Executive Commission, as head of the central administrative organization, issued
Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the
Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the peace and municipal
courts under the Commonwealth were continued with the same jurisdiction, in conformity with the
instructions given to the said Chairman of the Executive Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's Order No. 3 of February 20, 1942, concerning basic
principles to be observed by the Philippine Executive Commission in exercising legislative, executive
and judicial powers. Section 1 of said Order provided that "activities of the administration organs and
judicial courts in the Philippines shall be based upon the existing statutes, orders, ordinances and
customs. . . ."

On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that functioned
during the Philippine Executive Commission, and in the laws they administered and enforced.

On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued
a proclamation to the People of the Philippines which declared:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having legal
and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and
control;

2. That the laws now existing on the statute books of the Commonwealth of the Philippines and
the regulations promulgated pursuant thereto are in full force and effect and legally binding upon
the people in areas of the Philippines free of enemy occupation and control; and

3. That all laws, regulations and processes of any other government in the Philippines than that
of the said Commonwealth are null and void and without legal effect in areas of the Philippines
free of enemy occupation and control.

On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General
MacArthur, on behalf of the Government of the United States, solemnly declared "the full powers and
responsibilities under the Constitution restored to the Commonwealth whose seat is here established
as provided by law."
In the light of these facts and events of contemporary history, the principal questions to be resolved in
the present case may be reduced to the following:(1) Whether the judicial acts and proceedings of the
court existing in the Philippines under the Philippine Executive Commission and the Republic of the
Philippines were good and valid and remained so even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces; (2)Whether the proclamation issued on October
23, 1944, by General Douglas MacArthur, Commander in Chief of the United States Army, in which he
declared "that all laws, regulations and processes of any of the government in the Philippines than that
of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of
enemy occupation and control," has invalidated all judgements and judicial acts and proceedings of the
said courts; and (3) If the said judicial acts and proceedings have not been invalidated by said
proclamation, whether the present courts of the Commonwealth, which were the same court existing
prior to, and continued during, the Japanese military occupation of the Philippines, may continue those
proceedings pending in said courts at the time the Philippines were reoccupied and liberated by the
United States and Filipino forces, and the Commonwealth of the Philippines were reestablished in the
Islands.

We shall now proceed to consider the first question, that is, whether or not under the rules of
international law the judicial acts and proceedings of the courts established in the Philippines under the
Philippine Executive Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the Philippines by the United States
and Filipino forces.

1. It is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these Islands under the names of the
Philippine Executive Commission and Republic of the Philippines during the Japanese military
occupation or regime were de facto governments. If they were, the judicial acts and proceedings of
those governments remain good and valid even after the liberation or reoccupation of the Philippines
by the American and Filipino forces.

There are several kinds of de facto governments. The first, or government de facto in a proper legal
sense, is that government that gets possession and control of, or usurps, by force or by the voice of
the majority, the rightful legal governments and maintains itself against the will of the latter, such as the
government of England under the Commonwealth, first by Parliament and later by Cromwell as
Protector. The second is that which is established and maintained by military forces who invade and
occupy a territory of the enemy in the course of war, and which is denominated a government of
paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the
war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United
States. And the third is that established as an independent government by the inhabitants of a country
who rise in insurrection against the parent state of such as the government of the Southern Confederacy
in revolt not concerned in the present case with the first kind, but only with the second and third kinds
of de facto governments.

Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the
case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called
also by publicists a government de facto, but which might, perhaps, be more aptly denominated a
government of paramount force. Its distinguishing characteristics are (1), that its existence is
maintained by active military power with the territories, and against the rightful authority of an
established and lawful government; and (2), that while it exists it necessarily be obeyed in civil matters
by private citizens who, by acts of obedience rendered in submission to such force, do not become
responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government.
Actual governments of this sort are established over districts differing greatly in extent and conditions.
They are usually administered directly by military authority, but they may be administered, also, civil
authority, supported more or less directly by military force. . . . One example of this sort of government
is found in the case of Castine, in Mine, reduced to British possession in the war of 1812 . . . U.
S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico, occupied during the war
with Mexico, by the troops of the United States . . . Fleming vs. Page (9 Howard, 614). These were
cases of temporary possessions of territory by lawfull and regular governments at war with the country
of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section III of the
Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on
the same subject of said Section III provides "the authority of the legislative power having actually
passed into the hands of the occupant, the latter shall take steps in his power to reestablish and insure,
as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country."

According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is
burdened with the duty to insure public order and safety during his military occupation, he possesses
all the powers of a de facto government, and he can suspended the old laws and promulgate new ones
and make such changes in the old as he may see fit, but he is enjoined to respect, unless absolutely
prevented by the circumstances prevailing in the occupied territory, the municipal laws in force in the
country, that is, those laws which enforce public order and regulate social and commercial life of the
country. On the other hand, laws of a political nature or affecting political relations, such as, among
others, the right of assembly, the right to bear arms, the freedom of the press, and the right to travel
freely in the territory occupied, are considered as suspended or in abeyance during the military
occupation. Although the local and civil administration of justice is suspended as a matter of course as
soon as a country is militarily occupied, it is not usual for the invader to take the whole administration
into his own hands. In practice, the local ordinary tribunals are authorized to continue administering
justice; and judges and other judicial officers are kept in their posts if they accept the authority of the
belligerent occupant or are required to continue in their positions under the supervision of the military
or civil authorities appointed, by the Commander in Chief of the occupant. These principles and practice
have the sanction of all publicists who have considered the subject, and have been asserted by the
Supreme Court and applied by the President of the United States.

The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2,
p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military
possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore,
do not look to the Constitution or political institutions of the conqueror, for authority to establish a
government for the territory of the enemy in his possession, during its military occupation, nor for the
rules by which the powers of such government are regulated and limited. Such authority and such rules
are derived directly from the laws war, as established by the usage of the of the world, and confirmed
by the writings of publicists and decisions of courts in fine, from the law of nations. . . . The municipal
laws of a conquered territory, or the laws which regulate private rights, continue in force during military
occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government, and can at his pleasure either change the
existing laws or make new ones."

And applying the principles for the exercise of military authority in an occupied territory, which were
later embodied in the said Hague Conventions, President McKinley, in his executive order to the
Secretary of War of May 19,1898, relating to the occupation of the Philippines by United States forces,
said in part: "Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the conquered territory,
such as affect private rights of person and property and provide for the punishment of crime, are
considered as continuing in force, so far as they are compatible with the new order of things, until they
are suspended or superseded by the occupying belligerent; and in practice they are not usually
abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This enlightened practice is, so far as possible, to be
adhered to on the present occasion. The judges and the other officials connected with the
administration of justice may, if they accept the authority of the United States, continue to administer
the ordinary law of the land as between man and man under the supervision of the American
Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)

As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case
of Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de
facto government. In that case, it was held that "the central government established for the insurgent
States differed from the temporary governments at Castine and Tampico in the circumstance that its
authority did no originate in lawful acts of regular war; but it was not, on the account, less actual or less
supreme. And we think that it must be classed among the governments of which these are examples.
...

In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing
the validity of the acts of the Confederate States, said: "The same general form of government, the
same general laws for the administration of justice and protection of private rights, which had existed
in the States prior to the rebellion, remained during its continuance and afterwards. As far as the Acts
of the States do not impair or tend to impair the supremacy of the national authority, or the just rights
of citizens under the Constitution, they are, in general, to be treated as valid and binding. As we said in
Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrection and war
did not loosen the bonds of society, or do away with civil government or the regular administration of
the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property
protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of
property regulated, precisely as in the time of peace. No one, that we are aware of, seriously questions
the validity of judicial or legislative Acts in the insurrectionary States touching these and kindered
subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the
National Government, and did not impair the rights of citizens under the Constitution'. The same
doctrine has been asserted in numerous other cases."

And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or
was done in respect of such matters under the authority of the laws of these local de facto governments
should not be disregarded or held to be invalid merely because those governments were organized in
hostility to the Union established by the national Constitution; this, because the existence of war
between the United States and the Confederate States did not relieve those who are within the
insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society nor do away
with civil government or the regular administration of the laws, and because transactions in the ordinary
course of civil society as organized within the enemy's territory although they may have indirectly or
remotely promoted the ends of the de facto or unlawful government organized to effect a dissolution of
the Union, were without blame 'except when proved to have been entered into with actual intent to
further invasion or insurrection:'" and "That judicial and legislative acts in the respective states
composing the so-called Confederate States should be respected by the courts if they were not hostile
in their purpose or mode of enforcement to the authority of the National Government, and did not impair
the rights of citizens under the Constitution."

In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized
by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and therefore a de facto government of the
second kind. It was not different from the government established by the British in Castine, Maine, or
by the United States in Tampico, Mexico. As Halleck says, "The government established over an
enemy's territory during the military occupation may exercise all the powers given by the laws of war to
the conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of
little consequence whether such government be called a military or civil government. Its character is
the same and the source of its authority the same. In either case it is a government imposed by the
laws of war, and so far it concerns the inhabitants of such territory or the rest of the world, those laws
alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run by Filipinos and not by Japanese
nationals, is of no consequence. In 1806, when Napoleon occupied the greater part of Prussia, he
retained the existing administration under the general direction of a french official (Langfrey History of
Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading France, authorized the
local authorities to continue the exercise of their functions, apparently without appointing an English
superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they invaded
France in 1870, appointed their own officials, at least in Alsace and Lorraine, in every department of
administration and of every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p. 505, note
2.)

The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a government
established by the belligerent occupant or the Japanese forces of occupation. It was of the same
character as the Philippine Executive Commission, and the ultimate source of its authority was the
same the Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy duress,
a so-called government styled as the 'Republic of the Philippines' was established on October 14, 1943,
based upon neither the free expression of the people's will nor the sanction of the Government of the
United States." Japan had no legal power to grant independence to the Philippines or transfer the
sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino people, before
its military occupation and possession of the Islands had matured into an absolute and permanent
dominion or sovereignty by a treaty of peace or other means recognized in the law of nations. For it is
a well-established doctrine in International Law, recognized in Article 45 of the Hauge Conventions of
1907 (which prohibits compulsion of the population of the occupied territory to swear allegiance to the
hostile power), the belligerent occupation, being essentially provisional, does not serve to transfer
sovereignty over the territory controlled although the de jure government is during the period of
occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a scheme
contrived by Japan to delude the Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of government into the hands of Filipinos. It
was established under the mistaken belief that by doing so, Japan would secure the cooperation or at
least the neutrality of the Filipino people in her war against the United States and other allied nations.

Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who,
taking advantage of the withdrawal of the American forces from the Islands, and the occupation thereof
by the Japanese forces of invasion, had organized an independent government under the name with
the support and backing of Japan, such government would have been considered as one established
by the Filipinos in insurrection or rebellion against the parent state or the Unite States. And as such, it
would have been a de facto government similar to that organized by the confederate states during the
war of secession and recognized as such by the by the Supreme Court of the United States in numerous
cases, notably those of Thorington vs. Smith, Williams vs. Bruffy, and Badly vs. Hunter, above quoted;
and similar to the short-lived government established by the Filipino insurgents in the Island of Cebu
during the Spanish-American war, recognized as a de facto government by the Supreme Court of the
United States in the case of McCleod vs. United States (299 U. S., 416). According to the facts in the
last-named case, the Spanish forces evacuated the Island of Cebu on December 25, 1898, having first
appointed a provisional government, and shortly afterwards, the Filipinos, formerly in insurrection
against Spain, took possession of the Islands and established a republic, governing the Islands until
possession thereof was surrendered to the United States on February 22, 1898. And the said Supreme
Court held in that case that "such government was of the class of de facto governments described in I
Moore's International Law Digest, S 20, . . . 'called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government of paramount force . . '." That is to say, that
the government of a country in possession of belligerent forces in insurrection or rebellion against the
parent state, rests upon the same principles as that of a territory occupied by the hostile army of an
enemy at regular war with the legitimate power.

The governments by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation being de facto governments, it necessarily follows that the judicial
acts and proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium)
in international law, remained good and valid after the liberation or reoccupation of the Philippines by
the American and Filipino forces under the leadership of General Douglas MacArthur. According to that
well-known principle in international law, the fact that a territory which has been occupied by an enemy
comes again into the power of its legitimate government of sovereignty, "does not, except in a very few
cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his
competence to do. Thus judicial acts done under his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take effect during the continuance of his control,
and the various acts done during the same time by private persons under the sanction of municipal law,
remain good. Were it otherwise, the whole social life of a community would be paralyzed by an invasion;
and as between the state and the individuals the evil would be scarcely less, it would be hard for
example that payment of taxes made under duress should be ignored, and it would be contrary to the
general interest that the sentences passed upon criminals should be annulled by the disappearance of
the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the occupation and the
abandonment have been each an incident of the same war as in the present case, postliminy applies,
even though the occupant has acted as conqueror and for the time substituted his own sovereignty as
the Japanese intended to do apparently in granting independence to the Philippines and establishing
the so-called Republic of the Philippines. (Taylor, International Law, p. 615.)

That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant,
is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which
declares null and void all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been necessary for said proclamation
to abrogate them if they were invalid ab initio.

2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of October 23,
1944 that is, whether it was the intention of the Commander in Chief of the American Forces to annul
and void thereby all judgments and judicial proceedings of the courts established in the Philippines
during the Japanese military occupation.

The phrase "processes of any other government" is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the Republic
of the Philippines or other governmental agencies established in the Islands during the Japanese
occupation. Taking into consideration the fact that, as above indicated, according to the well-known
principles of international law all judgements and judicial proceedings, which are not of a political
complexion, of the de facto governments during the Japanese military occupation were good and valid
before and remained so after the occupied territory had come again into the power of the titular
sovereign, it should be presumed that it was not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase "processes of any other government" in said proclamation, to
refer to judicial processes, in violation of said principles of international law. The only reasonable
construction of the said phrase is that it refers to governmental processes other than judicial processes
of court proceedings, for according to a well-known rule of statutory construction, set forth in 25 R. C.
L., p. 1028, "a statute ought never to be construed to violate the law of nations if any other possible
construction remains."

It is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory, if and when the exigencies of the military occupation demand such action. But even assuming
that, under the law of nations, the legislative power of a commander in chief of military forces who
liberates or reoccupies his own territory which has been occupied by an enemy, during the military and
before the restoration of the civil regime, is as broad as that of the commander in chief of the military
forces of invasion and occupation (although the exigencies of military reoccupation are evidently less
than those of occupation), it is to be presumed that General Douglas MacArthur, who was acting as an
agent or a representative of the Government and the President of the United States, constitutional
commander in chief of the United States Army, did not intend to act against the principles of the law of
nations asserted by the Supreme Court of the United States from the early period of its existence,
applied by the Presidents of the United States, and later embodied in the Hague Conventions of 1907,
as above indicated. It is not to be presumed that General Douglas MacArthur, who enjoined in the same
proclamation of October 23, 1944, "upon the loyal citizens of the Philippines full respect and obedience
to the Constitution of the Commonwealth of the Philippines," should not only reverse the international
policy and practice of his own government, but also disregard in the same breath the provisions of
section 3, Article II, of our Constitution, which provides that "The Philippines renounces war as an
instrument of national policy, and adopts the generally accepted principles of international law as part
of the law of the Nation."

Moreover, from a contrary construction great inconvenience and public hardship would result, and great
public interests would be endangered and sacrificed, for disputes or suits already adjudged would have
to be again settled accrued or vested rights nullified, sentences passed on criminals set aside, and
criminals might easily become immune for evidence against them may have already disappeared or be
no longer available, especially now that almost all court records in the Philippines have been destroyed
by fire as a consequence of the war. And it is another well-established rule of statutory construction
that where great inconvenience will result from a particular construction, or great public interests would
be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court
ought to presume that such construction was not intended by the makers of the law, unless required
by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)

The mere conception or thought of possibility that the titular sovereign or his representatives who
reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings
of the tribunals which the belligerent occupant had the right and duty to establish in order to insure
public order and safety during military occupation, would be sufficient to paralyze the social life of the
country or occupied territory, for it would have to be expected that litigants would not willingly submit
their litigation to courts whose judgements or decisions may afterwards be annulled, and criminals
would not be deterred from committing crimes or offenses in the expectancy that they may escaped the
penalty if judgments rendered against them may be afterwards set aside.

That the proclamation has not invalidated all the judgements and proceedings of the courts of justice
during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of
law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency legislative
power vested in him by the Constitution and the laws of the Commonwealth of the Philippines. Said
Executive order abolished the Court of Appeals, and provided "that all case which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme Court final decision." This
provision impliedly recognizes that the judgments and proceedings of the courts during the Japanese
military occupation have not been invalidated by the proclamation of General MacArthur of October 23,
because the said Order does not say or refer to cases which have been duly appealed to said court
prior to the Japanese occupation, but to cases which had therefore, that is, up to March 10, 1945, been
duly appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases
pending in the Court of Appeals prior to the Japanese military occupation of Manila on January 2, 1942,
had been disposed of by the latter before the restoration of the Commonwealth Government in 1945;
while almost all, if not all, appealed cases pending on March 10, 1945, in the Court of Appeals were from
judgments rendered by the Court of First Instance during the Japanese regime.

The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it
is said that an occupier's acts are valid and under international law should not be abrogated by the
subsequent conqueror, it must be remembered that no crucial instances exist to show that if his acts
should be reversed, any international wrong would be committed. What does happen is that most
matters are allowed to stand by the restored government, but the matter can hardly be put further than
this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this quotion the
respondent judge "draws the conclusion that whether the acts of the occupant should be considered
valid or not, is a question that is up to the restored government to decide; that there is no rule of
international law that denies to the restored government to decide; that there is no rule of international
law that denies to the restored government the right of exercise its discretion on the matter, imposing
upon it in its stead the obligation of recognizing and enforcing the acts of the overthrown government."

There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier,
such as the laws, regulations and processes other than judicial of the government established by the
belligerent occupant. But in view of the fact that the proclamation uses the words "processes of any
other government" and not "judicial processes" prisely, it is not necessary to determine whether or not
General Douglas MacArthur had power to annul and set aside all judgments and proceedings of the
courts during the Japanese occupation. The question to be determined is whether or not it was his
intention, as representative of the President of the United States, to avoid or nullify them. If the
proclamation had, expressly or by necessary implication, declared null and void the judicial processes
of any other government, it would be necessary for this court to decide in the present case whether or
not General Douglas MacArthur had authority to declare them null and void. But the proclamation did
not so provide, undoubtedly because the author thereof was fully aware of the limitations of his powers
as Commander in Chief of Military Forces of liberation or subsequent conqueror.

Not only the Hague Regulations, but also the principles of international law, as they result from the
usages established between civilized nations, the laws of humanity and the requirements of the public
of conscience, constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake,
International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions
which we have already quoted in discussing the first question, imposes upon the occupant the
obligation to establish courts; and Article 23 (h), section II, of the same Conventions, which prohibits
the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights and action of the
nationals of the hostile party," forbids him to make any declaration preventing the inhabitants from using
their courts to assert or enforce their civil rights. (Decision of the Court of Appeals of England in the
case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to
establish courts of justice in the territory occupied, and forbidden to prevent the nationals thereof from
asserting or enforcing therein their civil rights, by necessary implication, the military commander of the
forces of liberation or the restored government is restrained from nullifying or setting aside the
judgments rendered by said courts in their litigation during the period of occupation. Otherwise, the
purpose of these precepts of the Hague Conventions would be thwarted, for to declare them null and
void would be tantamount to suspending in said courts the right and action of the nationals of the
territory during the military occupation thereof by the enemy. It goes without saying that a law that
enjoins a person to do something will not at the same time empower another to undo the same.
Although the question whether the President or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of his country is obviously of a domestic nature,
yet, in construing and applying limitations imposed on the executive authority, the Supreme Court of
the United States, in the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise
from general rules of international law and from fundamental principles known wherever the American
flag flies."

In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command
of the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a
decree rendered by a court of chancery in that state in a case within its jurisdiction, was declared void,
and not warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of the
same year (15 id., 14), which defined the powers and duties of military officers in command of the
several states then lately in rebellion. In the course of its decision the court said; "We have looked
carefully through the acts of March 2, 1867 and July 19, 1867. They give very large governmental
powers to the military commanders designated, within the States committed respectively to their
jurisdiction; but we have found nothing to warrant the order here in question. . . . The clearest language
would be necessary to satisfy us that Congress intended that the power given by these acts should be
so exercised. . . . It was an arbitrary stretch of authority, needful to no good end that can be imagined.
Whether Congress could have conferred the power to do such an act is a question we are not called
upon to consider. It is an unbending rule of law that the exercise of military power, where the rights of
the citizen are concerned, shall never be pushed beyond what the exigency requires.
(Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp.,
161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated, we
hold that the order was void."

It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which declared
that "all laws, regulations and processes of any other government in the Philippines than that of the
said Commonwealth are null and void without legal effect in areas of the Philippines free of enemy
occupation and control," has not invalidated the judicial acts and proceedings, which are not a political
complexion, of the courts of justice in the Philippines that were continued by the Philippine Executive
Commission and the Republic of the Philippines during the Japanese military occupation, and that said
judicial acts and proceedings were good and valid before and now good and valid after the reoccupation
of liberation of the Philippines by the American and Filipino forces.

3. The third and last question is whether or not the courts of the Commonwealth, which are the same
as those existing prior to, and continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue
now the proceedings in actions pending in said courts at the time the Philippine Islands were reoccupied
or liberated by the American and Filipino forces, and the Commonwealth Government was restored.

Although in theory the authority the authority of the local civil and judicial administration is suspended
as a matter of course as soon as military occupation takes place, in practice the invader does not
usually take the administration of justice into his own hands, but continues the ordinary courts or
tribunals to administer the laws of the country which he is enjoined, unless absolutely prevented, to
respect. As stated in the above-quoted Executive Order of President McKinley to the Secretary of War
on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated but are allowed to
remain in force and to be administered by the ordinary tribunals substantially as they were before the
occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion."
And Taylor in this connection says: "From a theoretical point of view it may be said that the conqueror
is armed with the right to substitute his arbitrary will for all preexisting forms of government, legislative,
executive and judicial. From the stand-point of actual practice such arbitrary will is restrained by the
provision of the law of nations which compels the conqueror to continue local laws and institution so far
as military necessity will permit." (Taylor, International Public Law, p.596.) Undoubtedly, this practice
has been adopted in order that the ordinary pursuits and business of society may not be unnecessarily
deranged, inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.

Following these practice and precepts of the law of nations, Commander in Chief of the Japanese
Forces proclaimed on January 3, 1942, when Manila was occupied, the military administration under
martial law over the territory occupied by the army, and ordered that "all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue to be affective for the time
being as in the past," and "all public officials shall remain in their present post and carry on faithfully
their duties as before." When the Philippine Executive Commission was organized by Order No. 1 of
the Japanese Commander in Chief, on January 23, 1942, the Chairman of the Executive Commission,
by Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the Supreme
Court, Court of Appeals, Court of First Instance, and justices of the peace of courts, with the same
jurisdiction in conformity with the instructions given by the Commander in Chief of the Imperial
Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when the so-called
Republic of the Philippines was inaugurated, the same courts were continued with no substantial
change in organization and jurisdiction thereof.

If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation
had been continued during the Japanese military administration, the Philippine Executive Commission,
and the so-called Republic of the Philippines, it stands to reason that the same courts, which had
become reestablished and conceived of as having in continued existence upon the reoccupation and
liberation of the Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p.
516), may continue the proceedings in cases then pending in said courts, without necessity of enacting
a law conferring jurisdiction upon them to continue said proceedings. As Taylor graphically points out
in speaking of said principles "a state or other governmental entity, upon the removal of a foreign military
force, resumes its old place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies to regain their original
shape upon removal of the external force, and subject to the same exception in case of absolute
crushing of the whole fibre and content." (Taylor, International Public Law, p. 615.)

The argument advanced by the respondent judge in his resolution in support in his conclusion that the
Court of First Instance of Manila presided over by him "has no authority to take cognizance of, and
continue said proceedings (of this case) to final judgment until and unless the Government of the
Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the courts
of the now defunct Republic of the Philippines, and the cases commenced and the left pending therein,"
is "that said courts were a government alien to the Commonwealth Government. The laws they
enforced were, true enough, laws of the Commonwealth prior to Japanese occupation, but they had
become the laws and the courts had become the institutions of Japan by adoption (U.S. vs. Reiter.
27 F. Cases, No. 16146), as they became later on the laws and institutions of the Philippine Executive
Commission and the Republic of the Philippines."

The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of
the country occupied if continued by the conqueror or occupant, become the laws and the courts, by
adoption, of the sovereign nation that is militarily occupying the territory. Because, as already shown,
belligerent or military occupation is essentially provisional and does not serve to transfer the sovereignty
over the occupied territory to the occupant. What the court said was that, if such laws and institutions
are continued in use by the occupant, they become his and derive their force from him, in the sense
that he may continue or set them aside. The laws and institution or courts so continued remain the laws
and institutions or courts of the occupied territory. The laws and the courts of the Philippines, therefore,
did not become, by being continued as required by the law of nations, laws and courts of Japan. The
provision of Article 45, section III, of the Hague Conventions of 1907 which prohibits any compulsion of
the population of occupied territory to swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by the invader in the legitimate sovereignty.
This duty is neither to innovate in the political life of the occupied districts, nor needlessly to break the
continuity of their legal life. Hence, so far as the courts of justice are allowed to continue administering
the territorial laws, they must be allowed to give their sentences in the name of the legitimate sovereign
" (Westlake, Int. Law, Part II, second ed., p. 102). According to Wheaton, however, the victor need not
allow the use of that of the legitimate government. When in 1870, the Germans in France attempted to
violate that rule by ordering, after the fall of the Emperor Napoleon, the courts of Nancy to administer
justice in the name of the "High German Powers occupying Alsace and Lorraine," upon the ground that
the exercise of their powers in the name of French people and government was at least an implied
recognition of the Republic, the courts refused to obey and suspended their sitting. Germany originally
ordered the use of the name of "High German Powers occupying Alsace and Lorraine," but later offered
to allow use of the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th
English ed. 1944, p. 244.)

Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established
continues until changed by the some competent legislative power. It is not change merely by change
of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the Conflict on
Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time the
law comes into existence with the first-felt corporateness of a primitive people it must last until the final
disappearance of human society. Once created, it persists until a change take place, and when
changed it continues in such changed condition until the next change, and so forever. Conquest or
colonization is impotent to bring law to an end; in spite of change of constitution, the law continues
unchanged until the new sovereign by legislative acts creates a change."

As courts are creatures of statutes and their existence defends upon that of the laws which create and
confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are not
abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until
repealed by legislative acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made, is but a declaration of
the intention of respecting and not repealing those laws. Therefore, even assuming that Japan had
legally acquired sovereignty over these Islands, which she had afterwards transferred to the so-called
Republic of the Philippines, and that the laws and the courts of these Islands had become the courts of
Japan, as the said courts of the laws creating and conferring jurisdiction upon them have continued in
force until now, it necessarily follows that the same courts may continue exercising the same jurisdiction
over cases pending therein before the restoration of the Commonwealth Government, unless and until
they are abolished or the laws creating and conferring jurisdiction upon them are repealed by the said
government. As a consequence, enabling laws or acts providing that proceedings pending in one court
be continued by or transferred to another court, are not required by the mere change of government or
sovereignty. They are necessary only in case the former courts are abolished or their jurisdiction so
change that they can no longer continue taking cognizance of the cases and proceedings commenced
therein, in order that the new courts or the courts having jurisdiction over said cases may continue the
proceedings. When the Spanish sovereignty in the Philippine Islands ceased and the Islands came into
the possession of the United States, the "Audiencia" or Supreme Court was continued and did not
cease to exist, and proceeded to take cognizance of the actions pending therein upon the cessation of
the Spanish sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme
Court created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First
Instance of the Islands during the Spanish regime continued taking cognizance of cases pending
therein upon the change of sovereignty, until section 65 of the same Act No. 136 abolished them and
created in its Chapter IV the present Courts of First Instance in substitution of the former. Similarly, no
enabling acts were enacted during the Japanese occupation, but a mere proclamation or order that the
courts in the Island were continued.

On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing
the civil jurisdiction of the provost courts created by the military government of occupation in the
Philippines during the Spanish-American War of 1898, the same section 78 provided for the transfer of
all civil actions then pending in the provost courts to the proper tribunals, that is, to the justices of the
peace courts, Court of First Instance, or Supreme Court having jurisdiction over them according to law.
And later on, when the criminal jurisdiction of provost courts in the City of Manila was abolished by
section 3 of Act No. 186, the same section provided that criminal cases pending therein within the
jurisdiction of the municipal court created by Act No. 183 were transferred to the latter.

That the present courts as the same courts which had been functioning during the Japanese regime
and, therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the second question. Said Executive Order
provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as
amended, be abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. . .
." In so providing, the said Order considers that the Court of Appeals abolished was the same that
existed prior to, and continued after, the restoration of the Commonwealth Government; for, as we have
stated in discussing the previous question, almost all, if not all, of the cases pending therein, or which
had theretofore (that is, up to March 10, 1945) been duly appealed to said court, must have been cases
coming from the Courts of First Instance during the so-called Republic of the Philippines. If the Court
of Appeals abolished by the said Executive Order was not the same one which had been functioning
during the Republic, but that which had existed up to the time of the Japanese occupation, it would
have provided that all the cases which had, prior to and up to that occupation on January 2, 1942, been
dully appealed to the said Court of Appeals shall be transmitted to the Supreme Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil
rights of the parties under the laws of the Commonwealth Government, pending in said court at the
time of the restoration of the said Government; and that the respondent judge of the court, having
refused to act and continue him does a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary course of law, especially taking
into consideration the fact that the question of jurisdiction herein involved does affect not only this
particular case, but many other cases now pending in all the courts of these Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and
continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as
to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

The Nereide

13 U.S. (9 Cranch) 388

APPEAL FROM THE CIRCUIT COURT

OF THE DISTRICT OF NEW YORK

Syllabus

The stipulation in a treaty "that free ships shall make free goods" does not imply the converse
proposition, that "enemy ships shall make enemy goods."

The treaty with Spain does not contain, either expressly or by implication, a stipulation that enemy ships
shall make enemy goods.

A neutral may lawfully employ an armed belligerent vessel to transport his goods, and such goods do
not lose their neutral character by the armament, nor by the resistance made by such vessel, provided
the neutral do not aid in such armament or resistance, although he charter the whole vessel and be on
board at the time of the resistance.

A merchant having a fixed residence and carrying on business at the place of his birth does not acquire
a foreign commercial character by occasional visit to a foreign country.

The right of search grows out of and is auxiliary to the greater right of capture.

The rule that the goods of an enemy found in the vessel of a friend are prize of war and those of a
friend found in the vessel of an enemy are to be restored is a part of the law of nations, and has been
fully and unequivocally recognized by the United States.

The principle of retaliation upon the subjects of a foreign state for its unjust proceedings towards our
citizens is a political, not a judicial, measure. It is for the consideration of the government, but it is not
a rule of decision in courts of justice.

This was an appeal by Manuel Pinto from the sentence of the Circuit Court for the District of New York
affirming pro forma the sentence of the district court which condemned that part of the cargo which was
claimed by him.

The facts of the case are thus stated by THE CHIEF JUSTICE in delivering the opinion of the court

Page 13 U. S. 389

Manuel Pinto, a native of Buenos Ayres, being in London, on 26 August, 1813, entered into a contract
with John Drinkald, owner of the ship Nereide, whereof William Bennet was master, whereby the said
Drinkald let to the said Pinto the said vessel to freight for a voyage to Buenos Ayres and back again to
London on the conditions mentioned in the charter party. The owner covenanted that the said vessel,
being in all respects seaworthy, well manned, victualed, equipped, provided, and furnished with all
things needful for such a vessel, should take on board a cargo to be provided for her, that the master
should sign the customary bills of lading, and that the said ship being laden and dispatched, should join
and sail with the first convoy that should depart from Great Britain for Buenos Ayres, that on his arrival,
the master should give notice thereof to the agents or assigns of the said freighter and make delivery
of the cargo according to bills of lading; and that the said ship, being in all respects seaworthy, manned,
&c., as before mentioned, should take and receive on board at Buenos Ayres all such lawful cargo as
they should tender for that purpose, for which the master should sign the customary bills of lading, and
the ship, being laden and dispatched, should sail and make the best of her way back to London, and
on her arrival deliver her cargo according to the bills of lading. For unloading the outward and taking in
the homeward cargo the owner agreed to allow 90 running days, and for unloading the return cargo 15
running days. The owner also agreed that the freighter and one other person whom he might appoint
should have their passage without being chargeable therefor. In consideration of the premises, the
freighter agreed to send or cause to be sent alongside of the ship such lawful goods as he might have
to ship or could procure from others and dispatch her therewith in time to join and sail with the first
convoy, and on her arrival at Buenos Ayres to receive the cargo according to bills of lading, and
afterwards to send along side of the ship a return cargo and dispatch her to London, and on her arrival
receive the cargo according to bills of lading, and to pay freight as follows, viz., for the outward cargo
700, together with five percent primage, to be paid on signing the bills of lading, and for the homeward
or return cargo at the rate mentioned in the charter party. He was also to advance the master at

Page 13 U. S. 390

Buenos Ayres such money as might be necessary for disbursements on the ship. It was provided that
all the freight of the outward cargo, except on the goods belonging to the freighter, which should not
exceed 400 should be received by the owner on the bills of lading being signed, and in case of the
loss of the ship, such freight should be his property; but if she arrived safe back with a full cargo, then
the freighter should be credited for the excess of the said freight over and above the sum of 700. A
delay of 10 running days over and above the time stipulated is allowed the freighter, he paying for such
demurrage at the rate of 10, 10s per day.
Under this contract a cargo, belonging in part to the freighter, in part to other inhabitants of Buenos
Ayres and in part of British subjects, was taken on board the Nereide, and she sailed under convoy
sometime in November, 1813.

Her license or passport, dated 16 November, states her to mount 10 guns and to be manned by 16
men.

The letter of instructions from the owner to the master is dated on 24 November, and contains this
passage:

"Mr. Pinto is to advance you what money you require for ship's use at River Plate, and you will consider
yourself as under his directions so far as the charter party requires."

On the voyage, the Nereide was separated from her convoy, and on 19 December, 1813, when in sight
of Madeira, fell in with, and after an action of about fifteen minutes, was captured by the American
privateer The Governor Tompkins. She was brought into the port of New York, where vessel and cargo
were libeled, and the vessel and that part of the cargo which belonged to British subjects were
condemned without a claim. That part of the cargo which belonged to Spaniards was claimed by Manuel
Pinto, partly for himself and partners, residing in Buenos Ayres, and partly for the other owners residing
in the same place. On the hearing, this part of the cargo was also condemned. An appeal was taken to
the circuit court, where the sentence

Page 13 U. S. 391

of the district court was affirmed pro forma, and from that sentence an appeal has been prayed to this
Court.

Page 13 U. S. 412

MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case, delivered the opinion of the Court
as follows:

Page 13 U. S. 413

In support of the sentence of condemnation in this case, the captors contend

1. That the claimant, Manuel Pinto, has neither made sufficient proof of his neutral character nor of his
property in the goods he claims.

2. That by the treaty between Spain and the United States, the property of a Spanish subject in an
enemy's vessel is prize of war.

3. That on the principles of reciprocity this property should be condemned.

4. That the conduct of Manuel Pinto and of the vessel has impressed a hostile character on his property
and on that of other Spaniards laden on board of the Nereide.

1. Manuel Pinto is admitted to be a native of Buenos Ayres and to carry on trade at that place in
connection with his father and sister, who are his partners and who also reside at Buenos Ayres, but it
is contended that he has acquired a domicile in England, and with that domicile the English commercial
character.

Is the evidence in any degree doubtful on this point? Baltaza Ximenes, Antonio Lynch, and Felix Lynch,
three Spaniards returning with Pinto in the Nereide, all depose that Buenos Ayres is the place of his
nativity and of his permanent residence and that he carries on trade at that place.

In his test affidavit, Manuel Pinto swears in the most explicit terms to the fact that Buenos Ayres is and
always has been the place of his permanent residence, that he carries on business there on account
of himself, his father, and sister, and that he has been absent for temporary purposes only. His voyage
to London, where he arrived in June, 1813, was for the purpose of purchasing a cargo for his trade at
Buenos Ayres and of establishing connections in London for the purposes of his future trade at Buenos
Ayres.

This plain and direct testimony is opposed:

Page 13 U. S. 414

1. By his examination in preparatorio.

In his answer to the first interrogatory, he says that he was born at Buenos Ayres, that for seven years
last past, he has lived and resided in England and Buenos Ayres, that he now lives at Buenos Ayres,
that he has generally lived there for thirty-five years last past, and has been admitted a freeman of the
new government.

Whatever facility may be given to the acquisition of a commercial domicile, it has never heretofore been
contended that a merchant having a fixed residence and carrying on business at the place of his birth
acquires a foreign commercial character by occasional visits to a foreign country. Had the introduction
of the words "seven years last past" even not been fully accounted for by reference to the interrogatory,
those words could not have implied such a residence as would give a domicile. But they are fully
accounted for.

In his answer to the 12th interrogatory, he repeats that he is a Spanish American, now lives and carries
on trade at Buenos Ayres, and has generally resided there.

2. The second piece of testimony relied on by the counsel for the captors is the charter party. That
instrument states Manuel Pinto to be of Buenos Ayres, now residing in London.

The charter party does not state him to have been formerly of Buenos Ayres, but to be at its date of
Buenos Ayres. Nothing can be more obvious than that the expression, now residing in London, could
be intended to convey no other idea than that he was then personally in London.

As little importance is attached to the covenant to receive the return cargo at the wharf in London. The
performance of this duty by the consignee of the cargo as the agent of Pinto, would be a complete
execution of it.

Had the English character been friendly and the Spanish hostile, it would have been a hardy attempt
indeed in

Page 13 U. S. 415

Mr. Pinto to found on these circumstances a claim to a domicile in England.

The question respecting ownership of the goods is not so perfectly clear.

The evidence of actual ownership, so far as the claim asserts property existing at the time in himself
and partners, is involved in no uncertainty. The test affidavit annexed to the claim is full, explicit, and
direct. It goes as far as a test affidavit can go in establishing the right which the claim asserts. All the
documentary evidence relating to this subject corroborates this affidavit. The charter party shows an
expectation that, of a freight of 700, the goods of Mr. Pinto would pay 400. The very circumstance
that he chartered the whole vessel furnishes strong inducement to the opinion that a great part of her
cargo would be his own.

The witnesses examined in preparatorio, so far as they know anything on the subject, all depose to his
interest. William Puzey was clerk to Pinto, and he deposes to the interest of his employer on the
knowledge acquired in making out invoices and other papers belonging to the cargo. His belief, too, is
in some degree founded on the character of Pinto in London, where he was spoken of as a man of
great respectability and property, and from the anxiety he discovered for the safety of the property after
the Nereide was separated from her convoy.
The bills of lading for that part of the cargo which is claimed by Pinto are filled up many of them with
his name, some to order, and the marginal letters in the manifest would also denote the property to be
his. Where he claims a part of a parcel of goods, the invoice is sometimes to order, and the marginal
letters would indicate the goods to be the property of Pinto and some other person.

This testimony proves very satisfactorily the interest of Pinto's house in the property he claims. There
is no countertestimony in the cause except the belief expressed by Mr. Puzey that for a part of the
goods, Pinto was agent for the government of Buenos Ayres. This

Page 13 U. S. 416

belief of Mr. Puzey is supposed to derive much weight from his character as the clerk of Mr. Pinto. The
importance of that circumstance, however, is much diminished by the fact that he had seen Pinto only
a week before the sailing of the Nereide, and that he does not declare his belief to be founded on any
papers he had copied or seen, or on any communication made to him by his employer. There are other
and obvious grounds for his suspicion. A part of the cargo consisted of arms and military
accoutrements, and it was not very surprising that Puzey should conjecture that they were purchased
for a government about to sustain itself by the sword. But this suspicion is opposed by considerations
of decisive influence which have been stated at the bar. The demand for these articles in Buenos Ayres
by the government would furnish sufficient motives to a merchant for making them a part of his cargo.
In a considerable part of this warlike apparatus British subjects were jointly concerned. It is extremely
improbable that, if acting for his government, he would have associated its interests with those of British
merchants. Nor can a motive be assigned for claiming those goods for himself instead of claiming them
for his government. They would not by such claim become his if restored. He would still remain
accountable to his government, and the truth would have protected the property as effectually as a
falsehood should it remain undetected. By claiming these goods for himself instead of his government,
he would commit a perjury from which he could derive no possible advantage and which would expose
to imminent hazard not only those goods but his whole interest in the cargo. The Court therefore must
consider this belief of Mr. Puzey as a suspicion which a full knowledge of the facts ought entirely to
dissipate. If there was nothing in the cause but this suspicion or this belief of Mr. Puzey, the Court would
not attach any importance to it. But Mr. Pinto himself has, in his examination in preparatorio, been at
least indiscreet in asserting claims not to be sustained and in terms which do not exhibit the real fact in
its true shape. In his answer to the 12th interrogatory, he says "And this deponent also has one-fourth
interest as owner of the following goods, &c., viz., 15 bales of merchandise," &c. In his claim he thus
states the transaction under which his title to the one-fourth of these goods accrued.

Page 13 U. S. 417

He had agreed with certain persons in England to select for them a parcel of goods for the market of
Buenos Ayres of which he was to be the consignee and which he would sell on a commission of 10
percent on the amount of sales at Buenos Ayres. These goods were selected, purchased, and
consigned to Manuel Pinto. The bills of lading were in his possession, and he considered his interest
under this contract as equal to one-fourth of the value of the goods, "wherefore," he says,

"he did suppose that he was interested in the said goods and merchandise for himself, his father, and
sister, and well entitled, as the owner thereof, or otherwise, to an equal fourth part of the said goods,
inasmuch as his commissions as aforesaid would have been equal to such fourth."

It is impossible to justify this representation of the fact. The reasoning might convince the witness, but
the language he used was undoubtedly calculated to mislead the court and to extricate property to
which the captors were clearly entitled, although the witness might think otherwise. Such
misrepresentations must be frowned on in a prize court, and must involve a claim, otherwise
unexceptionable, in doubt and danger. A witness ought never to swear to inferences without stating the
train of reasoning by which his mind has been conducted to them. Prize courts are necessarily watchful
over subjects of this kind, and demand the utmost fairness in the conduct of claimants. Yet prize courts
must distinguish between misrepresentations which may be ascribed to error of judgment and which
are, as soon as possible, corrected by the party who has made them and willful falsehoods which are
detected by the testimony of others or confessed by the party when detection becomes inevitable. In
the first case, there may be cause for a critical and perhaps suspicious examination of the claim and of
the testimony by which it is supported; but it would be harsh indeed to condemn neutral property, in a
case in which it was clearly proved to be neutral, for one false step, in some degree equivocal in its
character, which was so soon corrected by the party making it.

The case of Mr. Paul's printing press is still less dubious in its appearance. It would require a very
critical

Page 13 U. S. 418

investigation of the evidence to decide whether this press is stated in his answer to the 12th
interrogatory to be his property or not. Four presses are said in that answer to belong to him, but he
also says in his answer to another interrogatory, perhaps the 26th, that Mr. Paul had one printing press
on board. Whether there were five presses in the cargo or only four has not been decided, because the
declaration made in his examination in preparatorio that one of the presses belonged to Mr. Paul proves
unequivocally that the mistake, if he made one, was not fraudulent.

That he should state as his the property which belonged to a house in Buenos Ayres, whose members
all resided at the same place and of which he was the acting and managing partner, was a circumstance
which could not appear important to himself and which was of no importance in the cause. These trivial
and accidental inaccuracies are corrected in his claim and in his test affidavit. The Court does not think
them of sufficient importance to work a confiscation of goods of the real neutrality of which no serious
doubt is entertained.

2. Does the treaty between Spain and the United States subject the goods of either party, being neutral,
to condemnation as enemy property if found by the other in the vessel of an enemy? That treaty
stipulates that neutral bottoms shall make neutral goods, but contains no stipulation that enemy bottoms
shall communicate the hostile character to the cargo. It is contended by the captors that the two
principles are so completely identified that the stipulation of the one necessarily includes the other.

Let this proposition be examined.

The rule that the goods of an enemy found in the vessel of a friend are prize of war and that the goods
of a friend found in the vessel of an enemy are to be restored is believed to be a part of the original law
of nations, as generally, perhaps universally, acknowledged. Certainly it has been fully and
unequivocally recognized by the United States. This rule is founded on the simple and intelligible
principle that war gives a full right to capture the goods of an enemy, but gives no right to

Page 13 U. S. 419

capture the goods of a friend. In the practical application of this principle so as to form the rule, the
propositions that the neutral flag constitutes no protection to enemy property and that the belligerent
flag communicates no hostile character to neutral property are necessarily admitted. The character of
the property, taken distinctly and separately from all other considerations, depends in no degree upon
the character of the vehicle in which it is found.

Many nations have believed it to be their interest to vary this simple and natural principle of public law.
They have changed it by convention between themselves as far as they have believed it to be for their
advantage to change it. But unless there be something in the nature of the rule which renders its parts
unsusceptible of division, nations must be capable of dividing it by express compact, and if they
stipulate either that the neutral flag shall cover enemy goods or that the enemy flag shall infect friendly
goods, there would in reason seem to be no necessity for implying a distinct stipulation not expressed
by the parties. Treaties are formed upon deliberate reflection. Diplomatic men read the public treaties
made by other nations, and cannot be supposed either to omit or insert an article common in public
treaties without being aware of the effect of such omission or insertion. Neither the one nor the other is
to be ascribed to inattention. And if an omitted article be not necessarily implied in one which is inserted,
the subject to which that article would apply remains under the ancient rule. That the stipulation of
immunity to enemy goods in the bottoms of one of the parties being neutral does not imply a surrender
of the goods of that party being neutral if found in the vessel of an enemy is the proposition of the
counsel for the claimant, and he powerfully sustains that proposition by arguments arising from the
nature of the two stipulations. The agreement that neutral bottoms shall make neutral goods is, he very
justly remarks, a concession made by the belligerent to the neutral. It enlarges the sphere of neutral
commerce and gives to the neutral flag a capacity not given to it by the law of nations.

The stipulation which subjects neutral property found in the bottom of an enemy to condemnation as
prize of

Page 13 U. S. 420

war is a concession made by the neutral to the belligerent. It narrows the sphere of neutral commerce
and takes from the neutral a privilege he possessed under the law of nations. The one may be and
often is exchanged for the other. But it may be the interest and the will of both parties to stipulate the
one without the other, and if it be their interest or their will, what shall prevent its accomplishment? A
neutral may give some other compensation for the privilege of transporting enemy goods in safety, or
both parties may find an interest in stipulating for this privilege, and neither may be disposed to make
to or require from the other the surrender of any right as its consideration. What shall restrain
independent nations from making such a compact? And how is their intention to be communicated to
each other or to the world so properly as by the compact itself?

If reason can furnish no evidence of the indissolubility of the two maxims, the supporters of that
proposition will certainly derive no aid from the history of their progress from the first attempts at their
introduction to the present moment.

For a considerable length of time they were the companions of each other -- not as one maxim
consisting of a single indivisible principle, but as two stipulations, the one in the view of the parties
forming a natural and obvious consideration for the other. The celebrated compact termed the "armed
neutrality" attempted to effect by force a great revolution in the law of nations. The attempt failed, but it
made a deep and lasting impression on public sentiment. The character of this effort has been
accurately stated by the counsel for the claimants. Its object was to enlarge, and not in anything to
diminish, the rights of neutrals. The great powers, parties to this agreement, contended for the principle
that free ships should make free goods, but not for the converse maxim; so far were they from
supposing the one to follow as a corollary from the other that the contrary opinion was openly and
distinctly avowed. The King of Prussia declared his expectation that in future neutral bottoms would
protect the goods of an enemy, and that neutral goods would be safe in an enemy bottom. There is no
reason to believe that this opinion

Page 13 U. S. 421

was not common to those powers who acceded to the principles of the armed neutrality.

From that epoch to the present, in the various treaties which have been formed, some contain no article
on the subject, and consequently leave the ancient rule in full force. Some stipulate that the character
of the cargo shall depend upon the flag, some that the neutral flag shall protect the goods of an enemy,
some that the goods of a neutral in the vessel of a friend shall be prize of war, and some that the goods
of an enemy in a neutral bottom shall be safe, and that friendly goods in the bottom of an enemy shall
also be safe.

This review, which was taken with minute accuracy at the bar, certainly demonstrates that in public
opinion, no two principles are more distinct and independent of each other than the two which have
been contended to be inseparable.

Does the United States understand this subject differently from other nations? It is certainly not from
our treaties that this opinion can be sustained. The United States has in some treaties stipulated for
both principles, in some for one of them only, in some that neutral bottoms shall make neutral goods
and that friendly goods shall be safe in the bottom of an enemy. It is therefore clearly understood in the
United States, so far as an opinion can be formed on its treaties, that the one principle is totally
independent of the other. It has stipulated expressly for their separation, and it has sometimes
stipulated for the one without the other.

But in a correspondence between the Secretary of State of the United States and the minister of the
French Republic in 1793, Prussia is enumerated among those nations with which the United States
had made a treaty adopting the entire principle that the character of the cargo should be determined
by the character of the flag.

Not being in possession of this correspondence, the Court is unable to examine the construction it has
received. It has not deferred this opinion on that account, because the point in controversy at that time
was the obligation imposed on the United States to protect belligerent

Page 13 U. S. 422

property in its vessels, not the liability of their property to capture if found in the vessel of a belligerent.
To this point the whole attention of the writer was directed, and it is not wonderful that in mentioning
incidentally the treaty with Prussia which contains the principle that free bottoms make free goods, it
should have escaped his recollection that it did not contain the converse of the maxim. On the talents
and virtues which adorned the cabinet of that day, on the patient fortitude with which it resisted the
intemperate violence with which it was assailed, on the firmness with which it maintained those
principles which its sense of duty prescribed, on the wisdom of the rules it adopted, no panegyric has
been pronounced at the bar in which the best judgment of this Court does not concur. But this respectful
deference may well comport with the opinion that an argument incidentally brought forward by way of
illustration is not such full authority as a decision directly on the point might have been.

3. The third point made by the captors is that whatever construction might be put on our treaty with
Spain, considered as an independent measure, the ordinances of that government would subject
American property under similar circumstances to confiscation, and therefore the property claimed by
Spanish subjects in this case ought to be condemned as prize of war.

The ordinances themselves have not been produced, nor has the Court received such information
respecting them as would enable it to decide certainly either on their permanent existence or on their
application to the United States. But be this as it may, the Court is decidedly of opinion that reciprocating
to the subjects of a nation or retaliating on them its unjust proceedings towards our citizens is a political,
not a legal, measure. It is for the consideration of the government, not of its courts. The degree and the
kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the
nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy
to recede from its full rights and not to avenge them at all. It is not for its courts to interfere with the
proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track

Page 13 U. S. 423

prescribed for us, and to tread the devious and intricate path of politics. Even in the case of salvage, a
case peculiarly within the discretion of courts because no fixed rule is prescribed by the law of nations,
Congress has not left it to this department to say whether the rule of foreign nations shall be applied to
them, but has by law applied that rule. If it be the will of the government to apply to Spain any rule
respecting captures which Spain is supposed to apply to us, the government will manifest that will by
passing an act for the purpose. Till such an act be passed, the Court is bound by the law of nations
which is a part of the law of the land.

Thus far, the opinion of the Court has been formed without much difficulty. Although the principles
asserted by the counsel have been sustained on both sides with great strength of argument, they have
been found on examination to be simple and clear in themselves. Stripped of the imposing garb in
which they have been presented to the Court, they have no intrinsic intricacy which should perplex the
understanding.

The remaining point is of a different character. Belligerent rights and neutral privileges are set in array
against each other. Their respective pretensions, if not actually intermixed, come into close contact,
and the line of partition is not so distinctly marked as to be clearly discernible. It is impossible to declare
in favor of either without hearing from the other objections which it is difficult to answer and arguments
which it is not easy to refute. The Court has given to this subject a patient investigation, and has
endeavored to avail itself of all the aid which has been furnished by the bar. The result, if not completely
satisfactory even to ourselves, is one from which it is believed we should not depart were further time
allowed for deliberation.
4. Has the conduct of Manuel Pinto and of the Nereide been such as to impress the hostile character
on that part of the cargo which was in fact neutral?

In considering this question, the Court has examined separately the parts which compose it.

The vessel was armed, was the property of an enemy,

Page 13 U. S. 424

and made resistance. How do these facts affect the claim?

Had the vessel been armed by Pinto, that fact would certainly have constituted an important feature in
the case. But the Court can perceive no reason for believing she was armed by him. He chartered, it is
true, the whole vessel, and that he might as rightfully do as contract for her partially; but there is no
reason to believe that he was instrumental in arming her. The owner stipulates that the Nereide, "well
manned, victualed, equipped, provided and furnished with all things needful for such a vessel," shall
be ready to take on board a cargo to be provided for her. The Nereide, then, was to be put by the owner
in the condition in which she was to sail. In equipping her, whether with or without arms, Mr. Pinto was
not concerned. It appears to have been entirely and exclusively the act of the belligerent owner.

Whether the resistance which was actually made is in any degree imputable to Mr. Pinto is a question
of still more importance.

It has been argued that he had the whole ship, and that therefore the resistance was his resistance.

The whole evidence upon this point is to be found in the charter party, in the letter of instructions to the
master, and in the answer of Pinto to one of the interrogatories in preparatorio.

The charter party evinces throughout that the ship remained under the entire direction of the owner,
and that Pinto in no degree participated in the command of her. The owner appoints the master and
stipulates for every act to be performed by the ship from the date of the charter party to the termination
of the voyage. In no one respect except in lading the vessel was Pinto to have any direction of her.

The letter of instructions to the master contains full directions for the regulation of his conduct, without
any other reference to Mr. Pinto than has been already stated. That reference shows a positive
limitation of

Page 13 U. S. 425

his power by the terms of the charter party. Consequently he had no share in the government of the
ship.

But Pinto says in his answer to the 6th interrogatory that "he had control of the said ship and cargo."

Nothing can be more obvious than that Pinto could understand himself as saying no more than that he
had the control of the ship and cargo so far as respected her lading. A part of the cargo did not belong
to him and was not consigned to him. His control over the ship began and ended with putting the cargo
on board. He does not appear ever to have exercised any authority in the management of the ship. So
far from exercising any during the battle, he went into the cabin, where he remained till the conflict was
over. It is, then, most apparent that when Pinto said he had the control of the ship and cargo, he used
those terms in a limited sense. He used them in reference to the power of lading her given him by the
charter party.

If in this the Court be correct, this cause is to be governed by the principles which would apply to it had
the Nereide been a general ship.

The next point to be considered is the right of a neutral to place his goods on board an armed belligerent
merchantman.

That a neutral may lawfully put his goods on board a belligerent ship for conveyance on the ocean is
universally recognized as the original rule of the law of nations. It is, as has already been stated,
founded on the plain and simple principle that the property of a friend remains his property wherever it
may be found. "Since it is not," says Vattel,

"the place where a thing is which determines the nature of that thing, but the character of the person to
whom it belongs, things belonging to neutral persons which happen to be in an enemy's country, or on
board an enemy's ships, are to be distinguished from those which belong to the enemy."

Bynkershoek lays down the same principles in terms equally explicit, and in terms entitled to the more
consideration because he enters into the inquiry whether a

Page 13 U. S. 426

knowledge of the hostile character of the vessel can effect the owner of the goods.

The same principle is laid down by other writers on the same subject, and is believed to be contradicted
by none. It is true there were some old ordinances of France declaring that a hostile vessel or cargo
should expose both to condemnation. But these ordinances have never constituted a rule of public law.

It is deemed of much importance that the rule is universally laid down in terms which comprehend an
armed as well as an unarmed vessel, and that armed vessels have never been excepted from it.
Bynkershoek, in discussing a question suggesting an exception with his mind directed to hostilities,
does not hint that this privilege is confined to unarmed merchantmen.

In point of fact it is believed that a belligerent merchant vessel rarely sails unarmed, so that this
exception from the rule would be greater than the rule itself. At all events, the number of those who are
armed and who sail under convoy is too great not to have attracted the attention of writers on public
law, and this exception to their broad general rule, if it existed, would certainly be found in some of their
works. It would be strange if a rule laid down with a view to war in such broad terms as to have universal
application should be so construed as to exclude from its operation almost every case for which it
purports to provide, and yet that not a dictum should be found in the books pointing to such
construction.

The antiquity of the rule is certainly not unworthy of consideration. It is to be traced back to the time
when almost every merchantman was in a condition for self-defense, and the implements of war were
so light and so cheap that scarcely any would sail without them.

A belligerent has a perfect right to arm in his own defense, and a neutral has a perfect right to transport
his goods in a belligerent vessel. These rights do not interfere with each other. The neutral has no
control over the belligerent right to arm -- ought he to be accountable for the exercise of it?

Page 13 U. S. 427

By placing neutral property in a belligerent ship, that property, according to the positive rules of law,
does not cease to be neutral. Why should it be changed by the exercise of a belligerent right, universally
acknowledged and in common use when the rule was laid down, and over which the neutral had no
control?

The belligerent answers that by arming, his rights are impaired. By placing his goods under the guns
of an enemy, the neutral has taken part with the enemy and assumed the hostile character.

Previous to that examination which the Court has been able to make of the reasoning by which this
proposition is sustained, one remark will be made which applies to a great part of it. The argument
which, taken in its fair sense, would prove that it is unlawful to deposit goods for transportation in the
vessel of an enemy generally, however imposing its form, must be unsound, because it is in
contradiction to acknowledged law.

It is said that by depositing goods on board an armed belligerent, the right of search may be impaired,
perhaps defeated.
What is this right of search? Is it a substantive and independent right wantonly, and in the pride of
power, to vex and harass neutral commerce because there is a capacity to do so? or to indulge the idle
and mischievous curiosity of looking into neutral trade? or the assumption of a right to control it? If it be
such a substantive and independent right, it would be better that cargoes should be inspected in port
before the sailing of the vessel, or that belligerent licenses should be procured. But this is not its
character.

Belligerents have a full and perfect right to capture enemy goods and articles going to their enemy
which are contraband of war. To the exercise of that right the right of search is essential. It is a means
justified by the end. It has been truly denominated a right growing out of and ancillary to the greater
right of capture. Where this greater right may be legally exercised

Page 13 U. S. 428

without search, the right of search can never arise or come into question.

But it is said that the exercise of this right may be prevented by the inability of the party claiming it to
capture the belligerent carrier of neutral property.

And what injury results from this circumstance? If the property be neutral, what mischief is done by its
escaping a search? In so doing there is no sin, even as against the belligerent, if it can be effected by
lawful means. The neutral cannot justify the use of force or fraud, but if by means lawful in themselves
he can escape this vexatious procedure, he may certainly employ them.

To the argument that by placing his goods in the vessel of an armed enemy he connects himself with
that enemy and assumes the hostile character it is answered that no such connection exists.

The object of the neutral is the transportation of his goods. His connection with the vessel which
transports them is the same whether that vessel be armed or unarmed. The act of arming is not his --
it is the act of a party who has a right so to do. He meddles not with the armament nor with the war.
Whether his goods were on board or not, the vessel would be armed and would sail. His goods do not
contribute to the armament further than the freight he pays and freight he would pay were the vessel
unarmed.

It is difficult to perceive in this argument anything which does not also apply to an unarmed vessel. In
both instances it is the right and the duty of the carrier to avoid capture and to prevent a search. There
is no difference except in the degree of capacity to carry this duty into effect. The argument would
operate against the rule which permits the neutral merchant to employ a belligerent vessel without
imparting to his goods the belligerent character.

The argument respecting resistance stands on the same ground with that which respects arming. Both
are lawful. Neither of them is chargeable to the goods

Page 13 U. S. 429

or their owner, where he has taken no part in it. They are incidents to the character of the vessel, and
may always occur where the carrier is belligerent.

It is remarkable that no express authority on either side of this question car be found in the books. A
few scanty materials, made up of inferences from cases depending on other principles, have been
gleaned from the books and employed by both parties. They are certainly not decisive for or against
either.

The celebrated case of the Swedish convoy has been pressed into the service. But that case decided
no more than this -- that a neutral may arm, but cannot by force resist a search. The reasoning of the
judge on that occasion would seem to indicate that the resistance condemned the cargo, because it
was unlawful. It has been inferred on the one side that the goods would be infected by the resistance
of the ship, and on the other that a resistance which is lawful, and is not produced by the goods, will
not change their character.
The case of the Catharine Elizabeth approaches more nearly to that of the Nereide, because in that
case as in this there were neutral goods and a belligerent vessel. It was certainly a case not of
resistance, but of an attempt by a part of the crew to seize the capturing vessel. Between such an
attempt and an attempt to take the same vessel previous to capture there does not seem to be a total
dissimilitude. But it is the reasoning of the judge, and not his decision, of which the claimants would
avail themselves. He distinguishes between the effect which the employment of force by a belligerent
owner or by a neutral owner would have on neutral goods. The first is lawful, the last unlawful. The
belligerent owner violates no duty. He is held by force, and may escape if he can. From the marginal
note, it appears that the reporter understood this case to decide in principle that resistance by a
belligerent vessel would not confiscate the cargo. It is only in a case without express authority that such
materials can be relied on.

If the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not
the neutral character of the passengers forfeited by the same

Page 13 U. S. 430

cause? The master and crew are prisoners of war; why are not those passengers who did not engage
in the conflict also prisoners? That they are not would seem to the Court to afford a strong argument in
favor of the goods. The law would operate in the same manner on both.

It cannot escape observation that in argument the neutral freighter has been continually represented
as arming the Nereide and impelling her to hostility. He is represented as drawing forth and guiding her
warlike energies. The Court does not so understand the case. The Nereide was armed, governed, and
conducted by belligerents. With her force or her conduct the neutral shippers had no concern. They
deposited their goods on board the vessel and stipulated for their direct transportation to Buenos Ayres.
It is true that on her passage she had a right to defend herself, did defend herself, and might have
captured an assailing vessel; but to search for the enemy would have been a violation of the charter
party and of her duty.

With a pencil dipped in the most vivid colors and guided by the hand of a master, a splendid portrait
has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the
most discordant materials, of peace and war. So exquisite was the skill of the artist, so dazzling the
garb in which the figure was presented, that it required the exercise of that cold investigating faculty
which ought always to belong to those who sit on this bench to discover its only imperfection: its want
of resemblance.

The Nereide has not that centaur-like appearance which has been ascribed to her. She does not rove
over the ocean hurling the thunders of war while sheltered by the olive branch of peace. She is not
composed in part of the neutral character of Mr. Pinto and in part of the hostile character of her owner.
She is an open and declared belligerent, claiming all the rights, and subject to all the dangers of the
belligerent character. She conveys neutral property which does not engage in her warlike equipments
or in any employment she may make of them, which is put on board solely for the purpose of
transportation and which encounters the hazard incident

Page 13 U. S. 431

to its situation -- the hazard of being taken into port and obliged to seek another conveyance should its
carrier be captured.

In this it is the opinion of the majority of the Court there is nothing unlawful. The characters of the vessel
and cargo remain as distinct in this as in any other case. The sentence, therefore, of the circuit court
must be

Reversed and the property claimed by Manuel Pinto for himself and his partners, and for those other
Spaniards for whom he has claimed, be restored, and the libel as to that property be dismissed.

JOHNSON, J.
Circumstances known to this Court have imposed upon me in a great measure the responsibility of this
decision. I approach the case with all the hesitation which respect for the opinion of others and a
conviction of the novelty and importance of some of the questions are calculated to inspire. The same
respect imposes upon me an obligation briefly to state the course of reasoning by which I am led to my
conclusion.

On the minor points I feel no difficulty. There is nothing to support the charge of English domiciliation,
the charges of prevarication are satisfactorily explained, and on the question of national character we
must yet a while reluctantly yield to the acknowledgement that Buenos Ayres is not free.

On the construction of the Spanish treaty I feel as little hesitation. That a stipulation calculated solely
to produce an extension of neutral rights should involve in itself a restriction of neutral rights; that a
mutual and gratuitous concession of a belligerent right should draw after it a necessary relinquishment
of a neutral right, which has never yielded but to express and (generally) extorted stipulation are
conclusions wholly irreconcilable to any principle of logical deduction.

Nor does the argument rounded on reciprocity stand on any better ground. There is a principle of
reciprocity known to courts administering international law, but I trust it is a reciprocity of benevolence,
and that the angry passions which produce revenge and retaliation will never exert their influence on
the administration of

Page 13 U. S. 432

justice. Dismal would be the state of the world and melancholy the office of a judge if all the evils which
the perfidy and injustice of power inflict on individual man were to be reflected from the tribunals which
profess peace and goodwill to all mankind. Nor is it easy to see how this principle of reciprocity, on the
broad scale by which it has been protracted in this case, can be reconciled to the distribution of power
made in our Constitution among the three great departments of government. To the legislative power
alone it must belong to determine when the violence of other nations is to be met by violence. To the
judiciary, to administer law and justice as it is, not as it is made to be by the folly or caprice of other
nations.

The last question in the case is the only one on which I feel the slightest difficulty.

The general rule, the incontestable principle is that a neutral has a right to employ a belligerent carrier.
He exposes himself thereby to capture and detention, but not to condemnation.

To support the condemnation in this case, it is necessary to establish an exception to this rule, and it
is important to lay down the exceptions contended for with truth and precision.

In the first place, it is contended that a neutral has not a right to transport his goods on board of an
armed belligerent.

Secondly, that if this right be conceded, Pinto in this case has carried the exercise of it beyond the
duties of fair neutrality

1. By laying the vessel under the obligation of a contract to sail with convoy;

2. By chartering an entire armed vessel of the enemy, and thus expediting an armed hostile force;

3. By taking in enemy goods on freight, and thereby laying himself under an implied contract that the
armament of the vessel should be used in its defense;

Page 13 U. S. 433

4. It was also contended that he had in fact armed the vessel after chartering her and increased her
force by admitting passengers;

5. That the correspondence found on board shows that the armament was immediately directed against
capture by Americans.
On the first and principal ground much may be said, but nothing added to the ingenious discussion
which it has received from counsel.

The question is why may not a neutral transport his goods on board an armed belligerent? No writer on
the law of nations has suggested this restriction on his rights, and it can only be sustained on the ground
of its obstructing the exercise of some belligerent right. What belligerent right does it interfere with? Not
the right of search, for that has relation to the converse case; it is a right resulting from the right of
capturing enemy's goods in a neutral bottom. It must be then the right which every nation asserts of
being the sole arbiter of its own conduct towards other nations and deciding for itself whether property
claimed as neutral be owned as claimed. The question is thus fairly stated between the neutral and
belligerent. On the one hand, the neutral claims the right of transporting his goods in the hostile bottom.
On the other, the belligerent objects to his doing it under such circumstances as to impair his right of
judging, between himself and the neutral, on the neutrality of his property and conduct. The evidence
of authority, the practice of the world, and the reason and nature of things must decide between them.

All these are, in my opinion, in favor of the neutral claim.

Every writer on international law acknowledges the right of the neutral to transport his goods in a hostile
bottom. No writer has restricted the exercise of that right to unarmed ships.

Every civilized nation (with the exception of Spain) has unequivocally acknowledged the existence of
this right unless it be relinquished by express stipulation,

Page 13 U. S. 434

and even with regard to Spain the evidence is wholly unsatisfactory to prove that she maintains a
different doctrine. My present belief is that she does not, but, admit that she does and surely the practice
of one nation, and that one not the most enlightened or commercial, ought not to be permitted to control
the law of the world.

And what is the decision of reason on the merits of these conflicting pretensions?

Her first and favorite answer would be that were the scales equally suspended between the parties, the
decision ought to be given in favor of humanity.

Already is the aspect of the world sufficiently darkened by the horrors of war. It is time to listen to the
desponding claims of man engaged in the peaceful pursuits of life.

But there are considerations in favor of the neutral to which the heart need not assent -- they are
addressed to the judgment alone.

Admit the claim of the belligerent and you fritter away the right of the neutral until it is attenuated to a
vision.

Admit the claim of the neutral and it is attended with a very immaterial change in the rights and interests
of the belligerent.

Where are we to draw the line? If a vessel is not to be armed, what is to amount to an exceptionable
armament? It extends to an absolute and total privation of the right of arming a hostile ship. Resistance
and even capture is lawful to any belligerent that is attacked.

On the other hand, what injury is done to the belligerent by recognizing the right of the neutral? The
cargo of a belligerent neither adds to nor diminishes his right to resist. If empty, he must be subdued
before he can be possessed, and if laden, the right or faculty of resistance is in no wise increased. It is
inherent in her national character, and can be exercised by strict right without any reference to the
cargo that she contains.

Page 13 U. S. 435
Suppose the case of a vessel and cargo wholly neutral; even she possesses a natural right to resist
seizure, but her resistance must be effectual, or international law pronounces her forfeited. What injury
results to the belligerent cruiser? If the cargo be really neutral, the exercise of his right of judging
becomes immaterial, and if it be contraband or otherwise subject to condemnation, what reason in
nature can be assigned why the neutral owner should not throw himself upon the fortune of war and
rely upon the protection of your enemy? You treat him as an enemy, if captured, and why should not
he regard you as an enemy and provide for his defense against you? I can very well conceive that a
case may occur in which it may become the policy of this country to throw down the gauntlet to the
world and assert a different principle. But the policy of these states is submitted to the wisdom of the
legislature, and I shall feel myself bound by other reasons until the constitutional power shall decide
what modifications it will prescribe to the exercise of any acknowledged neutral right.

The second ground of exception resolves itself into several points, and presents to my mind the greatest
difficulties in the case.

1. There is a stipulation contained in the charter party that the vessel shall sail with convoy.

2. Pinto chartered the whole vessel.

3. He took in sub-affreightment of hostile goods.

4. It is contended he had contributed to the arming and manning of the vessel after chartering her.

5. And that her equipment was pointedly against American capture.

With regard to the two latter points, I am of opinion that the evidence does not prove that Pinto
contributed to the armament of the vessel, and if she was armed by the owners, that it was against
American capture is immaterial. As to the passengers, Pinto had no control over the reception of them
into the vessel. He had

Page 13 U. S. 436

taken the hold and two births in the cabin; as to the residue, it remained subject to the disposal of the
captain or owner.

With regard to the three other points, after the best consideration that I have been able to give the
subject, I satisfy my mind by two considerations.

1. I will not now give an opinion upon the abstract case of an individual neutral to all the world. It is
known that Pinto was liable to capture both by the French and Carthagenians. This justified him in
placing himself under British protection, and if, in the exercise of this unquestionable right, he has
incidentally impaired the exercise of our right of seizure for adjudication, we have nothing to complain
of. The case occurs daily, and nothing but candor and fairness can be exacted of a neutral under such
circumstances.

2. There appears to prevail much misconception with regard to the control acquired by Pinto in this
vessel under the charter party. His contract gave him the occupation of the hold of the vessel and two
births in the cabin, but went no further. Over the conduct of the master and crew in navigating or
defending the vessel it communicated to him no power. It is true that by the conduct of the master and
the fate of the vessel, he might be incidentally affected as a sub-freighter, and so far he had an interest
in her defense; still, however, it is reducible to the general interest which he had in the performance of
the voyage, and it does not appear that he ever acted under an idea of being authorized to control the
conduct of the captain or took any part in the conflict which preceded the capture.

I am of opinion that the judgment should be reversed and the property restored.

STORY, J.

My opinion will be confined to the point first argued, because it definitively disposes of the cause against
the claim of Mr. Pinto.
The facts material to this point are that Mr. Pinto chartered the Nereide, an uncommissioned armed
ship belonging to British subjects, for a voyage from London

Page 13 U. S. 437

to Buenos Ayres and back to London at a stipulated freight. The ship was to be navigated during the
voyage at the expense of the general owner, who expressly covenanted in the charter party with Mr.
Pinto that she should sail on the voyage under British convoy. Mr. Pinto, having thus hired the whole
ship, took on board sundry shipments, partly on his own or Spanish account and partly on account of
British merchants from whom he was to receive, in lieu of freight, a portion of the profits and
commissions. The Nereide sailed with her cargo under British convoy and with instructions from the
owner to the master to govern himself in relation to the objects of the charter party according to the
direction of Mr. Pinto, who accompanied the ship in the voyage. During the passage to Buenos Ayres,
the Nereide was accidentally separated from the convoy, and, while endeavoring to regain it, was, after
a vigorous but unsuccessful resistance, captured by the privateer Governor Tompkins and brought into
New York for adjudication.

It is explicitly asserted in the testimony that Mr. Pinto took no part in the resistance at the time of the
capture.

The question is whether, upon these facts, Mr. Pinto, assuming him to be a neutral, has so incorporated
himself with the enemy interests as to forfeit that protection which the neutral character would otherwise
afford him.

The general doctrine, though formerly subject to many learned doubts, is now incontrovertibly
established that neutral goods may be lawfully put on board of an enemy ship without being prize of
war. As this doctrine is asserted in the most broad and unqualified manner in publicists, it is thence
attempted to be inferred by the counsel for the claimant that no distinction can exist whether the ship
be armed or unarmed or be captured with or without resistance; arguments of this sort are liable to
many objections and are in general wholly unsatisfactory. Elementary writers rarely explain the
principles of public law with the minute distinctions which legal precision requires. Many of the most
important doctrines of the prize courts will not be found to be treated of or even glanced at in the
elaborate treatises of Grotius or Puffendorf or Vattel. A striking illustration is their total silence as to the
illegality and penal

Page 13 U. S. 438

consequences of a trade with the public enemy. Even Bynkershoek, who writes professedly on prize
law, is deficient in many important doctrines which every day regulate the decrees of prize tribunals.
And the complexity of modern commerce has added incalculably to the number as well as the intricacy
of questions of national law. In what publicist are to be found the doctrines as to the illegality of carrying
enemy dispatches and of engaging in the coasting, fishing, or other privileged trade of the enemy?
Where are transfers in transitu pronounced to be illegal? Where are accurately and systematically
stated all the circumstances which impress upon the neutral a general, or a limited, hostile character,
either by reason of his domicile, his territorial possessions, or his connection in a house of trade in the
enemy country? The search would be nearly in vain in the celebrated jurists whose authority has been
quoted to silence the present inquiry. Yet the argument would be no less forcible that these doctrines
have not a legal existence because not found in systematic treatises on the law of nations, than that
which has been so earnestly pressed upon us by the counsel for the claimants. The assumed inference
is then utterly inadmissible. The question before the Court must be settled upon other grounds -- upon
a just application of the principles which regulate neutral, as well as belligerent, rights and duties. Let
us then proceed to consider them.

It is a clear maxim of national law that a neutral is bound to a perfect impartiality as to all the belligerents.
If he incorporate himself into the measures or policy of either, if he become auxiliary to the enterprises
or acts of either, he forfeits his neutral character -- nor is this all. In relation to his commerce, he is
bound to submit to the belligerent right of search, and he cannot lawfully adopt any measures whose
direct object is to withdraw that commerce from the most liberal and accurate search without the
application on the part of the belligerent of superior force. If he resist this exercise of lawful right, or if,
with a view to resist it, he take the protection of an armed neutral convoy, he is treated as an enemy
and his property is confiscated. Nor is it at all material whether the resistance be direct or constructive.
The resistance of the convoy is the resistance of all the ships associated under the common protection,
without any

Page 13 U. S. 439

distinction whether the convoy belong to the same or to a foreign neutral sovereign -- for upon the
principles of natural justice, a neutral is justly chargeable with the acts of the party which he voluntarily
adopts or of which he seeks the shelter and protection. Quam sentit commodum sentire debet et onus -
- these principles are recognized in the memorable cases of the Maria, 1, Rob. 340, and the Elsebe, 5,
Rob. 173, and can never be shaken without delivering over to endless controversy and conflict the
maritime rights of the world.

It has however been supposed by the counsel of the claimants that a distinction exists between taking
the protection of a neutral and of a belligerent convoy. That in the former case all armament for
resistance is unlawful, but in the latter case it is not only lawful but in the highest degree commendable.
That although an unlawful act, as resistance by a neutral convoy, may justly affect the whole associated
ships, yet it is otherwise of a lawful act, as resistance of a belligerent ship, for no forfeiture can
reasonably grow out of such an act which is strictly justifiable.

The fallacy of the argument consists in assuming the very ground in controversy and in confounding
things in their own nature entirely distinct. An act perfectly lawful in a belligerent may be flagrantly
wrongful in a neutral. A belligerent may lawfully resist search; a neutral is bound to submit to it. A
belligerent may carry on his commerce by force; a neutral cannot. A belligerent may capture the
property of his enemy on the ocean; a neutral has no authority whatever to make captures. The same
act, therefore, that with reference to the rights and duties of the one may be tortious may, with reference
to the rights and duties of the other, be perfectly justifiable. The act, then, as to its character is to be
judged of not merely by that of the parties through whose immediate instrumentality it is done, but also
by the character of those who, having cooperated in, assented to, or sought protection from it, would
yet withdraw themselves from the penalties of the act. It is analogous to the case at common law where
an act justifiable in one party does not, from that fact alone, shelter his coadjutor. They must stand or
fall upon

Page 13 U. S. 440

their own merits. It would be strange indeed if, because a belligerent may kill his enemy, a neutral may
aid in the act, or because a belligerent may resist search, a neutral may cooperate to make it effectual.
It is therefore an assumption utterly inadmissible that a neutral can avail himself of the lawful act of an
enemy to protect himself in an evasion of a clear belligerent right.

And what reason can there be for the distinction contended for? Why is the resistance of the convoy
deemed the resistance of the whole neutral associated ships, let them belong to whom they may? It is
not that there is a direct and immediate cooperation in the resistance, because the case supposes the
contrary. It is not that the resistance of the convoy of the sovereign is deemed an act to which all his
own subjects consent, because the ships of foreign subjects would then be exempted. It is because
there is a constructive resistance resulting in law from the common association and voluntary protection
against search under a full knowledge of the intentions of the convoy? Then the principle applies as
well to a belligerent as to a neutral convoy? For it is manifest that the belligerent will at all events resist
search, and it is quite as manifest that the neutral seeks belligerent protection with an intent to evade
it. Is it that an evasion of search, by the employment, protection, or terror of force is inconsistent with
neutral duties? Then a fortiori the principle applies to a case of belligerent convoy, for the resistance
must be presumed to be more obstinate and the search more perilous.

There can be but little doubt that it is upon the latter principles that the penalty of confiscation is applied
to neutrals. The law proceeds yet further and deems the sailing under convoy as an act per
se inconsistent with neutrality, as a premeditated attempt to oppose, if practicable, the right of search,
and therefore attributes to such preliminary act the full effect of actual resistance. In this respect it
applies a rule analogous to that in cases of blockade, where the act of sailing with an intent to break a
blockade is deemed a sufficient breach to authorize confiscation. And Sir W. Scott manifestly
recognizes the correctness of this doctrine in the Maria,
Page 13 U. S. 441

although the circumstances of that case did not require its rigorous application.

Indeed, in relation to a neutral convoy, the evidence of an intent to resist, as well as of constructive
resistance, is far more equivocal than in case of a belligerent convoy. In the latter case it is necessarily
known to the convoyed ships that the belligerent is bound to resist and will resist until overcome by
superior force. It is impossible, therefore, to join such convoy without an intention to receive the
protection of belligerent force in such manner and under such circumstances as the belligerent may
choose to apply it. It is an adoption of his acts and an assistance of his interests during the assumed
voyage. To render the convoy an effectual protection, it is necessary to interchange signals and
instructions, to communicate information, and to watch the approach of every enemy. The neutral
solicitously aids and cooperates in all these important transactions, and thus far manifestly sides with
the belligerent and performs, as to him, a meritorious service -- a service as little reconcilable with
neutral duties as the agency of a spy or the fraud of a bearer of hostile dispatches. In respect to a
neutral convoy, the inference of constructive cooperation and hostility is far less certain and direct. To
condemn in such case is pushing the doctrine to a great extent, since it is acting upon the presumption,
which is not permitted to be contradicted, that all the convoyed ships distinctly understood and adopted
the objects of the convoy and intimately blended their own interests with hostile resistance.

There is not, then, the slightest reason for the favorable distinction as to the belligerent convoy assumed
by counsel. On the contrary, every presumption of hostility is in such case more violent, and every
suspicion of unneutral conduct more inflamed. And so in the argument of the Maria, 1 Rob. 346, it was
conceded by the counsel for the claimants and recognized by the court. It was there said by counsel
that it seemed admitted by the court on a former day that there was a just distinction to be made
between the two cases of convoy, viz., between the convoy of an enemy's force and a neutral convoy;
that the former (i.e. enemy convoy) would stamp a primary character of hostility on all ships

Page 13 U. S. 442

sailing under its protection, and it would rest on the parties to take themselves out of the presumption
raised against them, but that even in that case it would be nothing more than a presumption, which had
been determined by a late case before the Lords, the Sampson, an asserted American ship sailing with
French cruisers at the time they engaged some English ships, and communicating with the French
ships by signal for battle. That in that case, although there had been a condemnation in the court below,
the Lords sent it to further proof to ascertain whether there had been an actual resistance. Sir Wm.
Scott emphatically observed

"I do not admit the authority of that case to the extent to which you push it. That question is still reserved,
although the Lords might wish to know as much of the facts as possible."

It is clear from this language that the learned judge did not admit that the party could be legally permitted
to contradict the presumption of hostility attached to the sailing under an enemy convoy. On the
contrary, he seemed to consider that the primary character of hostility, which, it was conceded on all
sides, was stamped upon such conduct, could not be permitted to be rebutted, but was conclusive upon
the party. The case of the Sampson was originally heard before the court of vice admiralty, and the
decree of condemnation was never disapproved of, if not ultimately affirmed, by the Lords of Appeal. I
have been assured by very respectable authority that no proof of actual resistance ever was or could
have been made on the final hearing. The case therefore affords a strong inference of the law as
understood and administered in the prize courts of Great Britain.

And it may be added in corroboration that in Smart v. Wolff, 3 T.R. 323, 332, Sir W. Scott (then Advocate
General) asserted, without hesitation, that if the neutral refused search or sailed under convoy of the
enemy's ships of war or conveyed intelligence to the enemy, they are waivers of the rights of neutrality.
The very circumstance of his putting these three cases in connection to illustrate his general argument
affords the most cogent proof that he considered himself as stating a doctrine equally clear and well
established as to all of them.

Page 13 U. S. 443
And this doctrine seems conformable to the sense of other European sovereigns. In the recent cases
of the American ships captured while under British convoy by the Danes, the right of condemnation
was not only asserted and enforced by the highest tribunal of prize, but expressly affirmed by the Danish
sovereign after an earnest appeal made by the government of the United States. On that occasion the
Danish minister pressed the argument

"that he who causes himself to be protected by that act (i.e. enemy convoy) ranges himself on the side
of the protector, and thus puts himself in opposition to the enemy of the protector, and evidently
renounces the advantages attached to the character of a friend to him against whom he seeks the
protection. If Denmark should abandon this principle, the navigators of all nations would find their
account in carrying on the commerce of Great Britain, under the protection of English ships of war
without any risk,"

and he further declared "that none of the powers in Europe has called in question the justice of this
principle." State Papers 1811, p. 527.

It cannot be denied that our own government has acquiesced in the truth and correctness of this
statement. And if to the general silence of the other European sovereigns we add the positive examples
of Great Britain and Denmark (the latter of which has not of late years been deficient in zeal for neutral
rights), it seems difficult to avoid the conclusion that the doctrine is as well founded in national law as
it seems to me to be in justice and sound policy.

Another argument which has been urged in favor of the assumed distinction ought not, however, to be
omitted. It is that a party, neutral as to one power, may be

Page 13 U. S. 444

an enemy as to another power, and he may lawfully place himself under belligerent convoy to escape
from his own enemy. In such a predicament, it is therefore always open to the neutral to explain his
conduct in taking convoy, and to show by proofs his innocent intentions as to all friendly belligerents.
In my judgment, this supposed state of things would not remove a single difficulty.

It is not in relation to enemies that the question as to taking convoy can ever arise. It has reference only
to the rights of friendly belligerents, and these rights remain precisely the same whatever may be the
peculiar situation of the neutral as to third parties. Was it ever heard of that a neutral might lawfully
resist the right of search of one power because he was at war with another? And is not the evasion of
this right just as injurious whether the neutral be at peace with all the world or with a part only?

There would be extreme difficulty in establishing by any disinterested testimony the fact of any such
special intentions as the argument supposes. Independent of this difficulty, it would in effect be an
attempt to repel by positive testimony a conclusive inference of law flowing from the very act of taking
convoy. The belligerent convoy is bound to resist all visitations by enemy ships, whether neutral to the
convoyed ships or not. This obligation is distinctly known to the party taking its protection. If, therefore,
he choose to continue under the convoy, he shows an intention to avail himself of its protection under
all the chances and hazards of war. The abandonment of such intention cannot be otherwise evidenced
than by the overt act of quitting convoy. And it is impossible to conceive that the mere secret wishes or
private declarations of a party could prevail over his own deliberate act of continuing under convoy
unless courts of prize would surrender themselves to the most stale excuses and imbecile artifices. It
would be in vain to administer justice in such courts if mere statements of intention would outweigh the
legal effects of the acts of the parties. Besides, the injury to the friendly belligerent is equally great
whatever might be the special objects of the neutral. The right of search is effectually prevented by the
presence of superior

Page 13 U. S. 445

force, or exercised only after the perils and injuries of victorious warfare. And it is this very evasion of
the right of search that constitutes the ground of condemnation in ordinary cases. The neutral in effect
declares that he will not submit to search until the enemy convoy is conquered, and then only because
he cannot avoid it. The special intention of the neutral then could not, if proved, upon principle prevail,
and it has not a shadow of authority to sustain it. The argument upon this point was urged in the Maria
and Elsebe, and was instantly repelled by the court.

On the whole, on this point my judgment is that the act of sailing under belligerent or neutral convoy is
of itself a violation of neutrality, and the ship and cargo, if caught in delicto, are justly confiscable, and
further that if resistance be necessary, as in my opinion it is not, to perfect the offense, still that the
resistance of the convoy is to all purposes the resistance of the associated fleet. It might with as much
propriety be maintained that neutral goods, guarded by a hostile army in their passage through a
country or voluntarily lodged in a hostile fortress for the avowed purpose of evading the municipal rights
and regulations of that country, should not in case of capture be lawful plunder (a pretension never yet
asserted), as that neutral property on the ocean should enjoy the double protection of war and peace.

If these principles be correct, it remains to be considered how far the conduct of Mr. Pinto brings him
within the range of their influence. It is clear that in the original concoction of the voyage it was his
intention to avail himself of British convoy. The covenant in the charter party demonstrates this intention;
a covenant that, from its terms, being made by the ship owner, must have been inserted for the benefit
and at the instance of the charterer. Under the faith of this stipulation, Mr. Pinto put his own property
on board and received shipments from persons of an acknowledged hostile character. The ship sailed
on the voyage under British convoy, with Mr. Pinto on board, and though captured after a separation
from the convoy, she was in the very attempt to rejoin it. There is no pretense, therefore, of an
abandonment of the convoy, and the

Page 13 U. S. 446

corpus delicti, the character of hostility, impressed by the sailing under convoy, if any attached,
remained notwithstanding the separation. It is like the sailing for a blockaded port, where the offense
continues, although at the moment of capture the ship be, by stress of weather, driven in a direction
from the port of destination, for the hostile intention still remains unchanged.

And here, to avoid the effect of the general doctrine, we are met with another distinction founded upon
the supposed difference between a belligerent and a neutral merchant ship as to the taking of convoy.
It is argued that the belligerent ship has an undoubted right to take the protection of the convoy of the
nation to which she belongs, and that this extends a perfect and lawful immunity to the neutral cargo
on board.

It is certainly incumbent on the counsel for the claimant to support this exception to the general rule by
precedent or analogy. Nothing has been offered which, in my judgment, affords it the slightest support.
It is not true that a neutral can shelter his property from confiscation behind an act lawful in a belligerent.
The law imputes to the neutral the consequences of the act if he might have foreseen and guarded
against it or if he voluntarily adopts it. Was it ever supposed that a neutral cargo was protected from
seizure by going in a belligerent ship to a blockaded port? or that contraband goods, belonging to a
neutral, were exempted from confiscation because on board of such a ship bound on a voyage lawful
to the belligerent, but not to the neutral? Yet the pretensions in these cases seem scarcely more
extravagant than that now urged. Why should a neutral be permitted to do that indirectly which he is
prohibited from doing directly? Why should he aid the enemy by giving extraordinary freight for
belligerent ships sailing under belligerent convoy with the avowed purpose of escaping from search,
and often with the concealed intention of aiding belligerent commerce, and yet claim the benefits of the
most impartial conduct? Until some more solid ground can be laid for the distinction than the ingenuity
of counsel has yet suggested, it would seem fit to declare ita lex non scripta est.

But even if the distinction existed, it could not apply

Page 13 U. S. 447

to the case at bar. This is a case where the claimant becomes the charterer of the whole vessel for the
voyage and stipulates for the express benefit of convoy. The ship, though navigated by a belligerent
master and crew, was necessarily under the control and management of the charterer. He was the real
effective dux negotii. Whatever may be the technical doctrine of the common or prize law as to the
general property in the ship, the charterer was, to all purposes important in this inquiry, the owner for
the voyage, and the master his agent. Can there be a doubt that, as to the shipments of the enemy
freighters, Mr. Pinto was responsible for the acts of the master? Was he not materially interested in the
safety and protection of these shipments in respect to freight, commissions, and profits? If they had
been lost by capture, from the negligence of Mr. Pinto or of the master when by ordinary diligence and
resistance the loss might have been avoided, would not Mr. Pinto have been responsible? How then it
can be consistently held that the ship was not essentially governed and managed by Mr. Pinto, and all
her conduct incorporated with his interests, I profess to be unable to comprehend. For what purpose
should be insist on a covenant for convoy if he never meant to derive aid and protection from it to the
whole cargo on board and to range himself and his interests on the side of resistance? His private
conduct at the time of the capture, when resistance was almost hopeless, affords no evidence to repel
the irresistible presumptions from his deliberate acts.

And here again it has been argued that Mr. Pinto had no hostile intentions against the United States,
but that the taking of convoy was simply to resist the French and Carthagenians, who are the enemies
of his own country. If such special intention could in point of law uphold his claim which, for the reasons
already stated, I am entirely satisfied it could not, yet there is not, in the present case, within my
recollection, any proof of such special intention. It rests upon the mere suggestions of counsel. How,
indeed, could Mr. Pinto show that he meant to yield his property to the search of the cruisers of the
United States when the deliberate act of assuming British convoy precluded the possibility of its
exercise unless acquired by victory after resistance?

Page 13 U. S. 448

If this view of the case be correct, it must be pronounced that Mr. Pinto, by voluntarily sailing under
convoy, forfeited his neutrality and bound his property to an indissolubly hostile character.

This, however, is not the only ground upon which the claim of Mr. Pinto ought to be repudiated. There
was not merely the illegality of sailing under enemy convoy up to the very eve of capture, but the fact
of actual resistance of the chartered ship and submission to search only in consequence of superior
force.

An attempt, however, is made to extract the case at bar from the penalty of confiscation attached to
resistance of search upon the ground that Mr. Pinto took no part in this resistance. It is asserted that a
shipper in a general ship is not affected by the act of the enemy master; that the charterer of the whole
ship is entitled to as favorable a consideration; and that there is no difference in point of law whether
the ship have or have not a commission or be, or be not armed. It will be necessary to give to these
positions a full examination.

In the first place, it is to be considered whether a neutral shipper has a right to put his property on board
of an armed belligerent ship without violating his neutral duties. If the doctrine already advanced on the
subject of convoy be correct, it is incontestable that he has no such right. If he cannot take belligerent
convoy, a fortiori he cannot put his property on board of such convoy, or, what is equivalent, on board
of an armed and commissioned ship of the belligerent. What would be the consequences if neutrals
might lawfully carry on all their commerce in the frigates and ships of war of another belligerent
sovereign? That there would be a perfect identity of interests and of objects, of assistance and of
immunity, between the parties. The most gross frauds and hostile enterprises would be carried on under
neutral disguises, and the right of search would become as utterly insignificant in practice as if it were
extinguished by the common consent of nations. The extravagant premiums and freights which neutrals
could well afford to pay for this extraordinary protection would enable the belligerent to keep up
armaments of incalculable

Page 13 U. S. 449

size, to the dismay and ruin of inferior maritime powers. Such false and hollow neutrality would be
infinitely more injurious than the most active warfare. It would strip from the conqueror all the fruits of
victory, and lay them at the feet of those whose singular merit would consist in evading his rights, if not
in collusively aiding his enemy. It is not therefore to be admitted that a neutral may lawfully place his
goods under armed protection, on board of an enemy ship. Nor can it be at all material whether such
armed ship be commissioned or not; that is an affair exclusively between a sovereign and his own
subjects, but is utterly unimportant to the neutral. For whether the armament be employed for offense,
or for defense, in respect to third parties, the peril and the obstruction to the right of search are equally
complete. Nor is it true, as has been asserted in argument, that a noncommissioned armed ship has
no right to capture an enemy ship except in her own defense. The act of capture without such pretext,
so far from being piracy, would be strictly justifiable upon the law of nations, however it might stand
upon the municipal law of the country of the capturing ship. Vattel has been quoted to the contrary, but
on a careful examination it will be found that his text does not warrant the doctrine.

I have had occasion to consider this point in another cause in this Court, and to the opinion then
delivered I refer for a more full discussion of it. If the subject capture without a commission, he can
acquire no property to himself in the prize, and if the act be contrary to the regulations of his own
sovereign, he may be liable to municipal penalties for his conduct. But as to the enemy, he violates no
rights by the capture. Such, on an accurate consideration, will be found to be the doctrine of Puffendorf
and Grotius and Bynkershoek, and they stand confirmed by a memorable decision of the Lords of
Appeal in 1759. 2 Brown's Civil & Adm.App. 524; Grotius, lib. 3, ch. 6, s. 8, 9, 10, and Barbeyrac's note
on s. 8; Puffendorf, lib. 8, ch. 6, s. 21, &c.; Bynk. 2, P.J. ch. 3, 4, 16, 17; 2 Woodes.Lect. 432;
Consol.del.Mare ch. 287-288; 4 Inst. 152, 154; Zouch Adm. 101; Casaregis Disc. 24 n. 24; Com.Dig.
Admiralty E.; Buls. c. 27.

Admitting, however (what to me seems utterly inadmissible),

Page 13 U. S. 450

that a neutral may lawfully ship his goods on board the armed ship of an enemy, it will be of little avail
unless he is exempted from the consequences of all the acts of such enemy. If the shipment be
innocent, it will be of little avail in this case, if the resistance of the enemy master will compromit the
neutral character of the cargo. To the establishment, therefore, of such an exemption, the exertions of
counsel have been strenuously directed. It has been inferred from the silence of elementary writers,
from the authority of analogous cases, and from the positive declarations of the court, in the Catherina
Elizabeth, 5 Rob. 206.

The argument drawn from the silence of jurists has been already sufficiently answered. It remains to
consider that which is urged upon the footing of authority. The reasoning from supposed analogous
cases is quite as unsatisfactory. It is not true as to neutrals that the act of the master never binds the
owner of the cargo unless the master is proved to be the actual agent of the owner. The act of the
master may be and very often is conclusive upon the cargo, although no general agency is established.
Suppose he violate a blockade, suppress and fraudulently destroy the ship's papers, or mix up under
the same cover enemy interests, will not the cargo share the fate of the ship? The cases cited are mere
exceptions to the general rule. They in general turn upon a settled distinction that the act of the master
shall not bind the cargo where the act under the circumstances could not have been within the scope
or contemplation of the shipper at the time of shipment, or where his ignorance of the voyage and of
the intended acts of the master is placed beyond the possibility of doubt. See The Adams, 5 Rob. 256.
The very case of resistance is a strong illustration of the principle. The resistance of the neutral master
has been deliberately held to be conclusive on the neutral cargo. The Elzebe, 5 Rob. 173; The
Catherina Elizabeth, 5 Rob. 206. What reason can there be for a different rule in respect to a belligerent
master?

It must be admitted that the language of the court in the case of the Catherina Elizabeth would at first
view seem to support the position of the claimant's counsel. On a close examination, however, it will
not be found to

Page 13 U. S. 451

assert so broad a doctrine. The case was of a rescue attempted by an enemy master having on board
a neutral cargo, and this rescue attempted not of the captured, but of the capturing, ship. It was argued
that this resistance of the master exposed the whole cargo entrusted to his management to confiscation.
The court held that no such penalty was incurred. That the resistance could only be the hostile act of a
hostile person who was a prisoner of war and who, unless under parole, had a perfect right to
emancipate himself by seizing his own vessel. That the case of a neutral master differed from that of
an enemy master. No duty was violated by such an act on the part of the latter; lupum auribus
teneo, and if he could withdraw himself he had a right so to do. And that a material fact in the case was
that the master did not attempt to withdraw his property, but to rescue the ship of the captor and not his
own vessel. Such was the decision of the court, upon which several observations arise. In the first
place, the resistance was not made previous to the capture, and therefore whatever may be the extent
of the language, it must be restrained to the circumstances of the case in judgment; otherwise it would
be extrajudicial. In the next place, it would be impossible to conceive how the fact as to what vessel
was seized could be material if the argument of the present claimant be correct, for in all events the
resistance as to the cargo would be without any legal effects. In the last place, it is clear that the case
is put by the court upon the ground that the master at the time of the act had been dispossessed of his
vessel by capture, and was a prisoner of war. He was therefore no longer acting as master of the ship
and had no further management of her. His rights and duties as master had entirely ceased by the
capture, and there could be no pretense to affect the ship or cargo with his subsequent acts any more
than with the acts of any other stranger. The case would have been entirely different with a neutral
master, whose relation to his ship continues notwithstanding a capture and carrying in for adjudication.
The case therefore admits of sound distinctions from that at bar, and cannot be admitted to govern it.

There is another text, not cited in the argument, which may be thought to favor the doctrine of the
claimant's counsel. It is the only passage bearing on the subject in

Page 13 U. S. 452

controversy which has fallen under my notice in any elementary work. Casaregis, in his commercial
discourses, Disc. 24, n. 22, has the following remarks:

"Verum tamen notandum est quod si navis inimica onerata mercibus mercatorum amicorum aggressa
fuerit alteram inimicam et mercatores aut domini mercium operam ac industriam dedissent pro ea
aggredienda tunc merces dominorum cadunt etiam sub proeda, si navis predicta onerata mercibus
fuerit depraedata, &c., et regulariter bona eorum qui auxilium inimices nostris praestant vel confederati
cum iis sunt, praedari possunt."

It is obvious that Casaregis is here considering the case of an attack of an enemy merchant ship, laden
with a neutral cargo, upon the ship of its enemy in which the former is unsuccessful and is captured.
Under such circumstances he holds that if the neutral shippers, or the persons having the management
of the cargo (domini mercium) have aided in the attack, the cargo is forfeited upon the ground that all
who assist or confederate with an enemy are liable to be plundered by the law of war. He does not
touch the case where an enemy merchant ship simply makes resistance in her own defense, or resists
the right of search, nor how far the master of such ship is the dominus mercium, or can by his own acts
bind the cargo. Much less has he discussed the question as to what acts amount to an incorporation
into the objects and interests of the enemy, so as to affix a hostile character. It does not seem to me
that his text can be an authority beyond the terms in which it is expressed. It pronounces affirmatively
that a cooperation in an attack will induce confiscation of the cargo (which cannot be doubted), but it
does not pronounce negatively that the resistance of an enemy master will not draw after it the same
penalty. And if it were otherwise, it would deserve consideration whether the opinion of a mere
elementary writer, respectable as he may be, delivered at a time when the prize law was not as well
settled as it has been in the present age, should be permitted to regulate the maritime rights of
belligerent nations.

The argument, then, on the footing of authority, fails, for none is produced which directly points at
circumstances like those in the case at bar. And upon principle it seems quite as difficult to support it. I
am unable

Page 13 U. S. 453

to perceive any solid foundation on which to rest a distinction between the resistance of a neutral and
of an enemy master. The injury to the belligerent is in both cases equally great, for it equally withdraws
the neutral property from the right of search unless acquired by superior force. And until it is established
that an enemy protection legally suspends the right of search, it cannot be that resistance to such right
should not be equally penal in each party. I have therefore no difficulty in holding that the resistance of
the ship is in all cases the resistance of the cargo, and that it makes no difference whether she be
armed or unarmed, commissioned or uncommissioned. He who puts his property on the issue of battle
must stand or fall by the event of the contest. The law of neutrality is silent when arms are appealed to
in order to decide rights, and the captor is entitled to the whole prize won by his gallantry and valor.
This opinion is not the mere inference, strong as it seems to me to be, of general reasoning. It is fortified
by the consideration that in the earliest rudiments of prize law, in the great maritime countries of Great
Britain and France, confiscation is applied by way of penalty for resistance of search to all vessels,
without any discrimination of the national character of the vessels or cargoes. The black book of the
admiralty expressly articulates that any vessel making resistance may be attacked and seized as
enemies, and this rule is enforced in the memorable prize instructions of Henry VIII, Clerk's Praxis 164,
Rob. Collect.Marit. 10 and note, and p. 118. The ordinance of France of 1584 is equally broad, and
declares all such vessels good prize, and this has ever since remained a settled rule in the prize code
of that nation.

Valin informs us that it is also the rule of Spain, and that in France it is applied as well to French vessels
and cargoes as to those of neutrals and allies, Coll.Marit 118; Valin, Traits des Prizes, ch. 5, 8, p. 80.
There is not to be found in the maritime code of any nation or in any commentary thereon the least
glimmering of authority that distinguishes, in cases of resistance, the fate of the cargo from that of the
ship. If such a distinction could have been sustained, it is almost incredible that not a single ray of light
should have beamed upon it during the long lapse of ages in which maritime warfare

Page 13 U. S. 454

has engaged the world. And if any argument is to be drawn from the silence of authority, I know not
under what circumstances it can be more forcibly applied than against the exception now contended
for.

But even if it were conceded that a neutral shipper in a general ship might be protected, the concession
would not assist the present claimant. His interests were so completely mixed up and combined with
the interests of the enemy, the master was so entirely his agent under the charter party, that it is
impracticable to extract the case from the rule that stamps Mr. Pinto with a hostile character. The whole
commercial enterprise was radically tainted with a hostile leaven. In its very essence it was a fraud
upon belligerent rights. If for a moment it could be admitted that a neutral might lawfully ship goods in
an armed ship of an enemy, or might charter such a ship and navigate her with a neutral crew, these
admissions would fall far short of succoring the claimant. He must successfully contend for broader
doctrines -- for doctrines which, in my humble judgment, are of infinitely more dangerous tendency than
any which Schlegel and Hubner, the champions of neutrality, have yet advanced into the field of
maritime controversy. I cannot bring my mind to believe that a neutral can charter an armed enemy
ship, and victual and man her with an enemy crew (for though furnished directly by the owner, they are
in effect paid and supported by the charterer), with the avowed knowledge and necessary intent that
she should resist every enemy; that he can take on board hostile shipments on freight, commissions
and profits; that he can stipulate expressly for the benefit and use of enemy convoy and navigate during
the voyage under its guns and protection; that he can be the entire projector and conductor of the
voyage, and cooperate in all the plans of the owner to render resistance to search secure and effectual,
and that yet, notwithstanding all this conduct, by the law of nations he may shelter his property from
confiscation and claim the privileges of an inoffensive neutral. On the contrary it seems to me that such
conduct is utterly irreconcilable with the good faith of a friend and unites all the qualities of the most
odious hostility. It wears the habiliments of neutrality only when the sword and the armor of an enemy
become

Page 13 U. S. 455

useless for defense. If it be, as it undoubtedly is, a violation of neutrality to engage in the transport
service of the enemy or to carry his dispatches even on a neutral voyage, how much more so must it
be to enlist all our own interests in his service and hire his arms and his crew in order to prevent the
exercise of those rights which, as neutrals, we are bound to submit to? The doctrine is founded in most
perfect justice, that those who adhere to an enemy connection shall share the fate of the enemy.

On the whole, in every view which I have been able to take of this subject, I am satisfied that the claim
of Mr. Pinto must be rejected and that his property is good prize to the captors. And in this opinion I am
authorized to state that I have the concurrence of one of my brethren. It is matter of regret that in this
conclusion I have the misfortune to differ from a majority of the Court, for whose superior learning and
ability I entertain the most entire respect. But I hold it an indispensable duty not to surrender my own
judgment because a great weight of opinion in against me -- a weight which no one can feel more
sensibly than myself. Had this been an ordinary case, I should have contented myself with silence; but
believing that no more important or interesting question ever came before a prize tribunal, and that the
national rights suspended on it are of infinite moment to the maritime world, I have thought it not unfit
to pronounce my own opinion, diffident indeed of its fullness and accuracy of illustration but entirely
satisfied of the rectitude of its principles.

5 F.2d 838 (1925)

THE OVER THE TOP. SCHROEDER v. BISSELL, Collector.

THOMAS, District Judge.

On November 7, 1924, Schroeder, the owner of the cargo, brought an application against the
collector of customs for the Port of Connecticut to show cause why the cargo of liquor should not be
returned to him. This application was returnable November 11, 1924. This proceeding was entered on
the docket and is known as equity No. 1746. Following this rule to show cause and on November 12,
1924, the United States filed a libel of forfeiture against the schooner itself, and this proceeding is
entered on the docket as No. 2797, in admiralty. On the same day, the government filed two libels
against the cargo, and those cases are entered on the docket and known as No. 2796 and No. 2798,
in admiralty. The trial on the issues raised by the libels and respective answers was had on January
16, 1925, and as these cases were tried together, they will all be discussed and decided in one
opinion.

From the evidence I find the following facts established: On August 27, 1924, the schooner Over the
Top, carrying a cargo of whisky and operating under the British flag and under British registry, cleared
for Cuba from St. Johns, New Brunswick. It arrived at a point off the coast of Block Island several weeks
prior to October 19, 1924. The schooner was chartered by one A. L. Schroeder, the owner of the cargo,
who operates in Montreal but whose residence or citizenship is undisclosed.

On the 19th of October, 1924, at about 10 o'clock in the evening, the supercargo on board the schooner
sold 25 cases of whisky for $550 to a special agent of the Internal Revenue Department. The sale was
made in the presence of the captain, and thereupon the crew of the vessel, in the presence and under
the direction of the captain, unloaded these cases of whisky and transferred the same to a sea sled
employed in the government service. Both captain and supercargo knew that the whisky so transferred
was to be transported to a point on the adjacent coast, but neither one of them knew that the sea sled
or the men on it were in the government service. The transaction occurred at a point approximately 19
miles distant from the shore, or 115 degrees true from the southeast light of Block Island, and within
one hour's running distance as computed by the possible speed of the sea sled when running empty
and in the daytime. The sea sled thereupon proceeded to the United States coast guard cutter Tampa,
and 23 of the cases were unloaded on board the Tampa, and the other two cases were landed at New
London.

On the following day, Over the Top was seized by officers of the United States coast guard, and the
captain and crew were placed under arrest, and the ship and her cargo were towed into the Port of
New London and turned over to the collector of customs and are now in his custody.

I further find that the schooner had been hovering for some time off the coast of the United States at
the point where she was seized, and that those in command were engaged during that period in selling
liquor and delivering the same to boats proceeding from the coast of the United States and returning
thereto. The testimony seems to support the conclusion that business was slow.

Upon these facts, the United States demands judgment decreeing the forfeiture and sale of the ship
and cargo. The owner of the ship and the owner of the cargo have appeared separately, but the trial
of *840 the three actions was consolidated, and, as will be seen in the sequel, the principles of law
governing are applicable alike to both the schooner and cargo.

The government bases its claim of forfeiture upon the alleged violation of sections 447, 448, 450, 453,
585, 586, 593, and 594 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, 5841e16, 5841e17,
5841e19, 5841e22, 5841h4, 5841h5, 5841h12-5841h14), as well as upon the provisions of the
American-British Treaty which became effective May 22, 1924. The above sections of the Tariff Act
provide as follows:

"Sec. 447. Unlading Place. It shall be unlawful to make entry of any vessel or to unlade the cargo or
any part thereof of any vessel elsewhere than at a port of entry: Provided, that upon good cause therefor
being shown, the Secretary of Commerce may permit entry of any vessel to be made at a place other
than a port of entry designated by him, under such conditions as he shall prescribe: And provided
further, that any vessel laden with merchandise in bulk may proceed after entry of such vessel to any
place designated by the Secretary of the Treasury for the purpose of unlading such cargo, under the
supervision of customs officers if the collector shall consider the same necessary, and in such case the
compensation and expenses of such officers shall be reimbursed to the government by the party in
interest.

"Sec. 448. Same Preliminary Entry Permit. Except as provided in section 441 of this act, no
merchandise, passengers, or baggage shall be unladen from any vessel or vehicle arriving from a
foreign port or place until entry of such vessel or report of the arrival of such vehicle has been made
and a permit for the unlading of the same issued by the collector: Provided, that the master may make
a preliminary entry of a vessel by making oath or affirmation to the truth of the statements contained in
the vessel's manifest and delivering the manifest to the customs officer who boards such vessel, but
the making of such preliminary entry shall not excuse the master from making formal entry of his vessel
at the custom house, as provided by this act. After the entry, preliminary or otherwise, of any vessel or
report of the arrival of any vehicle, the collector may issue a permit to the master of the vessel, or to
the person in charge of the vehicle, to unlade merchandise or baggage, but merchandise or baggage
so unladen shall be retained at the place of unlading until entry therefor is made and a permit for its
delivery granted, and the owners of the vessel or vehicle from which any imported merchandise is
unladen prior to entry of such merchandise shall be liable for the payment of the duties accruing on any
part thereof that may be removed from the place of unlading without a permit therefor having been
issued. Any merchandise or baggage so unladen from any vessel or vehicle for which entry is not made
within forty-eight hours exclusive of Sunday and holidays from the time of the entry of the vessel or
report of the vehicle, unless a longer time is granted by the collector, as provided in section 484, shall
be sent to the public stores and held as unclaimed at the risk and expense of the consignee in the case
of merchandise and of the owner in the case of baggage, until entry thereof is made."

"Sec. 450. Same Sundays and Holidays. No merchandise, baggage, or passengers arriving in the
United States from any foreign port or place, and no bonded merchandise or baggage being transported
from one port to another, shall be unladen from the carrying vessel or vehicle on Sunday, a holiday, or
at night, except under special license granted by the collector under such regulations as the Secretary
of the Treasury may prescribe."

"Sec. 453. Penalty for Violation. If any merchandise or baggage is laden on, or unladen from, any
vessel, or vehicle without a special license or permit therefor issued by the collector, the master of such
vessel or the person in charge of such vehicle and every other person who knowingly is concerned, or
who aids therein, or in removing or otherwise securing such merchandise or baggage, shall each be
liable to a penalty equal to the value of the merchandise or baggage so laden or unladen, and such
merchandise or baggage shall be subject to forfeiture, and if the value thereof is $500 or more, the
vessel or vehicle on or from which the same shall be laden or unladen shall be subject to forfeiture."

"Sec. 585. Departure Before Report or Entry. If any vessel or vehicle from a foreign port or place arrives
within the limits of any collection district and departs or attempts to depart, except from stress of weather
or other necessity, without making a report or entry under the Provisions of this Act, or if any
merchandise is unladen therefrom before such report or entry, the master of such vessel shall be liable
to a penalty of $5,000, and the person in charge of such vehicle shall be liable to a penalty of $500,
and any such vessel or vehicle shall be *841 subject to forfeiture, and any customs or coast guard
officer may cause such vessel or vehicle to be arrested and brought back to the most convenient port
of the United States.

"Sec. 586. Unlawful Unlading Exception. The master of any vessel from a foreign port or place who
allows any merchandise (including sea stores) to be unladen from such vessel at any time after its
arrival within four leagues of the coast of the United States and before such vessel has come to the
proper place for the discharge of such merchandise, and before he has received a permit to unlade,
shall be liable to a penalty equal to twice the value of the merchandise but not less than $1,000, and
such vessel and the merchandise shall be subject to seizure and forfeiture: Provided, that whenever
any part of the cargo or stores of a vessel has been unladen or transshipped because of accident,
stress of weather, or other necessity, the master of such vessel shall, as soon as possible thereafter,
notify the collector of the district within which such unlading or transshipment has occurred, or the
collector within the district at which such vessel shall first arrive thereafter, and shall furnish proof that
such unlading or transshipment was made necessary by accident, stress of weather, or other
unavoidable cause, and if the collector is satisfied that the unlading or transshipment was in fact due
to accident, stress of weather, or other necessity the penalties above described shall not be incurred."

"Sec. 593. Smuggling and Clandestine Importations. (a) If any person knowingly and willfully, with intent
to defraud the revenue of the United States, smuggles, or clandestinely introduces, into the United
States any merchandise which should have been invoiced, or makes out or passes, or attempts to
pass, through the custom house any false, forged, or fraudulent invoice, every such person, his, her,
or their aidors and abettors, shall be deemed guilty of a misdemeanor, and on conviction thereof shall
be fined in any sum not exceeding $5,000, or imprisoned for any term of time not exceeding two years,
or both, at the discretion of the court.

"(b) If any person fraudulently or knowingly imports or brings into the United States, or assists in so
doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates
the transportation, concealment, or sale of such merchandise after importation, knowing the same to
have been imported or brought into the United States contrary to law, such merchandise shall be
forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be
imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this
section, the defendant is shown to have or to have had possession of such goods, such possession
shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the
possession to the satisfaction of the jury.

"Sec. 594. Seizure of Vessels and Vehicles. Whenever a vessel or vehicle, or the owner or master,
conductor, driver, or other person in charge thereof, has become subject to a penalty for violation of
the customs revenue laws of the United States, such vessel or vehicle shall be held for the payment of
such penalty and may be seized and proceeded against summarily by libel to recover the same:
Provided, that no vessel or vehicle used by any person as a common carrier in the transaction of
business as such common carrier shall be so held or subject to seizure or forfeiture under the customs
laws, unless it shall appear that the owner or master of such vessel or the conductor, driver, or other
person in charge of such vehicle was at the time of the alleged illegal act a consenting party or privy
thereto."

So much of the Treaty as is necessary for consideration is as follows:

"Article I.

"The high contracting parties declare that it is their firm intention to uphold the principle that 3 marine
miles extending from the coastline outwards and measured from low-water mark constitute the proper
limits of territorial waters."

"Article II, Sections 1, 2, and 3.

"(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under
the British flag outside the limits of territorial waters by the authorities of the United States, its territories
or possessions in order that enquiries may be addressed to those on board and an examination be
made of the ship's papers for the purpose of ascertaining whether the vessel or those on board are
endeavoring to import or have imported alcoholic beverages into the United States, its territories or
possessions in violation of the laws there in force. When such enquiries and examination show a
reasonable ground for suspicion, a search of the vessel may be instituted.

"(2) If there is reasonable cause for belief *842 that the vessel has committed or is committing or
attempting to commit an offense against the laws of the United States, its territories or possessions
prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of
the United States, its territories or possessions for adjudication in accordance with such laws.

"(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of
the United States, its territories, or possessions than can be traversed in one hour by the vessel
suspected of endeavoring to commit the offense. In cases, however, in which the liquor is intended to
be conveyed to the United States, its territories or possessions by a vessel other than the one boarded
and searched, it shall be the speed of such other vessel and not the speed of the vessel boarded, which
shall determine the distance from the coast at which the right under this article can be exercised."

But before we proceed to discuss the above-quoted sections of the Tariff Act as well as the treaty, it
may be well to dispose of one of the contentions made by counsel in behalf of the cargo and the
schooner.

The proposition is advanced that, regardless of our municipal legislation, the acts complained of could
not constitute offenses against the United States when committed by foreign nationals, on foreign
bottoms, on the high seas at a point beyond the territorial jurisdiction of the country. Well-known
principles of international practice are invoked in support of this contention accompanied with the
citation of authority. Upon careful consideration, however, I am led to conclude that a misconception
exists here as to the status, in a federal forum, of so-called international law when that law encounters
a municipal enactment.

If we assume for the present that the national legislation has, by its terms, made the acts complained
of a crime against the United States even when committed on the high seas by foreign nationals upon
a ship of foreign registry, then there is no discretion vested in the federal court, once it obtains
jurisdiction, to decline enforcement. International practice is law only in so far as we adopt it, and like
all common or statute law it bends to the will of the Congress. It is not the function of courts to annul
legislation; it is their duty to interpret and by their judicial decrees to enforce it and even when an act of
Congress is declared invalid, it is only because the basic law is being enforced in that declaration.
There is one ground only upon which a federal court may refuse to enforce an act of Congress and that
is when the act is held to be unconstitutional. The act may contravene recognized principles of
international comity, but that affords no more basis for judicial disregard of it than it does for executive
disregard of it. These libels, therefore, cannot be attacked upon the ground that the territorial jurisdiction
of the United States cannot be extended beyond the three-mile sea zone under international law.

If, however, the court has no option to refuse the enforcement of legislation in contravention of principles
of international law, it does not follow that in construing the terms and provisions of a statute it may not
assume that such principles were on the national conscience and that the congressional act did not
deliberately intend to infringe them. In other words, unless it unmistakably appears that a congressional
act was intended to be in disregard of a principle of international comity, the presumption is that it was
intended to be in conformity with it. It is with such a principle in mind that we now proceed to an
examination of the legislation upon which the government relies.

Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful for the vessel to make entry of
or to unlade any part of its cargo elsewhere than at a port of entry. Part of the cargo of Over the Top
was unloaded on the high seas, and the government contends that the statute was thereby violated.
To me it seems that the statute was intended to prevent entry or unlading at a port or place in the
country other than a port of entry. It had no reference to unlading on the seas even when done within
the three-mile zone. But waiving that question, it is to be noted that the act is phrased in general
language and that it bespeaks no suggestion of territorial limitation. The proposition has not heretofore
been advanced that for that reason the act has attempted to extend the territorial jurisdiction of the
United States over the whole earth. Almost all criminal statutes, or statutes prohibiting defined conduct,
are phrased in general language without mention of territorial limitation. But they are all to be read in
the light of the principle that jurisdiction is not extraterritorial and that the municipal legislation is not
attempting to regulate or to punish conduct performed outside of the national domain. For example, the
statutes of Connecticut do not forbid larceny in Connecticut they forbid larceny. The statutes of the
United States do not forbid counterfeiting *843 in the United States they forbid counterfeiting. That the
Congress may, in disregard of the law of nations, prohibit acts by foreign nationals not committed within
our domain, has already been conceded; but unless such intent clearly appears from the language of
the statute such intent is not to be presumed.

It would seem that the libelant does not take the view that the acts complained of constituted an
infraction of our law by the very force of the language of the statute, else there would be no reason to
invoke the aid of the provisions of American-British Treaty. It is obvious that if the unlading of the whisky
19 or 20 miles out at sea constituted a violation of section 447 of the Tariff Act, then such violation was
justiciable and punishable irrespective of the provisions of the treaty. The treaty would serve to obviate
diplomatic embarrassments arising out of the seizure of a British vessel on the high seas, but it would
be useless for the purposes of determining the intent of the provisions of section 447 of the Tariff Act.

The same considerations apply with equal force to the provisions of sections 448, 450, 453, 585, 593,
and 594 of the Tariff Act of 1922. These enactments of the Congress are implicit with the proviso that
the acts therein denounced be accomplished within the territory of the United States. No attempt is
there discernible to extend the legislative jurisdiction of the United States beyond its boundaries. Of
utmost significance, therefore, is the language of section 586 of the act providing that the master of any
vessel from a foreign port, who allows any merchandise to be unladen from such vessel at any time
after its arrival within four leagues of the coast of the United States, and before such vessel has come
to the proper place for the discharge of such merchandise, and before permission has been given to
unlade, shall be liable to a penalty, and the vessel and the merchandise shall be subject to seizure and
forfeiture. It appears to me that this section has a most important, if not a determinative, bearing upon
the point under discussion. This enactment has been part of our legislation for over a hundred years.
Here we have a distinct extension of our sea jurisdiction to a point 12 miles from the coast an assertion
of authority which may perhaps clash with international practice, but which, whether challenged or not,
is unmistakable, and which, therefore, it is the business of our courts to enforce. Had the master and
super cargo of Over the Top been guilty of unlading the liquor at a point within this 12-mile zone, it may
be that we would have had no difficulty in sustaining the libels.

Indeed, the applicability of section 593 of the Tariff Act to the case at bar has already been negatively
determined in the authoritative opinion of the Supreme Court in Keck v. United States, 172 U.S. 434,
19 S. Ct. 254, 43 L. Ed. 505. The statute which was the subject of construction in that case was
substantially the same in language as section 593 now under consideration, and there it was held that
the offense denounced by the statute could not be accomplished until the customs barrier had been
passed, and therefore, even though goods intended to be smuggled were brought within the three-mile
sea zone, that, nevertheless, smuggling was not perpetrated until the goods were landed and passed
into the country.

My conclusion, then, is that as no statute embracing the subject-matter of sections 447, 448, 450, 453,
585, 586, 593, and 594 of the Tariff Act of 1922 has extended our territorial jurisdiction to a point on
the high seas distant 19 miles from our coast, conduct which would have been in violation of these
sections if performed within our territory cannot constitute an offense against the United States when
performed at such a distance by foreign nationals on ships of foreign registry. If, for the purpose of our
treasury, we can extend our sea jurisdiction to a point four leagues from the coast, I see no reason why
we cannot extend it four leagues more. I merely observe that we have not done so yet.

I now come to the provisions of the American-British Treaty, which was obviously contracted for the
purpose of preventing hovering ships from supplying intoxicating liquor to carriers running between the
ships and the shore. There can be no question as to the general intent of the treaty and as to what was
supposed to have been accomplished by its provisions. But it is one thing to apprehend the purpose of
an act and quite another to determine that the language of the act is effective. The treaty in question
provides that no objections will be raised by the British government to the boarding of vessels flying the
British flag outside the territorial waters of the United States for the purpose of investigating the cargo
in order to determine whether the vessel or those on board are endeavoring to import alcoholic
beverages into the United States in violation of our laws. The British government further *844 does not
object to the seizure of such a vessel found violating our law and to its disposition in accordance with
such laws. The treaty further provides that the zone of operations by the United States is extended to
a point one hour's running distance from our coast, wholly irrespective of the mileage coverable within
such hour, and that where the liquor is intended to be conveyed to the coast by a vessel other than the
one boarded and searched it is the speed of that vessel which is to determine the distance.

I have already found that the possible speed of the sea sled under the conditions disclosed by the
testimony was about 30 knots an hour. But the evidence showed that this speed was made in the
daylight when the boat carried no load, and when it skidded along over the top of the water with its
stern only displacing water and while running from New London to Point Judith Gas Buoy and along
the lee of the land. There is absolutely no evidence in the record as to how far the sea sled could travel
in an hour and in the dark with 25 cases of liquor and three men aboard as on the night it left the
schooner Over the Top with wind, weather, and tide as it in fact existed on the night in question.

Now the treaty provides that the right of seizure cannot be exercised at a greater distance from the
coast "than can be traversed in one hour by the vessel suspected of endeavoring to commit the
offense." As we are dealing here with fines and forfeitures, I cannot assume that this language was
intended to cover an hypothetical case; that the seizure would be treated as legal if accomplished at a
point constituting the greatest distance which the unladen ship could traverse in one hour at her
maximum speed under the most favorable conditions of wind and tide. It seems to me that a rational
construction requires us to measure the distance by the actual speed of the boat accomplished from
the point of capture to the nearest available point on the coast in normal wind and tide and under the
same conditions as pertain at the time of the seizure. Nor can I see any reason for applying any different
rule when the distance is to be measured by the speed of the carrier from ship to coast. It is the speed
of the boat conveying liquor, and when it is engaged in conveying liquor to the United States, that must
be determined. When conveying liquor, her speed may be below that of her speed when empty.

That such jurisdictional facts may be exceedingly difficult of proof, and that penalties and forfeitures are
to be determined by a standard as uncertain as the equity which once was said to vary with the size of
the chancellor's foot, may be a matter of regret; but it is the business of the courts to construe treaties
and not to make them. But it is to be noted in this particular case the sea sled, owned by the government
and operated by government officials, had full opportunity to time its run laden with its crew and 25
cases of liquor on the night in question and so present in court reliable and satisfactory evidence.
Instead, they turned and made for the Tampa, and on it unloaded 23 cases and carried only 2 cases to
New London. And no explanation was offered for such operations.

There being no evidence before me from which I can determine the speed of the sea sled when laden
with the 25 cases of liquor, and no evidence to meet the provisions of the treaty that, "In cases, however,
in which the liquor is intended to be conveyed to the United States * * * by a vessel other than the one
boarded and searched, it shall be the speed of such other vessel, * * * which shall determine the
distance from the coast at which the right under this article can be exercised" (article 2, 3), I would
feel obliged for this reason alone to decree a dismissal of the libels. But I am not unmindful of the
possibility of error in my construction of this part of the treaty and a much larger question looms in the
background.

It must be noted that the treaty does not define the acts constituting an offense against the laws of the
United States prohibiting the importation of alcoholic beverages. These acts are defined in the statute.
If reasonable grounds exist for believing that a vessel under British registry is in fact guilty of
contravening the Prohibition Law (Comp. St. Ann. Supp. 1923, 10138 et seq.), then our government
may seize it if it is within the specified area, and when seized its fate may then be determined in
accordance with our laws. If it is not within the specified area, it may not even be seized. But if it is
within the specified area, it does not follow that it is for that reason violating our laws.

Now the grant by one sovereign to another of the right to seize its nationals upon the high seas without
process and by force majeure for crimes committed by those nationals against the offended sovereign,
by no means declares that those acts when committed on the high seas constitute such crimes. If,
before this treaty was contracted, the unlading of merchandise by a ship of British *845 registry at a
point more than four leagues removed from the coast of the United States did not constitute a crime
against the United States (and there appears to be no contention that it did), then the treaty could not
and did not make it a crime.
In support of its contention, the government cites and relies upon United States v. The Pictonian, 3 F.
(2d) 145, recently decided in the Eastern district of New York, where it was held that the American-
British Treaty did, as to ships of British registry, extend the operation of the criminal laws of the United
States to the shifting line designated in the treaty. I have carefully read Judge Campbell's opinion and
find myself unable to agree with its reasoning. The learned judge speaks of the treaty as self-executing.
The significance of the phrase in this connection is somewhat obscure. As a treaty, there was no need
of congressional legislation to make it effective, and in this sense all treaties are self-executing. But if
it was the intent of the government to make it a crime for a ship of British registry to unlade liquor within
a sea zone on our coast, traversible in one hour, then that intent was not effectuated by the mere
execution of the treaty. It is not the function of treaties to enact the fiscal or criminal law of a nation. For
this purpose no treaty is self-executing. Congress may be under a duty to enact that which has been
agreed upon by treaty, but duty and its performance are two separate and distinct things. Nor is there
any doubt that the treaty making power has its limitations. What these are has never been defined,
perhaps never need be defined. Certain it is that no part of the criminal law of this country has ever
been enacted by treaty.

Illustrations of congressional effectuation of treaties are plentiful. All treaties requiring payments of
money have been followed by acts of Congress appropriating the amount. The treaties were the
supreme law of the land, but they were ineffective to draw a dollar from the treasury. The Russian-
American Treaty of 1824 (8 Stat. 302) against selling liquors to the Alaskan natives was followed by
the necessary penal legislation by the Congress. The treaty with various powers made in 1847 defining
piracy and declaring its punishment, received similar reinforcing enactments. The same was true of the
Treaty of 1862 with Great Britain (12 Stat. 1225), suppressing the slave trade; of the Treaty of 1884 (24
Stat. 989), with various powers imposing fines and penalties for the protection of submarine cables;
and of the Treaty of 1912 (37 Stat. 1542), for the protection of seals in the North Pacific Ocean.

The instances just cited indicate the practice of congressional action in order to effectuate the penal
provisions of a treaty, and I have no doubt that such practice is necessary in order to accomplish the
purposes of the treaties. It happens that the American-British Treaty here under consideration does not
declare it a crime for a British national on a ship of British registry to sell liquor for purposes of
importation into this country within one hour's running distance of our shore. Nor does the treaty forbid
such an act. But even if such conduct had been prohibited by the terms of the treaty, no indictment
could lie for transgressing that prohibition. If an indictment could not lie for violating the direct command
of the Eighteenth Amendment to the Constitution until the Congress had defined the offense and
proclaimed the penalty, then the fiat of a treaty would be inadequate for such a purpose. No distinction
exists here between the necessary basis of an indictment and that of a libel for forfeiture. If the facts do
not warrant an indictment, they do not warrant a penalty.

In this connection it may be well to emphasize the general nature of the provisions of the Tariff Act
relied upon by the libelant. In the instance at bar, we happen to be dealing with liquor, but the legislation
which is invoked is by no means concerned exclusively with this commodity. A British or French ship
unlading coffee or coal within the 12-mile limit, and before entry and permission to unlade, would be
just as guilty of violating these acts as if she were unlading liquor. Neither her nationality nor the nature
of her cargo would have any bearing on the issues.

Whether therefore the Senate and the Executive may constitutionally enact criminal legislation by the
device of a mere treaty is a question which fortunately we need not discuss. It is sufficient to conclude
that the American-British Treaty did not in fact enact new criminal legislation.

There are other considerations which should be noted. It is conceded that a sale was made; that the
supercargo sold the cases of liquor to the government agent aboard the government sea sled and
received $550. This transaction was on the high seas and 7 miles beyond the 12-mile limit and at a
place where the transaction was valid. Title therefore passed. Can it be claimed that there was a
violation either by schooner or cargo (for these libels are against them) of any *846 law of the United
States? After the sale, title to the goods vested in the government men. Under section 593 is it claimed
they smuggled the goods into this country? If they did not, there was no violation of United States law
certainly none by cargo or schooner or even by the men aboard who made the sale, as they all lost title
when the goods were bought and paid for, and, of course, no one claims the government men smuggled
the liquor. The whole situation seems a perfect paradox. The respondents plead entrapment as a
defense, and urge it strenuously in the brief. In view of the conclusions above reached, it is not
necessary to discuss at length this question. It is sufficient to say that there is much merit in the defense
when considered in connection with the above proposition that when the title to the goods passed and
became vested in the purchasers, the respondents could not smuggle what they sold, and which they
would not have sold had they not been importuned by the men on the sea sled.

The considerations as above expressed therefore impel the conclusion that there is no legal basis for
these libels, and it follows that they must be and the same are dismissed. Submit findings and decree.

Triquet and Peach and Another, versus Bath.

IN THE COURT OF KING'S BENCH

Original Citation: (1764) 3 Burr 1478

English Reports Citation: 97 E.R. 936

Saturday, 2d May, 1764.

S. C. 1 Black. 471.
Referred to, The Charkich, 1873, L. R. 4 Ad. & E. 89; R. v. Keyn, 1876, 2 Ex. D. 130; West Rand Central
Gold-Mining Company v. R. [1905], 2 K. B. 407.

[1478] Triquet and others, verus Bath. Peach and another, versus Bath. uut*., Saturday, 2d May,
1764. [S. C. 1 Black. 471.] English secretary to a foreign minister protected from arrest. [3 Durn.
80.]

Mr. Blackstone, Mr. Thurlow, and Mr. Dunning, on behalf of the plaintiffs, shewed cause why the
bill of Middlesex in each of these causes should not be set aside, and the bail-bond be cancelled.
The rule was made upon affidavits "of the defendant's being a domestic servant of a foreign
minister; arid having taken all the proper steps to intitle him to the privilege of such domestics."
The only question was, " whether the defendant (Christopher Bath) was really and truly and bona
fide a domestic servant of Count Haslang, the Bavarian minister :" or, " whether his service was only
colourable, and a mere sham and pretence calculated to protect him from the just demands of his
creditors."
On the part of the defendant, it was sworn, " that he was regularly appointed by Count Haslang, to
be one of his English secretaries, at 301. per arm. for board and lodging, &c." And he swore to actual
attendance and actual service, at several times, at the count's house ; and writing, copying and carrying
several letters and memorials : in short, the defendant's affidavits were so framed, that every thing was
sworn that ia absolute strictness could be required, to bring him within the description of a domestic
servant to this minister.
On the part of the plaintiffs, it appeared, that Bath was a mercer in Dublin, about seven or eight
years ago; that he had afterwards been a commissary of stores abroad, and was now upon half-pay as
such, at 15s. per day : that he speaks only English : that he had never eat nor lodged in the count's
house, nor received any wages : (but as to the wages, it appeared that there were not yet so much as
half a year's wages become due). It was also sworn, very generally " that whilst he carried on trade in
Ireland, he bought goods in England, and sold them in Ireland."
Mr. Blackstone observed that the Act of Parliament of 7 Ann. c. 12, was not any alteration of the
law from what [1479] it was before; for that ambassadors and their attendants were, by the general law
of nations, intitled to the same privilege.
The 4th clause (which gives the summary proceeding against the infractors of it,) was added, he
said, by the Lords, as an amendment; and afterwards agreed to by the Commons.
In the like manner, summary remedy was given against the violators of the law
3BUKR. 1480. TRIQUET V. BATH 937
of nations with regard to safe conduct, by an old Act of 31 H, 6, c. 4, which gave the summary
power to the Chancellor, calling to him any one Judge of either Bench.
 And he mentioned Grotius, de Jure Belli et Pacis; and Binkerahoek, cle Foro Legatorum, c. 15, de
Comitibua Legatorum: from both which writers he inferred, that the exclusion of traders from this
privilege was agreeable to the law of nations; and that the hanging up the riomenclatura comitum was
also taken from that law.
He likewise cited several cases in this Court, to shew that the nature of the service must be
specified, and that no one could have a right to claim this privilege, who was not expressly and
circumstantially shewn to be fairly, really and bona fide a domestic servant in the actual service of the
foreign minister, and actually performing the service to him, without collusion; and who is not a trader
of any sort, or liable to be described as such.
Under the former head, he cited
Widmm-e v. Alvarez, H. 4 G. 2, B. R. Sir J. S. 797, and Fitz-Gib. 200, S. C. Poitier v. Croza, Tr. 23
G. 2, B. R. Martin v. Gurdon. (It was Holmes v. Gurdon, M. 7 G. 2, B. R.) and Britwell v. Carolina. (It
was Brettel v. Carolina, Tr. 17, 18 G. 2, B. R. where both points now in question were fully discussed
and settled.) He also cited a case of a gardener to a foreign minister who had no garden; and likewise
the case of the Reverend Mr. Shorthose, who claimed the privilege as chaplain to the Morocco
Ambassador, a Mahometan; and also a case of Johnston v. Stewart, M. 1750, 24 G. 2, B. R. S. P. with
the case of Poitier v. Croea.
Which cases prove that the nature of the service must be particularly shewn.
Under the latter head, he cited
Dodsworth v. Anderson, Sir T. Raym. 375, and Sir T. Jones, 141, where Grice, who bought goods
in England and sold them in Ireland, was holden to be a bankrupt in England.
[1480] Which case he would have applied to a fact here sworn on the part of the plaintiffs, viz. "
that whilst the defendant was a trader in Ireland, he had bought silk in England, and sold it in Ireland."
(But it was not shewn by the plaintiffs, when (in particular) they were bought and sold; or that the goods
bought here and sold there, were the same goods : and the defendant swore, in his affidavit, " that he
had not traded since the year 1756.")
Lord Mansfield-This privilege of foreign ministers and their domestic servants depends upon the
law of nations. The Act of Parliament of 7 Ann. c. 12, is declaratory of it. All that is new in this Act, is
the clause * which gives a summary jurisdiction for the punishment of the infractors of this law.
The Act of Parliament was made upon occasion of the Czar's Ambassador being arrested. If proper
application had been immediately made for his discharge from the arrest, the matter might and
doubtless would have been set right. Instead of that, bail was put in, before any complaint was made.
An information was filed by the then Attorney General against the persons who were thus concerned,
as infractors of the law of nations : and they were found guilty; but never brought up to judgment.
The Czar took the matter up, highly. No punishment would have been thought, by him, an adequate
reparation. Such a sentence as the Court could have given, he might have thought a fresh insult.
Another expedient was fallen upon and agreed to : this Act of Parliament passed, as an apology
and humiliation from the whole nation. It was sent to the Czar, finely illuminated by an ambassador
extraordinary, who made excuses in a solemn oration.
A great deal relative to this transaction and negotiation, appears in the annals of that time; and from
a correspondence of the Secretary of State there printed.
But the Act was not occasioned by any doubt " whether the law of nations, particularly the part
relative to public ministers, was not part of the law of England; and the infraction, criminal; nor
intended to vary, an iota from it."
I remember in a case before Lord Talbot, of Envoi v. Barbut,^ upon a motion to discharge the
defendant, (who was in execution for not performing a decree,) " because he was agent of commerce,
commissioned by the King [1481] of Prussia, and received here as such;" the matter was very
elaborately argued at the Bar; and a solemn

* S. 4.
T. post, p. 2015, Heathjidd v. Chilian, 5th Feb. 1767.
t In Cane. 16th July, 1736. [4 Burr. 2016.]
K. B. xxvi.-30*
938 CRACEAFT V. GLEDOWE 3 BURR. 1482.
deliberate opinion given by the Court. These questions arose and were discussed. -" Whether a minister
could, by any Act or Acts, wave his privilege."-" Whether being a trader was any objection against
allowing privilege to a minister, personally." -."Whether an agent of commerce, or even a consul, was
intitled to the privileges of a public minister."-" What was the rule of decision : the Act of Parliament; or,
the law of nations." Lord Talbot declared a clear opinion-" That the law of nations, in its full extent was
part of the law of England."-" That the Act of Parliament was declaratory ; and occasioned by a particular
incident."-" That the law of nations was to be collected from the practice of different nations, and the
authority of writers." Accordingly, he argued and determined from such instances, and the authority of
Grotius, Barbeyrac, Biukershoek, Wiquefort, &c. there being no English writer of eminence, upon the
subjeet.(1/2)
I was counsel in this case; and have a full note of it.
I remember, too, Lord Hardwicke's declaring his opinion to the same effect; and denying that Lord
Chief Justice Holt ever had any doubt as to the law of nations being part of the law of England, upon
the occasion of the arrest of the Kussian Ambassador.
Mr. Blackstone's principles are right: but as to the facts in the present case, the affidavits on the
part of the defendant have out-sworn those on the part of the plaintiffs. (And his Lordship, as well as
Mr. Justice Wilmot took notice, that the person who drew the affidavits on the part of the defendant,
had very exactly pursued the course of the cases that had been determined upon questions of this kind
; and had taken care to meet and answer all objections that might arise from them.) Lord Mansfield
observed also, that the defendant was employed in the service of Monsieur Hasling, before the plaintiff
took out his writ.
It was not to be expected, he said, that every particular act of the service should be particukrly
specified : it is enough, if an actual bona fide service be proved. And if such a service be sufficiently
proved by affidavit, we must not, upon bare suspicion only, suppose it to have been merely colourable
and collusive.
[1482] As to the latter point, " of his being a trader"-his having been so in Ireland, (and even that
seven years ago,) will not bring him within the exception of the 5th clause of this Act, which provides "
that no merchant or other trader whatsoever within the description of any of the statutes against
bankrupts, who hath or shall put himself into the service of any such ambassador or public minister,
shall have or take any manner of benefit by that Act."
And there is no colour for bringing this case within that of Dodnworlh v. Anderson : * for here is no
connexion between the goods bought in England, and those sold in Ireland. It does not appear that
they were the same goods; neither is any time specified, when they were bought, or when they were
sold.
Per Cur'.-Both rules were made absolute ; but without costs, by reason of the suspicious
circumstances of this case.

LAO H. ICHONG v JAIME HERNANDEZ,

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative
enactment, fundamental and far-reaching in significance. The enactment poses questions of due
process, police power and equal protection of the laws. It also poses an important issue of fact, that is
whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly
springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen
and country from the alien retailer. Through it, and within the field of economy it regulates, Congress
attempts to translate national aspirations for economic independence and national security, rooted in
the drive and urge for national survival and welfare, into a concrete and tangible measures designed to
free the national retailer from the competing dominance of the alien, so that the country and the nation
may be free from a supposed economic dependence and bondage. Do the facts and circumstances
justify the enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the
retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens
of the Philippines, and against associations, partnerships, or corporations the capital of which are not
wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2)
an exception from the above prohibition in favor of aliens actually engaged in said business on May 15,
1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance
with the law, until their death or voluntary retirement in case of natural persons, and for ten years after
the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception
therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture
of licenses (to engage in the retail business) for violation of the laws on nationalization, control weights
and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition
against the establishment or opening by aliens actually engaged in the retail business of additional
stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail
business to present for registration with the proper authorities a verified statement concerning their
businesses, giving, among other matters, the nature of the business, their assets and liabilities and
their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now
engaged in the retail business who die, to continue such business for a period of six months for
purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner
attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal
protection of the laws and deprives of their liberty and property without due process of law ; (2) the
subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international
and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the
transmission by aliens of their retail business thru hereditary succession, and those requiring 100%
Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the
spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed
in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in
the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no
treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is
affected but the value of the property is not impaired, and the institution of inheritance is only of statutory
origin.

IV. Preliminary consideration of legal principles involved

a. The police power.

There is no question that the Act was approved in the exercise of the police power, but petitioner claims
that its exercise in this instance is attended by a violation of the constitutional requirements of due
process and equal protection of the laws. But before proceeding to the consideration and resolution of
the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit
preliminary, considerations in the determination of the ever recurrent conflict between police power and
the guarantees of due process and equal protection of the laws. What is the scope of police power, and
how are the due process and equal protection clauses related to it? What is the province and power of
the legislature, and what is the function and duty of the courts? These consideration must be clearly
and correctly understood that their application to the facts of the case may be brought forth with clarity
and the issue accordingly resolved.

It has been said the police power is so far - reaching in scope, that it has become almost impossible to
limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to
be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and
as such it is the most positive and active of all governmental processes, the most essential, insistent
and illimitable. Especially is it so under a modern democratic framework where the demands of society
and of nations have multiplied to almost unimaginable proportions; the field and scope of police power
has become almost boundless, just as the fields of public interest and public welfare have become
almost all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee
the needs and demands of public interest and welfare in this constantly changing and progressive
world, so we cannot delimit beforehand the extent or scope of police power by which and through which
the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the
scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The
most important of these are the due process clause and the equal protection clause.
b. Limitations on police power.

The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)

c. The, equal protection clause.

The equal protection of the law clause is against undue favor and individual or class privilege, as well
as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which
is limited either in the object to which it is directed or by territory within which is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.
The equal protection clause is not infringed by legislation which applies only to those persons falling
within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists
for making a distinction between those who fall within such class and those who do not. (2 Cooley,
Constitutional Limitations, 824-825.)

d. The due process clause.

The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably
necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there
not been a capricious use of the legislative power? Can the aims conceived be achieved by the means
used, or is it not merely an unjustified interference with private interest? These are the questions that
we ask when the due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal protection
of the laws is more apparent than real. Properly related, the power and the guarantees are supposed
to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment
of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise
it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and
anarchy. So the State can deprive persons of life, liberty and property, provided there is due process
of law; and persons may be classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The police power legislation must be
firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes
and means. And if distinction and classification has been made, there must be a reasonable basis for
said distinction.

e. Legislative discretion not subject to judicial review.

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not
be overlooked, in the first place, that the legislature, which is the constitutional repository of police
power and exercises the prerogative of determining the policy of the State, is by force of circumstances
primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in
the exercise of the police power, or of the measures adopted to implement the public policy or to achieve
public interest. On the other hand, courts, although zealous guardians of individual liberty and right,
have nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They
have done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse
of the legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and
courts never inquire into the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved. If
the disputed legislation were merely a regulation, as its title indicates, there would be no question that
it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its subject
is a common, trade or occupation, as old as society itself, which from the immemorial has always been
open to residents, irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation.

In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an infinite number of things they
do not produce, the dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under modern conditions and
standards of living, in which man's needs have multiplied and diversified to unlimited extents and
proportions, the retailer comes as essential as the producer, because thru him the infinite variety of
articles, goods and needed for daily life are placed within the easy reach of consumers. Retail dealers
perform the functions of capillaries in the human body, thru which all the needed food and supplies are
ministered to members of the communities comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and
things needed for home and daily life. He provides his customers around his store with the rice or corn,
the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the
needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the
lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a
supermarket is so much a part of day-to-day existence.

b. The alien retailer's trait.

The alien retailer must have started plying his trades in this country in the bigger centers of population
(Time there was when he was unknown in provincial towns and villages). Slowly but gradually be
invaded towns and villages; now he predominates in the cities and big centers of population. He even
pioneers, in far away nooks where the beginnings of community life appear, ministering to the daily
needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable
fact that in many communities the alien has replaced the native retailer. He has shown in this trade,
industry without limit, and the patience and forbearance of a slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.

c. Alleged alien control and dominance.

There is a general feeling on the part of the public, which appears to be true to fact, about the controlling
and dominant position that the alien retailer holds in the nation's economy. Food and other essentials,
clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers
of population he has acquired not only predominance, but apparent control over distribution of almost
all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores
of other goods and articles. And were it not for some national corporations like the Naric, the Namarco,
the Facomas and the Acefa, his control over principal foods and products would easily become full and
complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said
that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the
result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of
control; also so many unmanageable factors in the retail business make control virtually impossible.
The first argument which brings up an issue of fact merits serious consideration. The others are matters
of opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon
and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and white.
Between the constitutional convention year (1935), when the fear of alien domination and control of the
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the
enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out
to the ever-increasing dominance and control by the alien of the retail trade, as witness the following
tables:

Assets Gross Sales

Year and
No.- Per cent Per cent
Retailers Pesos Pesos
Establishments Distribution Distribution
Nationality
1941:
Filipino 106,671 200,323,138 55.82 174,181,924 51.74
..........
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
...........
Others 1,646 40,187,090 11.20 13,630,239 4.05
............
1947:
Filipino 111,107 208,658,946 65.05 279,583,333 57.03
..........
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
...........
Others 354 8,761,260 .49 4,927,168 1.01
...........
1948: (Census)
Filipino 113,631 213,342,264 67.30 467,161,667 60.51
..........
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
..........
Others 422 10,514,675 3.32 9,995,402 1.29
..........
1949:
Filipino 113,659 213,451,602 60.89 462,532,901 53.47
..........
Chinese 16,248 125,223,336 35.72 392,414,875 45.36
..........
Others 486 12,056,365 3.39 10,078,364 1.17
..........
1951:
Filipino 119,352 224,053,620 61.09 466,058,052 53.07
.........
Chinese 17,429 134,325,303 36.60 404,481,384 46.06
..........
Others 347 8,614,025 2.31 7,645,327 87
..........

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
 Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)

1941:

Filipino 1,878 1,633

.............................................

Chinese 7,707 9,691

..............................................

Others 24,415 8,281

...............................................

1947:

Filipino 1,878 2,516

.............................................

Chinese 7,707 14,934

...........................................

Others 24,749 13,919

..............................................

1948: (Census)

Filipino 1,878 4,111

.............................................

Chinese 7,707 24,398

.............................................

Others 24,916 23,686

..............................................

1949:

Filipino 1,878 4,069

.............................................

Chinese 7,707 24,152

..............................................

Others 24,807 20,737

..............................................

1951:

Filipino 1,877 3,905

.............................................

Chinese 7,707 33,207

.............................................

Others 24,824 22,033

...............................................

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners,
Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of
Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation
has steadily increased during the years. It is true, of course, that Filipinos have the edge in the number
of retailers, but aliens more than make up for the numerical gap through their assests and gross sales
which average between six and seven times those of the very many Filipino retailers. Numbers in
retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times
more, and gains much more. The same official report, pointing out to the known predominance of
foreign elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor
retailer enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino
retailer is practically helpless in matters of capital, credit, price and supply.

d. Alien control and threat, subject of apprehension in Constitutional convention.

It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control when
they approved a resolution categorically declaring among other things, that "it is the sense of the
Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The
Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two
years ago; and the events since then have not been either pleasant or comforting. Dean Sinco of the
University of the Philippines College of Law, commenting on the patrimony clause of the Preamble
opines that the fathers of our Constitution were merely translating the general preoccupation of Filipinos
"of the dangers from alien interests that had already brought under their control the commercial and
other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the
concern of the members of the constitutional convention for the economic life of the citizens, in
connection with the nationalistic provisions of the Constitution, he says:

But there has been a general feeling that alien dominance over the economic life of the country
is not desirable and that if such a situation should remain, political independence alone is no
guarantee to national stability and strength. Filipino private capital is not big enough to wrest
from alien hands the control of the national economy. Moreover, it is but of recent formation and
hence, largely inexperienced, timid and hesitant. Under such conditions, the government as the
instrumentality of the national will, has to step in and assume the initiative, if not the leadership,
in the struggle for the economic freedom of the nation in somewhat the same way that it did in
the crusade for political freedom. Thus . . . it (the Constitution) envisages an organized
movement for the protection of the nation not only against the possibilities of armed invasion but
also against its economic subjugation by alien interests in the economic field. (Phil. Political Law
by Sinco, 10th ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they
express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July
18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved
on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in
the street also believes, and fears, alien predominance and control; so our newspapers, which have
editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination
and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that
compose the Filipino community.

e. Dangers of alien control and dominance in retail.

But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the fixing
of prices, the determination of the amount of goods or articles to be made available in the market, and
even the choice of the goods or articles they would or would not patronize or distribute, that fears of
dislocation of the national economy and of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed
completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be
prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or
because a new competing article offers bigger profits for its introduction. All that aliens would do is to
agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a
substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article
suddenly out of the prescribed article, or its consumers, find the article suddenly out of circulation.
Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within
judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and
justice, that there exists a general feeling on the part of the public that alien participation in the retail
trade has been attended by a pernicious and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have cornered the market of essential
commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice
of the consuming public, so much so that the Government has had to establish the National Rice and
Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they
have violated price control laws, especially on foods and essential commodities, such that the
legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and
automatic deportation for price control convictions; that they have secret combinations among
themselves to control prices, cheating the operation of the law of supply and demand; that they have
connived to boycott honest merchants and traders who would not cater or yield to their demands, in
unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded
tax laws, smuggled goods and money into and out of the land, violated import and export prohibitions,
control laws and the like, in derision and contempt of lawful authority. It is also believed that they have
engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft
and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made
both by the Government and by their own lawful diplomatic representatives, action which impliedly
admits a prevailing feeling about the existence of many of the above practices.

The circumstances above set forth create well founded fears that worse things may come in the future.
The present dominance of the alien retailer, especially in the big centers of population, therefore,
becomes a potential source of danger on occasions of war or other calamity. We do not have here in
this country isolated groups of harmless aliens retailing goods among nationals; what we have are well
organized and powerful groups that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no allegiance or loyalty to the State, and the
State cannot rely upon them in times of crisis or emergency. While the national holds his life, his person
and his property subject to the needs of his country, the alien may even become the potential enemy
of the State.

f. Law enacted in interest of national economic survival and security.

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is
not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire
and determination of the people, thru their authorized representatives, to free the nation from the
economic situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage.
The law is clearly in the interest of the public, nay of the national security itself, and indisputably falls
within the scope of police power, thru which and by which the State insures its existence and security
and the supreme welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. The next question that now poses solution is, Does
the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the
root and cause of the distinction between the alien and the national as a trader. The alien resident owes
allegiance to the country of his birth or his adopted country; his stay here is for personal convenience;
he is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate
nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he
temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his
Filipino customers as would prevent him from taking advantage of their weakness and exploiting them.
The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved
kin and countrymen. The experience of the country is that the alien retailer has shown such utter
disregard for his customers and the people on whom he makes his profit, that it has been found
necessary to adopt the legislation, radical as it may seem.

Another objection to the alien retailer in this country is that he never really makes a genuine contribution
to national income and wealth. He undoubtedly contributes to general distribution, but the gains and
profits he makes are not invested in industries that would help the country's economy and increase
national wealth. The alien's interest in this country being merely transient and temporary, it would
indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the nationals,
show the existence of real and actual, positive and fundamental differences between an alien and a
national which fully justify the legislative classification adopted in the retail trade measure. These
differences are certainly a valid reason for the State to prefer the national over the alien in the retail
trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a
legitimate distinction can be found between one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction.

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual
and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is
the prerogative of the law-making power. Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification
is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within
its legitimate prerogative and it can not declare that the act transcends the limit of equal protection
established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among persons
is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a
wide scope of discretion, and a law can be violative of the constitutional limitation only when the
classification is without reasonable basis. In addition to the authorities we have earlier cited, we can
also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and
succinctly defined the application of equal protection clause to a law sought to be voided as contrary
thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state
the power to classify in the adoption of police laws, but admits of the exercise of the wide scope
of discretion in that regard, and avoids what is done only when it is without any reasonable basis,
and therefore is purely arbitrary. 2. A classification having some reasonable basis does not
offend against that clause merely because it is not made with mathematical nicety, or because
in practice it results in some inequality. 3. When the classification in such a law is called in
question, if any state of facts reasonably can be conceived that would sustain it, the existence
of that state of facts at the time the law was enacted must be assumed. 4. One who assails the
classification in such a law must carry the burden of showing that it does not rest upon any
reasonable basis but is essentially arbitrary."

c. Authorities recognizing citizenship as basis for classification.

The question as to whether or not citizenship is a legal and valid ground for classification has already
been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the
case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine
Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in
coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus
denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection
clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We
held that this was a valid exercise of the police power, and all presumptions are in favor of its
constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in
coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with
approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as
follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly
of that character, and forms part of an extensive system, the object of which is to encourage
American shipping, and place them on an equal footing with the shipping of other nations. Almost
every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a
countervailing privilege in favor of American shipping is contemplated, in the whole legislation of
the United States on this subject. It is not to give the vessel an American character, that the
license is granted; that effect has been correctly attributed to the act of her enrollment. But it is
to confer on her American privileges, as contra distinguished from foreign; and to preserve the
Government from fraud by foreigners; in surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole
system is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That would
be requiring a higher degree of protection for aliens as a class than for similar classes than for
similar classes of American citizens. Broadly speaking, the difference in status between citizens
and aliens constitutes a basis for reasonable classification in the exercise of police power. (2
Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers
and peddlers, which provided that no one can obtain a license unless he is, or has declared his
intention, to become a citizen of the United States, was held valid, for the following reason: It may seem
wise to the legislature to limit the business of those who are supposed to have regard for the welfare,
good order and happiness of the community, and the court cannot question this judgment and
conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain
persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of
race hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that
an alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to
appreciate the relation of this particular business to our entire social fabric", and was not, therefore,
invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme
Court had under consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses
(pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is
prohibited, but it does not follow that alien race and allegiance may not bear in some instances such a
relation to a legitimate object of legislation as to be made the basis of permitted classification, and that
it could not state that the legislation is clearly wrong; and that latitude must be allowed for the legislative
appraisement of local conditions and for the legislative choice of methods for controlling an
apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one
at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking
was considered as having tendencies injuring public interest, and limiting it to citizens is within the
scope of police power. A similar statute denying aliens the right to engage in auctioneering was also
sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle,
297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests,
knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for
the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional
rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law
prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was the
court's findings that the exercise of the business by the aliens does not in any way affect the morals,
the health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission,
92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing licenses to
person ineligible to citizenship was held void, because the law conflicts with Federal power over
immigration, and because there is no public interest in the mere claim of ownership of the waters and
the fish in them, so there was no adequate justification for the discrimination. It further added that the
law was the outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices
dissented on the theory that fishing rights have been treated traditionally as natural resources. In Fraser
vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on
every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void
because the court found that there was no reason for the classification and the tax was an arbitrary
deduction from the daily wage of an employee.

d. Authorities contra explained.

It is true that some decisions of the Federal court and of the State courts in the United States hold that
the distinction between aliens and citizens is not a valid ground for classification. But in this decision
the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the
result or product of racial antagonism and hostility, and there was no question of public interest involved
or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court
declared invalid a Philippine law making unlawful the keeping of books of account in any language
other than English, Spanish or any other local dialect, but the main reasons for the decisions are: (1)
that if Chinese were driven out of business there would be no other system of distribution, and (2) that
the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to be
advised of their business and to direct its conduct. The real reason for the decision, therefore, is the
court's belief that no public benefit would be derived from the operations of the law and on the other
hand it would deprive Chinese of something indispensable for carrying on their business. In Yick Wo
vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to withhold consent in the
operation of laundries both as to persons and place, was declared invalid, but the court said that the
power granted was arbitrary, that there was no reason for the discrimination which attended the
administration and implementation of the law, and that the motive thereof was mere racial hostility.
In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and
peddlers was declared void, because the discrimination bore no reasonable and just relation to the act
in respect to which the classification was proposed.

The case at bar is radically different, and the facts make them so. As we already have said, aliens do
not naturally possess the sympathetic consideration and regard for the customers with whom they come
in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it
enhances their profit, nor the loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on many occasions and instances,
especially in times of crisis and emergency. We can do no better than borrow the language of Anton
vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between
the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise
known that certain classes of aliens are of different psychology from our fellow countrymen.
Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is
first to their own country, and whose ideals of governmental environment and control have been
engendered and formed under entirely different regimes and political systems, have not the
same inspiration for the public weal, nor are they as well disposed toward the United States, as
those who by citizenship, are a part of the government itself. Further enlargement, is
unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence
that the Legislature was without plausible reason for making the classification, and therefore
appropriate discriminations against aliens as it relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive.

We now come to due process as a limitation on the exercise of the police power. It has been stated by
the highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law shall
not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other constitutional
restriction a state is free to adopt whatever economic policy may reasonably be deemed to
promote public welfare, and to enforce that policy by legislation adapted to its purpose. The
courts are without authority either to declare such policy, or, when it is declared by the legislature,
to override it. If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio. . . . (Nebbia vs.
New York, 78 L. ed. 940, 950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the scope
of the police power in a constitutional sense, for the test used to determine the constitutionality
of the means employed by the legislature is to inquire whether the restriction it imposes on rights
secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any
restrictions on such rights. . . .

xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the persons
whom it affects, must not be for the annoyance of a particular class, and must not be unduly
oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular class,
require such interference; and second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the police power
to regulate the operation of a business, is or is not constitutional, one of the first questions to be
considered by the court is whether the power as exercised has a sufficient foundation in reason
in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that
power, without substantial relation to the health, safety, morals, comfort, and general welfare of
the public.

b. Petitioner's argument considered.

Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long
ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and
honest occupation and therefore beyond the power of the legislature to prohibit and penalized. This
arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this
country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien
in an honest creditable and unimpeachable manner, without harm or injury to the citizens and without
ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we
have also found and indicated, that the privilege has been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the
occupation and threatens a deadly stranglehold on the nation's economy endangering the national
security in times of crisis and emergency.

The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner
in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The
law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to
free national economy from alien control and dominance. It is not necessarily unreasonable because it
affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law
is the appropriateness or adequacy under all circumstances of the means adopted to carry out its
purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but
actually necessary, must be considered not to have infringed the constitutional limitation of
reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the bill,
which later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not
citizens of the Philippines from having a strangle hold upon our economic life. If the persons who
control this vital artery of our economic life are the ones who owe no allegiance to this Republic,
who have no profound devotion to our free institutions, and who have no permanent stake in our
people's welfare, we are not really the masters of our destiny. All aspects of our life, even our
national security, will be at the mercy of other people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are
not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from
the hands of persons who are not citizens of the Philippines a power that can be wielded to
paralyze all aspects of our national life and endanger our national security it respects existing
rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is none

the less legitimate. Freedom and liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their own race or country. The removal
and eradication of the shackles of foreign economic control and domination, is one of the noblest
motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks
to bring it about can infringe the constitutional limitation of due process. The attainment of a legitimate
aspiration of a people can never be beyond the limits of legislative authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.

The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination,
thru the exercise of the police power. The fathers of the Constitution must have given to the legislature
full authority and power to enact legislation that would promote the supreme happiness of the people,
their freedom and liberty. On the precise issue now before us, they expressly made their voice clear;
they adopted a resolution expressing their belief that the legislation in question is within the scope of
the legislative power. Thus they declared the their Resolution:

That it is the sense of the Convention that the public interest requires the nationalization of retail
trade; but it abstain from approving the amendment introduced by the Delegate for Manila, Mr.
Araneta, and others on this matter because it is convinced that the National Assembly is
authorized to promulgate a law which limits to Filipino and American citizens the privilege to
engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on
pages 66 and 67 of the Memorandum for the Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution.
Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as
corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization
of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or
any other form of authorization for the operation of the public utility shall be granted except to citizens
of the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic
protective policy laid down as a primary objective of the Constitution. Can it be said that a law imbued
with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable,
invalid and unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval
of the radical measures is, therefore, fully justified. It would have been recreant to its duties towards
the country and its people would it view the sorry plight of the nationals with the complacency and
refuse or neglect to adopt a remedy commensurate with the demands of public interest and national
survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to
face the problem and meet, through adequate measures, the danger and threat that alien domination
of retail trade poses to national economy.

d. Provisions of law not unreasonable.

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to
those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention
was called to the fact that the privilege should not have been denied to children and heirs of aliens now
engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Beside,
the exercise of legislative discretion is not subject to judicial review. It is well settled that the Court will
not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and
every presumption is in favor of its validity, and though the Court may hold views inconsistent with the
wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power.
Furthermore, the test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These
principles also answer various other arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would be thrown out of employment; that
prices will increase because of the elimination of competition; that there is no need for the legislation;
that adequate replacement is problematical; that there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are directed against the supposed
wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be
violated in Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland,
Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the
bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily
and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or
nationalization. Both of these have always been included within the term regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit
the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of
Answer.)
 Within the meaning of the Constitution requiring that the subject of every act of the Legislature
shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently
expresses the subject of an act prohibiting the sale of such liquors to minors and to persons in
the habit of getting intoxicated; such matters being properly included within the subject of
regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word regulate
does not ordinarily convey meaning of prohibit, there is no absolute reason why it should not
have such meaning when used in delegating police power in connection with a thing the best or
only efficacious regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182
La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803,
p. 345.) The above rule was followed the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the
regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition";
so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many
provisions not falling within the scope of the title which would have made the Act invalid. The use of the
term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which
a simple or general term should be adopted in the title, which would include all other provisions found
in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or of
the public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature
of the law, especially the nationalization and the prohibition provisions. The legislators took active
interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the
law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must therefore, be overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations
General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations
regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951
ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That
such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred
the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit
foreigners from engaging in retail trade, and in most nations of the world laws against foreigners
engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947
is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But
the nationals of China are not discriminating against because nationals of all other countries, except
those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty
is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of the police power of the State (plaston
vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own personality
and insures its security and future; that the law does not violate the equal protection clause of the
Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise
of the occupation regulated, nor the due process of law clause, because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the occupation and reasonably
protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us
to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and
that in any case such matter falls within the prerogative of the Legislature, with whose power and
discretion the Judicial department of the Government may not interfere; that the provisions of the law
are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or
the segment of the population affected; and that it cannot be said to be void for supposed conflict with
treaty obligations because no treaty has actually been entered into on the subject and the police power
may not be curtailed or surrendered by any treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made
less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the
law for the liquidation of existing businesses when the time comes for them to close. Our legal duty,
however, is merely to determine if the law falls within the scope of legislative authority and does not
transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies
against the harshness of the law should be addressed to the Legislature; they are beyond our power
and jurisdiction.

The petition is hereby denied, with costs against petitioner.Paras, C.J., Bengzon, Reyes, A., Bautista
Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

RAMON A. GONZALES, petitioner, vs. RUFINO G. HECHANOVA

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice
procurement committee composed of the other respondents herein 1 for the implementation of said
proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a
rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn filed the petition herein, averring that, in making
or attempting to make said importation of foreign rice, the aforementioned respondents "are acting
without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals
or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and
Corn Administration or any other government agency;" that petitioner has no other plain, speedy and
adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the
preservation of the rights of the parties during the pendency this case and to prevent the judgment
therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course;
that a writ of preliminary injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction
permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's
pray for a writ of preliminary injunction was set for hearing at which both parties appeared and argued
orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later
on, that the resolution said incident may require some pronouncements that would be more appropriate
in a decision on the merits of the case, the same was set for hearing on the merits thereafter. The
parties, however, waived the right to argue orally, although counsel for respondents filed their
memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest
to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense. Apart
from prohibiting the importation of rice and corn "by the Rice and Corn Administration or any other
government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the
Government" is to "engage in the purchase of these basic foods directly from those tenants, farmers,
growers, producers and landowners in the Philippines who wish to dispose of their products at a price
that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this
provision, petitioner, as a planter with a rice land of substantial proportion, 2 is entitled to a chance to
sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said
commodity will have to be effected with public funds mainly raised by taxation, and as a rice producer
and landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient personality
and interest to seek judicial assistance with a view to restraining what he believes to be an attempt to
unlawfully disburse said funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held, however, that
the principle requiring the previous exhaustion of administrative remedies is not applicable where the
question in dispute is purely a legal one",3 or where the controverted act is "patently illegal" or was
performed without jurisdiction or in excess of jurisdiction, 4 or where the respondent is a department
secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the
latter,5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency
of judicial intervention.7 The case at bar fails under each one of the foregoing exceptions to the general
rule. Respondents' contention is, therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed
importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by
the President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged
authority under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the President "or his
subordinates may take such preventive measure for the restoration of good order and maintenance of
peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to
prepare for the challenge of threats of war or emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed we are unanimously of the opinion -
assuming that said Republic Act No. 2207 is still in force that the two Acts are applicable to the
proposed importation in question because the language of said laws is such as to include within the
purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No.
2207, "it shall be unlawful for any person, association, corporation or government agency to import rice
and corn into any point in the Philippines", although, by way of exception, it adds, that "the President
of the Philippines may authorize the importation of these commodities through any government agency
that he may designate", is the conditions prescribed in Section 2 of said Act are present. Similarly,
Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any government agency"
from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the
importation of rice and corn by any "government agency", do not apply to importations "made by the
Government itself", because the latter is not a "government agency". This theory is devoid of merit. The
Department of National Defense and the Armed Forces of the Philippines, as well as respondents
herein, and each and every officer and employee of our Government, our government agencies and/or
agents. The applicability of said laws even to importations by the Government as such, becomes more
apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the
Philippines" and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government agency from
importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn
is left to private parties upon payment of the corresponding taxes", thus indicating that only "private
parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5)
years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation
promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a public
official and/or employees", he shall be subject to the additional penalty specified therein. A public official
is an officer of the Government itself, as distinguished from officers or employees of instrumentalities
of the Government. Hence, the duly authorized acts of the former are those of the Government, unlike
those of a government instrumentality which may have a personality of its own, distinct and separate
from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect,
even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employee of
the Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the
intent to apply the same to transactions made by the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in
Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other officers
and employees of the municipal and provincial governments and the Government of the
Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles, materials,
and supplies for public use, public buildings, or public works shall give preference to materials ...
produced ... in the Philippines or in the United States, and to domestic entities, subject to the
conditions hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for the armed
forces, preference shall be given to materials produced in the Philippines. The importation involved in
the case at bar violates this general policy of our Government, aside from the provisions of Republic
Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security predicated
upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia
problem" - and the alleged powers of the President as Commander-in-Chief of all armed forces in the
Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact
that the protection of local planters of rice and corn in a manner that would foster and accelerate self-
sufficiency in the local production of said commodities constitutes a factor that is vital to our ability to
meet possible national emergency. Even if the intent in importing goods in anticipation of such
emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were
so made as to discourage our farmers from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is
within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn
Administration "to accumulate stocks as a national reserve in such quantities as it may deem proper
and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a
national reserve ... be deposited by the administration throughout the country under the proper
dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...".
(Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much,
are not self-executory. They merely outline the general objectives of said legislation. The means for the
attainment of those objectives are subject to congressional legislation. Thus, the conditions under which
the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections
3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in
which resources necessary for our national defense may be secured by the Government of the
Philippines, but only "during a national mobilization",9which does not exist. Inferentially, therefore, in
the absence of a national mobilization, said resources shall be produced in such manner as Congress
may by other laws provide from time to time. Insofar as rice and corn are concerned, Republic Acts
Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time" 11 or when he has
placed the country or a part thereof under "martial law".12 Since neither condition obtains in the case at
bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the
Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it
would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and
3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus
populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the respondents, as
officials of this Government, have expressly affirmed again and again that there is no rice shortage.
And the importation is avowedly for stockpile of the Army not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears on
the surface. It implies that if an executive officer believes that compliance with a certain statute will not
benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule
of law.

And then, "the people" are either producers or consumers. Now as respondents explicitly admit
Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and
consumers, i.e., the people, it must follow that the welfare of the people lies precisely in
the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the Legislature,
and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation but
under certain conditions, which have not been, and should be complied with.

IV. The contracts with Vietnam and Burma

It is lastly contended that the Government of the Philippines has already entered into two (2) contracts
for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma;
that these contracts constitute valid executive agreements under international law; that such
agreements became binding effective upon the signing thereof by representatives the parties thereto;
that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and
aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are
inconsistent with each other, the conflict must be resolved under the American jurisprudence in
favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the
Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and
the aforementioned contracts have already been consummated, the Government of the Philippines
having already paid the price of the rice involved therein through irrevocable letters of credit in favor of
the sell of the said commodity. We find no merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as executive
agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said
agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the
President may, under the American constitutional system enter into executive
agreements without previous legislative authority, he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main
function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the
performance of the legislative powers of the latter, except in the exercise of his veto power. He may
not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same
through an executive agreement providing for the performance of the very act prohibited by said laws.
The American theory to the effect that, in the event of conflict between a treaty and a statute, the one
which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only
admit, but, also insist that the contracts adverted to are not treaties. Said theory may be justified upon
the ground that treaties to which the United States is signatory require the advice and consent of its
Senate, and, hence, of a branch of the legislative department. No such justification can be given as
regards executive agreements not authorized by previous legislation, without completely upsetting the
principle of separation of powers and the system of checks and balances which are fundamental in our
constitutional set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our courts, suffice
it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review,
revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court
may provide, final judgments and decrees of inferior courts in (1) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in
question". In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render
this case academic, Republic Act No. 2207 enjoins our Government not from entering into contracts for
the purchase of rice, but from importing rice, except under the conditions Prescribed in said Act. Upon
the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the
Government to purchase rice and corn directly from our local planters, growers or landowners; and (b)
it prohibits importations of rice by the Government, and leaves such importations to private parties. The
pivotal issue in this case is whether the proposed importation which has not been consummated as
yet is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government
to default in the performance of such obligations as it may have contracted with the sellers of the rice
in question, because, aside from the fact that said obligations may be complied with without
importing the commodity into the Philippines, the proposed importation may still be legalized by
complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents herein
should be enjoined from implementing the aforementioned proposed importation. However, the majority
favors the negative view, for which reason the injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said
authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack
of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered.
Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

Thirty Hogsheads of Sugar v. Boyle

13 U.S. (9 Cranch) 191

APPEAL FROM THE CIRCUIT COURT

FOR THE DISTRICT OF MARYLAND

Syllabus

The produce of an enemy's colony is to be considered as hostile property so long as it belongs to the
owner or the soil, whatever may be his national character in other respects, or whatever may be his
place of residence.
An island in the temporary occupation of the enemy is to be considered as an enemy's colony.

In deciding a question of the law of nations, this Court will respect the decisions of foreign courts.

The law of nations is the great source from which we derive these rules respecting belligerent and
neutral rights which are recognized by all civilized and commercial states throughout Europe and
America. This law is in part unwritten and in part conventional. To ascertain that which is unwritten, we
resort to the great principles of reason and justice, but, us these principles will be differently understood
by different nations under different circumstances, we consider them as being in some degree fixed
and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so
far as they are founded upon a law common to every country, will be received not as authority, but with
respect. The decisions of the courts of every country show how the law of nations in the given case is
understood in that country, and will be considered in adopting the rule which into prevail in this.

Without taking a comparative view of the justice or fairness of the rules established in the British courts
and of those established in the courts of other nations, there are circumstances not to be excluded from
consideration, which give to those rules a claim to our attention that we cannot entirely disregard. The
United States having at one time formed a component part of the British empire, their prize law was our
prize law. When we separated, it continued to be our prize law, so far as it was adapted to our
circumstances, and was not varied by the power which was capable of changing it.

It will not be advanced, in consequence of this former relation between the two countries, that any
obvious misconstruction of public law made by the British courts will be considered as forming a rule
for the American courts, or that any recent rule of the British courts is entitled to more respect than the
recent rules of other countries. But a case professing to be decided on ancient principles will not be
entirely disregarded, unless it be very unreasonable or be founded on a construction rejected by other
nations.

Page 13 U. S. 192

Appeal from the sentence of the Circuit Court for the District of Maryland condemning 30 hogsheads of
sugar, the property of the claimant, a Danish subject, it being the produce of his plantation in Santa
Cruz and shipped after the capture of that island by the British to a house in London for account and
risk of the claimant, who was a Danish officer and the second in authority in the government of the
island before its capture, and who, shortly after the capture, withdrew and has since resided in the
United States and in Denmark. By the articles of capitulation, the inhabitants were permitted to retain
their property, but could only ship the produce of the island to Great Britain. This sugar was captured
in July, 1812, after the declaration of war by the United States against Great Britain, and libeled as
British property.

Page 13 U. S. 195

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as follows:

The Island of Santa Cruz, belonging to the Kingdom of Denmark, was subdued, during the late war, by
the arms of his Britannic Majesty. Adrian Benjamin Bentzon, an officer of the Danish government, and
a proprietor of land therein, withdrew from the island on its surrender, and has since resided in
Denmark. The property of the inhabitants being secured to them, he still retained his estate in the island
under the management of an agent, who shipped thirty hogsheads of sugar, the produce of that estate,
on board a British ship, to a commercial house in London, on account and risk of the said A. B. Bentzon.
On her passage, she was captured by the American privateer The Comet, and brought into Baltimore,
where the vessel and cargo were libeled as enemy property. A claim for these sugars was put in by
Bentzon, but they were condemned with the rest of the cargo, and the sentence was affirmed in the
circuit court. The claimant then appealed to this Court.

Some doubt has been suggested whether Santa Cruz, while in the possession of Great Britain, could
properly be considered as a British island. But for this doubt there can be no foundation. Although
acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every
commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so
long as he retains the possession and government of them. The Island of Santa Cruz, after its
capitulation, remained a British island until it was restored to Denmark.

Must the produce of a plantation in that island, shipped by the proprietor himself, who is a Dane residing
in Denmark, be considered as British, and therefore enemy property?

Page 13 U. S. 196

In arguing this question, the counsel for the claimants has made two points.

1. That this case does not come within the rule applicable to shipments from an enemy country, even
as laid down in the British courts of admiralty.

2. That the rule has not been rightly laid down in those courts, and consequently will not be adopted in
this.

1. Does the rule laid down in the British courts of admiralty embrace this case?

It appears to the Court that the case of the Phoenix is precisely in point. In that case, a vessel was
captured in a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing
in Germany, then a neutral country, as the produce of their estates in Surinam.

The counsel for the captors considered the law of the case as entirely settled. The counsel for the
claimants did not controvert this position. They admitted it, but endeavored to extricate their case from
the general principle by giving it the protection of the Treaty of Amiens. In pronouncing his opinion, Sir
William Scott lays down the general rule thus:

"Certainly nothing can be more decided and fixed, as the principle of this court and of the Supreme
Court, upon very solemn arguments, than that the possession of the soil does impress upon the owner
the character of the country, as far as the produce of that plantation is concerned, in its transportation
to any other country, whatever the local residence of the owner may be. This has been so repeatedly
decided, both in this and the superior court, that it is no longer open to discussion. No question can be
made on the point of law, at this day."

Afterwards, in the case of the Vrow Anna Catharina, Sir William Scott lays down the rule and states its
reason. "It cannot be doubted," he says,

"that there are transactions so radically and fundamentally national as to impress the national character,
independent of peace or war, and the local residence of the parties. The

Page 13 U. S. 197

produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is
liable to be considered as the property of the enemy, by reason that the proprietor has incorporated
himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of
that country, in that particular transaction, independent of his own personal residence and occupation."

This rule laid down with so much precision does not, it is contended, embrace Mr. Bentzon's claim,
because he has not "incorporated himself with the permanent interests of the nation." He acquired the
property while Santa Cruz was a Danish colony, and he withdrew from the island when it became
British.

This distinction does not appear to the Court to be a sound one. The identification of the national
character of the owner with that of the soil, in the particular transaction, is not placed on the dispositions
with which he acquires the soil, or on his general character. The acquisition of land in Santa Cruz binds
him, so far as respects that land, to the fate of Santa Cruz, whatever its destiny may be. While that
island belonged to Denmark, the produce of the soil, while unsold, was, according to this rule, Danish
property, whatever might be the general character of the particular proprietor. When the island became
British, the soil and its produce, while that produce remained unsold, were British.
The general commercial or political character of Mr. Bentzon could not, according to this rule, affect
this particular transaction. Although incorporated, so far as respects his general character, with the
permanent interests of Denmark, he was incorporated, so far as respected his plantation in Santa Cruz,
with the permanent interests of Santa Cruz, which was at that time British, and though as a Dane he
was at war with Great Britain and an enemy, yet, as a proprietor of land in Santa Cruz, he was no
enemy; he could ship his produce to Great Britain in perfect safety.

The case is certainly within the rule as laid down in the British courts. The next inquiry is how far will
that rule be adopted in this country?

Page 13 U. S. 198

The law of nations is the great source from which we derive those rules respecting belligerent and
neutral rights which are recognized by all civilized and commercial states throughout Europe and
America. This law is in part unwritten and in part conventional. To ascertain that which is unwritten, we
resort to the great principles of reason and justice, but as these principles will be differently understood
by different nations under different circumstances, we consider them as being in some degree fixed
and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so
far as they are founded upon a law common to every country, will be received not as authority, but with
respect. The decisions of the courts of every country show how the law of nations, in the given case, is
understood in that country and will be considered in adopting the rule which is to prevail in this.

Without taking a comparative view of the justice or fairness of the rules established in the British courts,
and of those established in the courts of other nations, there are circumstances not to be excluded from
consideration, which give to those rules a claim to our attention that we cannot entirely disregard. The
United States having at one time formed a component part of the British empire, their prize law was our
prize law. When we separated, it continued to be our prize law so far as it was adapted to our
circumstances and was not varied by the power which was capable of changing it.

It will not be advanced, in consequence of this former relation between the two countries, that any
obvious misconstruction of public law made by the British courts, will be considered as forming a rule
for the American courts, or that any recent rule of the British courts is entitled to more respect than the
recent rules of other countries. But a case professing to be decided on ancient principles will not be
entirely disregarded unless it be very unreasonable, or be founded on a construction rejected by other
nations.

The rule laid down in the Phoenix is said to be a recent rule, because a case solemnly decided before
the lords commissioners in 1783, is quoted in the margin

Page 13 U. S. 199

as its authority. But that case is not suggested to have been determined contrary to former practice or
former opinions. Nor do we perceive any reason for supposing it to be contrary to the rule of other
nations in a similar case.

The opinion that ownership of the soil does in some degree connect the owner with the property, so far
as respects that soil, is an opinion which certainly prevails very extensively. It is not an unreasonable
opinion. Personal property may follow the person anywhere, and its character, if found on the ocean,
may depend on the domicile of the owner. But land is fixed. Wherever the owner may reside, that land
is hostile or friendly according to the condition of the country in which it is placed. It is no extravagant
perversion of principle, nor is it a violent offense to the course of human opinion, to say that the
proprietor, so far as respects his interest in this land, partakes of its character, and that the produce,
while the owner remains unchanged, is subject to the same disabilities. In condemning the sugars of
Mr. Bentzon as enemy property, this Court is of opinion that there was no error, and the sentence is

Affirmed with costs.

Reparation for Injuries Suffered in the Service of the United Nations

Advisory Opinion, ICJ Reports 1949, p 174
In 1948 the United Nations Mediator in the Middle East, Count Bernadotte, a Swedish diplomat, was
murdered by terrorists in territory under the control of the provisional government of Israel. Although
this action was immediately disowned and deplored by the Israeli government, the question arose
whether the United Nations possessed the capacity to make an international claim against Israel for
reparation in respect of the damage suffered by the United Nations as the result of Count Bernadottes
death.

The General Assembly of the United Nations requested an advisory opinion on this question from the
International Court of Justice. The court unanimously answered the question in the affirmative. In
particular, after consideration of the Charter of the United Nations and the purposes and powers of the
organization, the court held that the test of functional necessity required the attribution to the United
Nations of a legal personality separate from the legal personalities of its member states. Thus, as a
subject of public international law, the United Nations was capable of possessing rights and duties,
including the capacity to maintain its rights by bringing an international claim against a sovereign state.

Notes

1. The diplomatic settlement of the dispute between the United Nations and Israel arising out of the
murder of Count Bernadotte is instructive. In April 1950 the Secretary-General of the United Nations
submitted to the Israeli government a claim for reparation in the sum of $US54,628. The claim was
based on three elements of state responsibility:
(1) failure by Israel to exercise due diligence and to take all reasonable measures for the
prevention of the murder;
(2) liability of the Israeli government for acts committed by irregular forces in territory under
its control; and
(3) failure by Israel to take all measures required by public international law to bring the
perpetrators to justice.

In June 1950 the Israeli government, without formal admission of liability, paid the claim. The
payment was accompanied by a letter from the Minister for Foreign Affairs of Israel, addressed to
the Secretary-General of the United Nations, which stated that Israel sincerely regretted that this
dastardly assassination had taken place on Israeli territory.

2. The behind the scenes nature of diplomatic settlement of international disputes is illustrated by the
following examples:

A. In 1988 a United States warship, USS Vincennes, operating in the Persian Gulf, shot down an
unarmed civilian airliner operated by Iran Air killing all 290 persons on board. In 1996 the United
States State Department announced that the United States and Iran had settled Irans claims
arising out of this incident, such settlement involving substantial payment by the United States
to the survivors of each victim. See 90 AJIL 278 (1996).

B. In May 1999 during an eleven week air campaign against the Federal Republic of Yugoslavia,
United States military aircraft operating under NATO command bombed, in

error, the Chinese Embassy in Belgrade, killing three Chinese nationals and wounding twenty
others. On 30 July 1999 the United States and China reached agreement for the payment of
compensation by the United States to the families of the persons killed and to the persons
injured in this incident. Subsequently agreement was reached on the payment of
compensation for property damage. See 94 AJIL 127 (2000).

The Three Friends

No. 701

Argued February 15, 1897

Decided March 1, 1587

166 U.S. 1

CERTIORARI TO THE CIRCUIT COURT

OF APPEALS FOR THE FIFTH CIRCUIT

Syllabus

When a libel in admiralty is ordered to stand dismissed if not amended within a time named, the
prosecution of an appeal within that time is a waiver of the right to amend, and the decree of dismissal
takes effect immediately.

In admiralty cases, although the decree of the circuit court of appeals is made final in that court, this
Court may require any such case to be certified for its review and determination with the same power
and authority as if it had been brought here directly from the District or Circuit Court, and although this
power is not ordinarily to be exercised, the circumstances justified the allowance of the writ in this
instance.

The forfeiture of a vessel proceeded against under Rev.Stat. 5283, does not depend upon the
conviction of the person or persons charged with, doing the acts therein forbidden.

Neutrality, strictly speaking, consists in abstinence from any participation in a public, private or civil war
and in impartiality of conduct toward

Page 166 U. S. 2

both parties: but the maintenance unbroken of peaceful relations between two powers when the
domestic peace of one of them is disturbed is not neutrality in the sense in which the word is used when
the disturbance has acquired such head as to have demanded the recognition of belligerency, and, as
mere matter of municipal administration, no nation can permit unauthorized acts of war within its
territory in infraction of its sovereignty, while good faith towards friendly nations requires their
prevention.

The word " people," as used in Rev.Stat. 5283, forbidding the fitting out or arming of vessels with
intent that they shall be employed in the service of any foreign people, or to cruise or commit hostilities
against the subjects, citizens, or property of any foreign people with whom the United States are at
peace, covers any insurgent or insurrectionary body conducting hostilities, although its belligerency has
not been recognized.

Although the political department of the government has not recognized the existence of a de
facto belligerent power, engaged in hostility with Spain, it has recognized the existence of
insurrectionary warfare, prevailing before, at the time, and since the forfeiture sought to be enforced in
this case was incurred, and the case sharply illustrates the distinction between recognition of
belligerency and recognition of a condition of political revolt -- between recognition of the existence of
war in a material sense and of war in a legal sense.

The courts of the United States having been informed by the political department of the existence of an
actual conflict of arms, in resistance of the authority of a government with which the United States are
on terms of peace and amity, although acknowledgment of the insurgents as belligerents has not taken
place, the statute is applicable to the case.

The order for the release of the vessel was improvidently made, as it should not have been released.

The steamer Three Friends was seized November 7, 1896, by the collector of customs for the district
of St. Johns, Fla., as forfeited to the United States under 5283 of the Revised Statutes, and thereupon,
November 12th, was libeled on behalf of the United States in the District Court for the Southern District
of Florida.
The first two paragraphs of the libel alleged the seizure and detention of the vessel, and the libel then
continued:

"Third. That the said steamboat or steam vessel, the Three Friends, was on, to-wit, on the 23d day of
May, A.D. 1896, furnished, fitted out, and armed with intent that she should be employed in the service
of a certain people, to-wit, certain people then engaged in armed resistance to the government of the
King of Spain, in the Island of Cuba, to cruise

Page 166 U. S. 3

and commit hostilities against the subjects, citizens, and property of the King of Spain, in the Island of
Cuba, with whom the United States are and were at that date at peace."

"Fourth. That the said steamboat or steam vessel, Three Friends, on, to-wit, on the 23d day of May,
A.D. 1896, whereof one Napoleon B. Broward was then and there master, and within the said Southern
District of Florida, was then and there fitted out, furnished, and armed, with intent that said vessel, the
said Three Friends, should be employed in the service of a certain people, to-wit, the insurgents in the
Island of Cuba, otherwise called the 'Cuban revolutionists,' to cruise and commit hostilities against the
subjects, property, and people of the King of Spain, in the said Island of Cuba, with whom the United
States are and were then at peace."

"Fifth. That the said steamboat or steam vessel Three Friends, on, to-wit, on the 23d day of May, A.D.
1896, and whereof one N. B. Broward was then and there master, within the navigable waters of the
United States, and within the Southern District of Florida and the jurisdiction of this Court, was then and
there, by certain persons to the attorneys of the said United States unknown, furnished, fitted out, and
armed, being loaded with supplies and arms and munitions of war, and it, the said steam vessel Three
Friends, being then and there furnished, fitted out, and armed with one certain gun or guns, the exact
number to the said attorneys of the United States unknown, and with munitions of war thereof, with the
intent then and there to be employed in the service of a certain people, to-wit, certain people then
engaged in armed resistance to the government of the King of Spain in the Island of Cuba, and with
the intent to cruise and commit hostilities against the subjects, citizens, and property of the King of
Spain in the said Island of Cuba, and who, on the said date and day last aforesaid, and being so
furnished, fitted out, and armed as aforesaid, then and there aforesaid, from the navigable waters of
the United States, to-wit, from the St. Johns River, within the Southern District of Florida, and within the
jurisdiction of this Court aforesaid, proceeded upon a voyage to the Island of Cuba aforesaid, with the
intent

Page 166 U. S. 4

aforesaid, contrary to the form of the statute in such case made and provided. And that by force and
virtue of the acts of Congress in such case made and provided, the said steamboat or steam vessel,
her tackle, engines, machinery, apparel, and furniture, became and are forfeited to the use of the said
United States."

"Sixth. And the said attorneys say that by reason of all and singular the premises aforesaid, and that
by force of the statute in such case made and provided, the aforesaid and described steamboat or
steam vessel Three Friends, her tackle, machinery, apparel, and furniture, became and are forfeited to
the use of the said United States."

And concluded with a prayer for process and monition and the condemnation of the vessel as forfeited.
Attachment and monition having issued as prayed, Napoleon B. Broward and Montcalm Broward,
master and owners, intervened as claimants, applied for an appraisement of the vessel and her release
on stipulation, and filed the following exceptions to the libel:

"1. Sec. 5283, for an alleged violation of which the said vessel is sought to be forfeited, makes such
forfeiture dependent upon the conviction of a person for doing the act or acts denounced in the first
sentence of said section, and as a consequence of conviction of such person; whereas the allegations
in said libel do not show what persons had been guilty of the acts therein denounced as unlawful."
"2. The said libel does not show the Three Friends was fitted out and armed, attempted to be fitted out
and armed, or procured to be fitted out and armed, in violation of said section."

"3. The said libel does not show the said vessel was so fitted out and armed, or so attempted to be
fitted out and armed, or so procured to be fitted out and armed or furnished, with the intent that said
vessel should be employed in the service of a foreign prince or state or of a colony, district, or people
with whom the United States are at peace."

"4. The said libel does not show by whom said vessel was so fitted out."

"5. Said libel does not show in the service of what foreign

Page 166 U. S. 5

prince or state or colony or district or body politic the said vessel was so fitted out."

"6. The said libel does not show that said vessel was so armed or fitted out or furnished with the intent
that such vessel should be employed in the service of any body politic recognized by or known to the
United States as a body politic."

The vessel was appraised at $4,000, and a bond on stipulation given for $10,000, upon which she was
directed to be released. The cause came on to be heard upon the exceptions to the libel, and on
January 18th the following decree was entered:

"This cause coming on to be heard upon exceptions to the libel, and having been fully heard and
considered, it is ordered that said second, third, fifth, and sixth exceptions be sustained and that the
libelant have permission to amend said libel; and, in event said libel is not so amended within ten days,
the same stand dismissed, and the bond herein filed be cancelled."

From this decree the United States, on January 23, prayed an appeal to the United States Circuit Court
of Appeals for the Fifth Circuit, which was allowed and duly prosecuted.

The following errors were assigned:

"First. For that the court, over the objection of the libelants, allowed the said steam vessel, Three
Friends, to be released from custody upon the giving of bond."

"Second. For that the court erred in sustaining the 2d, 3d, 5th, and 6th exceptions of the claimants to
the libel of information of the libelants."

"Third. For that the court erred in entering a decree dismissing the libel of information herein."

On February 1, application was made to this Court for a writ of certiorari to bring up the cause from said
circuit court of appeals, and, having been granted and sent down, the record was returned accordingly.

Page 166 U. S. 49

MR. CHIEF JUSTICE FULLER, after stating the facts in the foregoing language, delivered the opinion
of the court.

It is objected that the decree was not final, but inasmuch as the libel was ordered to stand dismissed if
not amended within ten days, the prosecution of the appeal within that time was an election to waive
the right to amend, and the decree of dismissal took effect immediately.

In admiralty cases, among others enumerated, the decree of the circuit court of appeals is made final
in that court by the terms of section 6 of the Judiciary Act of March 3, 1891; but this Court may require
any such case, by certiorari or otherwise, to be certified "for its review and determination with the same
power and authority in the case as if it had been carried by appeal or writ of error to the supreme court"
-- that is, as if it had been brought directly from the district or the circuit court. 26 Stat. 826, c. 517, 6.
Accordingly, the writ of certiorari may be issued in such cases to the circuit court of appeals, pending
action by that court, and although this is a power not ordinarily to be exercised, American Construction
Co. v. Jacksonville Railway, 148 U. S. 372,148 U. S. 385, we were of opinion that the circumstances
justified the allowance of the writ in this instance, and the case is properly before us.

We agree with the district judge that the contention that forfeiture under section 5283 depends upon
the conviction of a person or persons for doing the acts denounced is untenable. The suit is a civil
suit in rem for the condemnation of the vessel only, and is not a criminal prosecution. The two
proceedings are wholly independent, and pursued in different

Page 166 U. S. 50

courts, and the result in each might be different. Indeed, forfeiture might be decreed if the proof showed
the prohibited acts were committed, though lacking as to the identity of the particular person by whom
they were committed. The Palmyra, 12 Wheat. 1; The Ambrose Light, 25 F. 408; The Meteor, 17
Fed.Cas. 178.

The Palmyra was a case of a libel of information against the vessel to forfeit her for a piratical
aggression, under certain acts of Congress which made no provision for the personal punishment of
the offenders; but it was held that even if such provision had been made, conviction would not have
been necessary to the enforcement of forfeiture. And Mr. Justice Story, delivering the opinion, said:

"It is well known that, at the common law, in many cases of felonies, the party forfeited his goods and
chattels to the crown. The forfeiture did not, strictly speaking, attach in rem, but it was a part, or at least
a consequence, of the judgment of conviction. It is plain from this statement that no right to the goods
and chattels of the felon could be acquired by the crown by the mere commission on the offense, but
the right attached only by the conviction of the offender. The necessary result was that, in every case
where the crown sought to recover such goods and chattels, it was indispensable to establish its right
by producing the record of the judgment of conviction. In the contemplation of the common law, the
offender's right was not divested until the conviction. But this doctrine never was applied to seizures
and forfeitures, created by statute, in rem, cognizable on the revenue side of the exchequer. The thing
is here primarily considered as the offender, or rather the offense is attached primarily to the thing, and
this whether the offense be malum prohibitum or malum in se. The same principle applies to
proceedings in rem on seizures in the admiralty. Many cases exist where the forfeiture for acts done
attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist where
there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been
decided that the prosecutions were dependent upon each other. But the practice has been,

Page 166 U. S. 51

and so this Court understands the law to be, that the proceeding in rem stands independent of, and
wholly unaffected by, any criminal proceeding in personam."

And see 43 U. S. 2 How. 210; United States v. The Little Charles, 1 Brock. 347, Fed.Cas. No. 15,612.

The libel alleged that the vessel was

"furnished, fitted out, and armed with intent that she should be employed in the service of a certain
people, to-wit, certain people then engaged in armed resistance to the government of the King of Spain,
in the Island of Cuba, to cruise and commit hostilities against the subjects, citizens, and property of the
King of Spain in the Island of Cuba, with whom the United States are and were at that date at peace."

The learned district judge held that this was insufficient under section 5283 because it was not alleged

"that said vessel had been fitted out with intent that she be employed in the service of a foreign prince
or state, or of any colony, district, or people recognized as such by the political power of the United
States."
In Wiborg v. United States, 163 U. S. 632, which was an indictment under section 5286, we referred to
the 11 sections, from 5281 to 5291, inclusive, which constitute title 67 of the Revised Statutes, and
said:

"The statute was undoubtedly designed in general to secure neutrality in wars between two other
nations, or between contending parties recognized as belligerents, but its operation is not necessarily
dependent on the existence of such State of belligerency,"

and the consideration of the present case, arising under section 5283, confirms us in the view thus
expressed.

It is true that, in giving a resume of the sections, we referred to section 5283 as dealing "with fitting out
and arming vessels in this country in favor of one foreign power as against another foreign power with
which we are at peace," but that was matter of general description, and the entire scope of the section
was not required to be indicated.

The title is headed "Neutrality," and usually called, by way of convenience, the "Neutrality Act," as the
term "Foreign Enlistment Act" is applied to the analogous British statute, but this does not operate as
a restriction.

Page 166 U. S. 52

Neutrality, strictly speaking, consists in abstinence from any participation in a public, private, or civil
war, and in impartiality of conduct towards both parties, but the maintenance unbroken of peaceful
relations between two powers when the domestic peace of one of them is disturbed is not neutrality in
the sense in which the word is used when the disturbance has acquired such head as to have
demanded the recognition of belligerency. And, as mere matter of municipal administration, no nation
can permit unauthorized acts of war within its territory in infraction of its sovereignty, while good faith
towards friendly nations requires their prevention.

Hence, as Mr. Attorney General Hoar pointed out, 13 Opinions 177-178, though the principal object of
the act was "to secure the performance of the duty of the United States, under the law of nations, as a
neutral nation in respect of foreign powers," the act is nevertheless an act "to punish certain offenses
against the United States by fines, imprisonment, and forfeitures, and the act itself defines the precise
nature of those offenses."

These sections were brought forward from the Act of April 20, 1818, 3 Stat. 447, c. 88, entitled "An act
in addition to the Act for the punishment of certain crimes against the United States,' and to repeal the
acts therein mentioned," which was derived from the Act of June 5, 1794, 1 Stat. 381, c. 50, entitled
"An act in addition to the `Act for the punishment of certain crimes against the United States,`" and the
Act of March 3, 1817, 3 Stat. 370, c. 58, entitled "An act more effectually to preserve the neutral relations
of the United States."

The piracy Act of March 3, 1819,3 Stat. 510, c. 77; Rev.Stat. 4293-4296, 5368, supplemented the
acts of 1817 and 1818.

The act of 1794, which has been generally recognized as the first instance of municipal legislation in
support of the obligations of neutrality, and a remarkable advance in the development of international
law, was recommended to Congress by President Washington in his annual address on December 3,
1793, was drawn by Hamilton, and passed the Senate by the

Page 166 U. S. 53

casting vote of Vice President Adams. Ann.3d Cong. 11, 67. Its enactment grew out of the proceedings
of the then French minister, which called forth President Washington's proclamation of neutrality in the
spring of 1793. And though the law of nations had been declared by Chief Justice Jay in his charge to
the grand jury at Richmond May 22, 1793 (Wharton's State Trials 49, 56, Fed.Cas. No. 6,360), and by
Mr. Justice Wilson, Mr. Justice Iredell, and Judge Peters, on the trial of Henfield in July of that year
(id. 66, 84) to be capable of being enforced in the courts of the United States criminally, as well as
civilly, without further legislation, yet it was deemed advisable to pass the act in view of controversy
over that position, and, moreover, in order to provide a comprehensive code in prevention of acts by
individuals within our jurisdiction inconsistent with our own authority, as well as hostile to friendly
powers.

Section 5283 of the Revised Statutes is as follows:

"Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and
arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or
arming, of any vessel with intent that such vessel shall be employed in the service of any foreign prince
or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens,
or property of any foreign prince or state, or of any colony, district, or people, with whom the United
States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the
United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a
high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more
than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials,
arms, ammunition, and stores, which may have been procured for the building and equipment thereof,
shall be forfeited; one-half to the use of the informer, and the other half to the use of the United States."

By referring to section 3 of the Act of June 5, 1794, section 1 of the act of 1817, and section 3 of the
act of

Page 166 U. S. 54

1818, which are given in the margin, [Footnote 1] it will be seen that the words "or of any colony, district,
or people" were inserted in the original law by the act of 1817, carried forward by the act of 1818, and
so into section 5283.

The immediate occasion of the passage of the Act of March 3, 1817, appears to have been a
communication, under date of December 20, 1816, from the Portuguese minister to Mr. Monroe, then
Secretary of State, informing him of the fitting out of privateers at Baltimore to act against Portugal, in
case it should turn out that that government was at war with the "self-styled government of Buenos
Ayres," and soliciting "the proposition to Congress of such provisions of law as will prevent such
attempts for the future." On December 26, 1816, President Madison sent a special message to
Congress, in which he referred to the inefficacy of existing laws

"to prevent

Page 166 U. S. 55

violations of the obligations of the United States as a nation at peace towards belligerent parties and
other unlawful acts on the high seas by armed vessels equipped within the waters of the United States,"

and, "with a view to maintain more effectually the respect due to the laws, to the character, and to the
neutral and pacific relations of the United States," recommended further legislative provisions. This
message was transmitted to the minister December 27th, and he was promptly officially informed of the
passage of the act in the succeeding month of March. Geneva Arbitration case, United States, 138. In
Mr. Dana's elaborate note to section 439 of his edition of Wheaton's International Law, it is said that
the words "colony, district, or people" were inserted on the suggestion of the Spanish minister that the
South American provinces in revolt, and not recognized as independent, might not be included in

Page 166 U. S. 56

the word "state." Under the circumstances, this act was entitled as "to preserve the neutral relations of
the United States," while the title of the act of 1794 described it as "in addition" to the crimes Act of April
30, 1790, 1 Stat. 112, c. 9, and the act of 1818 was entitled in the same way. But there is nothing in all
this to indicate that the words "colony, district, or people" had reference solely to communities whose
belligerency had been recognized, and the history of the times (an interesting review of which has been
furnished us by the industry of counsel) does not sustain the view that insurgent districts or bodies,
unrecognized as belligerents, were not intended to be embraced. On the contrary, the reasonable
conclusion is that the insertion of the words "district or people" should be attributed to the intention to
include such bodies as, for instance, the so-called "Oriental Republic of Artigas," and the governments
of Petion and Christophe, whose attitude had been passed on by the courts of New York more than a
year before in Gelston v. Hoyt, 13 Johns. 141, 561, which was then pending in this Court on writ of
error. There was no reason why they should not have been included, and it is to the extended
enumeration as covering revolutionary bodies laying claim to rights of sovereignty, whether recognized
or unrecognized, that Chief Justice Marshall manifestly referred in saying, in The Gran Para, 7 Wheat.
471, 20 U. S. 489, that the act of 1817 "adapts the previous laws to the actual situation of the world."
At all events, Congress imposed no limitation on the words "colony, district, or people," by requiring
political recognition.

Of course, a political community whose independence has been recognized is a "state" under the act,
and if a body embarked in a revolutionary political movement, whose independence has not been, but
whose belligerency has been, recognized is also embraced by that term, then the words "colony,
district, or people," instead of being limited to a political community which has been recognized as a
belligerent, must necessarily be held applicable to a body of insurgents associated together in a
common political enterprise, and carrying on hostilities against the parent country, in the effort to
achieve

Page 166 U. S. 57

independence, although recognition of belligerency has not been accorded.

And as, agreeably to the principles of international law and the reason of the thing, the recognition of
belligerency, while not conferring all the rights of an independent state, concedes to the government
recognized the rights, and imposes upon it the obligations, of an independent state in matters relating
to the war being waged, no adequate ground is perceived for holding that acts in aid of such a
government are not in aid of a state, in the sense of the statute.

Contemporaneous decisions are not to the contrary, though they throw no special light upon the precise
question.

Gelston v. Hoyt, 3 Wheat. 246, decided at February term, 1818 (and below, January and February,
1816), was an action of trespass against the collector and surveyor of the port of New York for seizing
the ship American Eagle, her tackle, apparel, etc. The seizure was made July 10, 1810, by order of
President Madison under section 3 of the act of 1794, corresponding to section 5283. The ship was
intended for the service of Petion against Christophe, who had divided the Island of Hayti between
them, and were engaged in a bloody contest, but whose belligerency had not been recognized. It was
held that the service of "any foreign prince or state" imported a prince or state which had been
recognized by the government, and, as there was no recognition in any manner, the question whether
the recognition of the belligerency of a de facto sovereignty would bring it within those words did not
arise.

The case of The Estrella, 4 Wheat. 298, involved the capture of the Venezuelan privateer on April 24,
1817. There was a recapture by an American vessel, and the prize thus came before the court at New
Orleans for adjudication. The privateer was found to have a regular commission from Bolivar, issued
as early as 1816, but it had violated section 2 of the act of 1794, which is the same as section 2 of the
act of 1818, omitting the words "colony, district, or people" (and is now section 5282 of the Revised
Statutes), by enlisting men at New Orleans, provided Venezuela was

Page 166 U. S. 58

a state within the meaning of that act. The decision proceeded on the ground that Venezuela was to be
so regarded on the theory that recognition of belligerency made the belligerent to that intent a state.

In The Nueva Anna and Liebre, 6 Wheat. 193, the record of a prize court at "Galveztown," constituted
under the authority of the "Mexican republic," was offered in proof, and this Court refused to recognize
the belligerent right claimed, because our government had not acknowledged "the existence of any
Mexican republic or state at war with Spain;" and in The Gran Para, 7 Wheat. 471, Chief Justice
Marshall referred to Buenos Ayres as a state within the meaning of the act of 1794.
Even if the word "state," as previously employed, admitted of a less liberal signification, why should the
meaning of the words "colony, district, or people" be confined only to parties recognized as belligerent?
Neither of these words is used as equivalent to the word "state," for they were added to enlarge the
scope of a statute which already contained that word. The statute does not say "foreign colony, district,
or people," nor was it necessary, for the reference is to that which is part of the dominion of a foreign
prince or state, though acting in hostility to such prince or state. Nor are the words apt if confined to a
belligerent. As argued by counsel for the government, an insurgent colony under the act is the same
before as after the recognition of belligerency, as shown by the instance of the colonies of Buenos
Ayres and Paraguay, the belligerency of one having been recognized, but not of the other, while the
statute was plainly applicable to both. Nor is "district" an appropriate designation of a recognized
power de facto, since such a power would represent, not the territory actually held, but the territory
covered by the claim of sovereignty. And the word "people," when not used as the equivalent of "state"
or "nation," must apply to a body of persons less than a state or nation, and this meaning would be
satisfied by considering it as applicable to any consolidated political body.

In United States v. Quincy, 6 Pet. 445, 31 U. S. 467, an indictment under the third section of the act of
1818, the Court disposed

Page 166 U. S. 59

of the following, among other, points, thus:

"The last instruction or opinion asked on the part of the defendant was that, according to the evidence
in the cause, the United Provinces of Rio de la Plata is, and was at the time of the offense alleged in
the indictment, a government, acknowledged by the United States, and thus was a 'state,' and not a
'people,' within the meaning of the act of Congress under which the defendant is indicted, the word
'people' in that act being intended to describe communities under an existing government not
recognized by the United States, and that the indictment therefore cannot be supported on this
evidence."

"The indictment charges that the defendant was concerned in fitting out the Bolivar with intent that she
should be employed in the service of a foreign people -- that is to say, in the service of the United
Provinces of Rio de la Plata. It was in evidence that the United Provinces of Rio de la Plata had been
regularly acknowledged as an independent nation by the executive department of the government of
the United States, before the year 1827, and therefore it is argued that the word 'people' is not properly
applicable to that nation or power."

"The objection is one purely technical, and we think not well founded. The word 'people,' as here used,
is merely descriptive of the power in whose service the vessel was intended to be employed, and it is
one of the denominations applied by the act of Congress to a foreign power. The words are 'in the
service of any foreign prince or state, or of any colony, district, or people.' The application of the word
'people' is rendered sufficiently certain by what follows under the videlicet, 'that is to say, the United
Provinces of Rio de la Plata.' This particularizes that which by the word 'people' is left too general. The
descriptions are no way repugnant or inconsistent with each other, and may well stand together. That
which comes under the videlicet only serves to explain what is doubtful and obscure in the word
'people.'"

All that was decided was that any obscurity in the word "people," as applied to a recognized
government, was cured by the videlicet.

Page 166 U. S. 60

Nesbitt v. Lushington, 4 T.R. 783, was an action on a policy of insurance in the usual form, and among
the perils insured against were "pirates, rovers, thieves," and "arrests, restraints, and detainments of
all kings, princes, and people, of what nation, condition, or quality soever." The vessel, with a cargo of
corn, was driven into a port and was seized by a mob, who assumed the government of her and forced
the captain to sell the corn at a low price. It was ruled that this was a loss by pirates, and the
maxim, noscitur a sociis was applied by Lord Kenyon and Mr. Justice Buller. Mr. Justice Buller said:
"'People' means 'the supreme power;' 'the power of the country,' whatever it may be. This appears clear
from another part of the policy; for, where the underwriters insure against the wrongful acts of
individuals, they describe them by the names of 'pirates, rogues, thieves.' Then, having stated all the
individual persons against whose acts they engage, they mention other risks -- those occasioned by
the acts of 'kings, princes, and people of what nation, condition, or quality soever.' Those words
therefore must apply to 'nations' in their collective capacity."

As remarked in the brief of Messrs. Richard H. Dana, Jr., and Horace Gray, Jr., filed by Mr. Cushing
in Mauran v. Insurance Co., 6 Wall. 1, the words were "doubtless originally inserted with the view of
enumerating all possible forms of government, monarchical, aristocratical, and democratic."

The British foreign enlistment act (59 Geo. III. c. 69) was bottomed on the act of 1818, and the seventh
section, the opening portion of which is given below, [Footnote 2] corresponded to the

Page 166 U. S. 61

third section of that act. Its terms were, however, considerably broader, and left less to construction.
But we think the words "colony, district, or people" must be treated as equally comprehensive in their
bearing here.

In the case of The Salvador, L.R. 3 P. C. 218, the Salvador had been seized under warrant of the
governor of the Bahama Islands, and proceeded against in the vice admiralty court there for breach of
that section, and was, upon the hearing of the cause, ordered to be restored; the court not being
satisfied that the vessel was engaged, within the meaning of the section, in aiding parties in insurrection
against a foreign government, as such parties did not assume to exercise the powers of government
over any portion of the territory of such government. This decision was overruled on appeal by the
judicial committee of the privy council, and Lord Cairns, delivering the opinion, said:

"It is to be observed that this part of the section is in the alternative. The ship may be employed in the
service of a foreign prince, state, or potentate, or foreign state, colony, province, or part of any province
or people -- that is to say, if you find any consolidated body in the foreign state, whether it be the
potentate, who has the absolute dominion, or the government, or a part of the province or of the people,
or the whole of the province or the people acting for themselves, that is sufficient. But, by way of
alternative, it is suggested that there may be a case where, although you cannot say that the province,
or the people, or a part of the province or people, are employing the ship, there yet may be some person
or persons who may

Page 166 U. S. 62

be exercising, or assuming to exercise, powers of government in the foreign colony or state, drawing
the whole of the material aid for the hostile proceedings from abroad, and therefore, by way of
alternative, it is stated to be sufficient if you find the ship prepared or acting in the service of"

"any person or persons exercising, or assuming to exercise, any powers of government in or over any
foreign state, colony, province, or part of any province or people,"

"but that alternative need not be resorted to if you find the ship is fitted out and armed for the purpose
of being 'employed in the service of any foreign state or people, or part of any province or people. . . .'"

"It may be (it is not necessary to decide whether it is or not) that you could not state who were the
person or persons, or that there were any person or persons, exercising, or assuming to exercise,
powers of government in Cuba, in opposition to the Spanish authorities. That may be so. Their lordships
express no opinion upon that subject, but they will assume that there might be a difficulty in bringing
the case within that second alternative of the section; but their lordships are clearly of opinion that there
is no difficulty in bringing the case under the first alternative of the section, because their lordships find
these propositions established beyond all doubt: there was an insurrection in the island of Cuba; there
were insurgents who had formed themselves into a body of people acting together, undertaking and
conducting hostilities; these insurgents, beyond all doubt, formed part of the province or people of Cuba;
and, beyond all doubt, the ship in question was to be employed, and was employed, in connection with
and in the service of this body of insurgents."
We regard these observations as entirely apposite, and while the word "people" may mean the entire
body of the inhabitants of a state, or the state or nation collectively in its political capacity, or the ruling
power of the country, its meaning in this branch of the section, taken in connection with the words
"colony" and "district," covers, in our judgment, any insurgent or insurrectionary "body of people acting
together, undertaking and conducting hostilities," although

Page 166 U. S. 63

its belligerency has not been recognized. Nor is this view otherwise than confirmed by the use made of
the same words in the succeeding part of the sentence, for they are there employed in another
connection -- that is, in relation to the cruising or the commission of hostilities "against the subjects,
citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the
United States are at peace," and, as thus used, are affected by obviously different considerations. If
the necessity of recognition in respect of the objects of hostilities, by sea or land, were conceded, that
would not involve the concession of such necessity in respect of those for whose service the vessel is
fitted out.

Any other conclusion rests on the unreasonable assumption that the act is to remain ineffectual unless
the government incurs the restraints and liabilities incident to an acknowledgment of belligerency. On
the one hand, pecuniary demands, reprisals, or even war may be the consequence of failure in the
performance of obligations towards a friendly power, while on the other, the recognition of belligerency
involves the rights of blockade, visitation, search, and seizure of contraband articles on the high seas,
and abandonment of claims for reparation on account of damages suffered by our citizens from the
prevalence of warfare.

No intention to circumscribe the means of avoiding the one by imposing as a condition the acceptance
of the contingencies of the other can be imputed.

Belligerency is recognized when a political struggle has attained a certain magnitude, and affects the
interests of the recognizing power; and, in the instance of maritime operations, recognition may be
compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates. The
Ambrose Light, 25 F. 408; 3 Whart.Dig.Int.Law, 381, and authorities cited.

But it belongs to the political department to determine when belligerency shall be recognized, and its
action must be accepted according to the terms and intention expressed.

The distinction between recognition of belligerency and recognition of a condition of political revolt --
between recognition

Page 166 U. S. 64

of the existence of war in a material sense and of war in a legal sense -- is sharply illustrated by the
case before us, for here the political department has not recognized the existence of a de
facto belligerent power engaged in hostility with Spain, but has recognized the existence of
insurrectionary warfare prevailing before at the time, and since this forfeiture is alleged to have been
incurred.

On June 12, 1895, a formal proclamation was issued by the President, and countersigned by the
Secretary of State, informing the people of the United States that the Island of Cuba was "the seat of
serious civil disturbances, accompanied by armed resistance to the authority of the established
government of Spain, a power with which the United States are and desire to remain on terms of peace
and amity;" declaring that

"the laws of the United States prohibit their citizens, as well as all others being within and subject to
their jurisdiction, from taking part in such disturbances adversely to such established government, by
accepting or exercising commissions for warlike service against it, by enlistment or procuring others to
enlist for such service, by fitting out or arming, or procuring to be fitted out and armed, ships of war for
such service, by augmenting the force of any ship of war engaged in such service and arriving in a port
of the United States, and by setting on foot or providing or preparing the means for military enterprises
to be carried on from the United States against the Territory of such government,"
and admonishing all such citizens and other persons to abstain from any violation of these laws.

In his annual message of December 2, 1895, the President said:

"Cuba is again gravely disturbed. An insurrection, in some respects, more active than the last preceding
revolt, which continued from 1868 to 1878, now exists in a large part of the eastern interior of the island,
menacing even some populations on the coast. Besides deranging the commercial exchanges of the
island, of which our country takes the predominant share, this flagrant condition of hostilities, by
arousing sentimental sympathy and inciting adventurous support among our people, has entailed
earnest effort on the part of this

Page 166 U. S. 65

government to enforce obedience to our neutrality laws and to prevent the territory of the United States
from being abused as a vantage ground from which to aid those in arms against Spanish sovereignty."

"Whatever may be the traditional sympathy of our countrymen as individuals with a people who seem
to be struggling for larger autonomy and greater freedom, deepened as such sympathy naturally must
be in behalf of our neighbors, yet the plain duty of their government is to observe in good faith the
recognized obligations of international relationship. The performance of this duty should not be made
more difficult by a disregard on the part of our citizens of the obligations growing out of their allegiance
to their country, which should restrain them from violating as individuals the neutrality which the nation
of which they are members is bound to observe in its relations to friendly sovereign states. Though
neither the warmth of our people's sympathy with the Cuban insurgents, nor our loss and material
damage consequent upon the futile endeavors thus far made to restore peace and order, nor any shock
our humane sensibilities may have received from the cruelties which appear to especially characterize
this sanguinary and fiercely conducted war have in the least shaken the determination of the
government to honestly fulfill every international obligation, yet it is to be earnestly hoped on every
ground that the devastation of armed conflict may speedily be stayed, and order and quiet restored to
the distracted island, bringing in their train the activity and thrift of peaceful pursuits."

July 27, 1896, a further proclamation was promulgated, and in the annual message of December 7,
1896, the President called attention to the fact that "the insurrection in Cuba still continues, with all its
perplexities," and gave an extended review of the situation.

We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority
of a government with which the United States are on terms of peace and amity, although
acknowledgment of the insurgents as belligerents by the political department has not taken

Page 166 U. S. 66

place, and it cannot be doubted that, this being so, the act in question is applicable.

We see no justification for importing into section 5283 words which it does not contain, and which would
make its operation depend upon the recognition of belligerency; and, while the libel might have been
drawn with somewhat greater precision, we are of opinion that it should not have been dismissed.

This conclusion brings us to consider whether the vessel ought to have been released on bond and
stipulation.

It is provided by section 938 of the Revised Statutes that:

"Upon the prayer of any claimant to the court that any vessel, goods, wares, or merchandise seized
and prosecuted under any law respecting the revenue from imports or tonnage, or the registering and
recording, or the enrolling and licensing of vessels, or any part thereof, should be delivered to him, the
court shall appoint three proper persons to appraise such property, who shall be sworn in open court,
or before a commissioner appointed,"

etc.
"If, on the return of the appraisement, the claimant, with one or more sureties, to be approved by the
court, shall execute a bond to the United States,"

etc., "the court shall, by rule, order such vessel, goods, wares, or merchandise to be delivered to such
claimant. . . ."

Section 939 provides for the sale of vessels

"condemned by virtue of any law respecting the revenue from imports or tonnage, or the registering
and recording, or the enrolling and licensing of vessels, and for which bond shall not have been given
by the claimant. . . ."

Section 940 authorizes the judges to do in vacation everything that they could do in term time in regard
to bonding and sales, and to "exercise every other incidental power necessary to the complete
execution of the authority herein granted."

Section 941 provides:

"When a warrant of arrest or other process in rem is issued in any cause of admiralty jurisdiction, except
the cases of seizure for forfeiture under any law of the United States, the marshal shall stay the
execution of such process, or discharge the property arrested if the process has been levied, on
receiving

Page 166 U. S. 67

from the claimant of the property a bond or stipulation in double the amount claimed by the libellant,
with sufficient surety, to be approved by the judge,"

etc.

By section 917, this Court may prescribe rules of practice in admiralty "in any manner not inconsistent
with any law of the United States."

Rule 10, as thus prescribed, provides for the sale of perishable articles or their delivery upon security
to "abide by and pay the money awarded by the final decree."

Rule 11 is as follows:

"In like manner, where any ship shall be arrested, the same may, upon the application of the claimant,
be delivered to him upon a due appraisement, to be had under the direction of the court, upon the
claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation,
with sureties, as aforesaid, and if the claimant shall decline any such application, then the court may,
in its discretion, upon the application of either party, upon due cause shown, order a sale of such ship,
and the proceeds thereof to be brought into court or otherwise disposed of, as it may deem most for
the benefit of all concerned."

In The Mary N. Hogan, 17 F. 813, Judge Brown, of the Southern District of New York, refused to deliver
the vessel on stipulation, and, referring to Rule 11, said that it was not in form imperative in all cases,
but left to the court a discretion which might be rightly exercised under peculiar circumstances, and that
the rule clearly should not be applied where the object of the suit was

"not the enforcement of any money demand, nor to secure any payment of damages, but to take
possession of and forfeit the vessel herself in order to prevent her departure upon an unlawful
expedition in violation of the neutrality laws of the United States."

And he added:

"It is clearly not the intention of section 5283, in imposing a forfeiture, to accept the value of the vessel
as the price of a hostile expedition against a friendly power, which might entail a hundredfold greater
liabilities on the part of the government. No unnecessary interpretation of the rules should be adopted
which would permit that result, and yet
Page 166 U. S. 68

such might be the result, and even the expected result, of a release of the vessel on bond. The plain
intent of section 5283 is effectually to prevent any such expedition altogether, through the seizure and
forfeiture of the vessel herself. The government is therefore entitled to retain her in custody, and Rule
11 cannot be properly applied to such a case."

In The Alligator, 1 Gall. 145 (decided in 1812), Mr. Justice Story referred to an invariable practice, in all
proper cases of seizure, to take bonds for the property whenever application was made by the claimant
for the purpose, but that was a case where the claimant had been allowed to give bond without
objection, and was attempting to avoid payment by alleging its irregularity, and in The Struggle, 1 Gall.
476 (1813), the same eminent judge, in making a similar ruling, said "[t]hat where the claimant
voluntarily accepts a delivery on bail, it is an estoppel of his right to contest the validity of the security."

But in section 941 of the Revised Statutes, the exception was introduced of "cases of seizure for
forfeiture under any law of the United States," and it seems obvious that the release on bond of a vessel
charged with liability to forfeiture under section 5283, before answer or hearing, and against the
objection of the United States, could not have been contemplated. However, as this application was
not based upon absolute right, but addressed to the sound discretion of the court, it is enough to hold
that, under the circumstances of this case, the vessel should not have been released as it was, and
should be recalled on the ground that the order of release was improvidently made. United States v.
Ames, 99 U. S. 39, 99 U. S. 41, 99 U. S. 43. If the vessel is held without probable cause, her owners
can recover demurrage; and, moreover, vessels so situated are frequently allowed to pursue their
ordinary avocations while in custody pending suit, under proper supervision, and in order to prevent
hardship.

The decree must be reversed, and the cause remanded to the district court with directions to resume
custody of the vessel, and proceed with the case in conformity with this opinion.

Ordered accordingly.

Page 166 U. S. 69

[Footnote 1]

Act June 5, 1794:

"Sec. 3. That if any person shall within any of the ports, harbors, bays, rivers or other waters of the
United States, fit out and arm or attempt to fit out and arm or procure to be fitted out and armed, or shall
knowingly be concerned in the furnishing, fitting out or arming of any ship or vessel with intent that such
ship or vessel shall be employed in the service of any foreign prince or state to cruise or commit
hostilities upon the subjects, citizens or property of another foreign prince or state with whom the United
States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the
United States for any ship or vessel to the intent that she may be employed as aforesaid, every such
person so offending shall upon conviction be adjudged guilty of a high misdemeanor, and shall be fined
and imprisoned at the discretion of the court in which the conviction shall be had, so as the fine to be
imposed shall in no case be more than five thousand dollars and the term of imprisonment shall not
exceed three years, and every such ship or vessel with her tackle, apparel and furniture together with
all materials, arms, ammunition and stores which may have been procured for the building and
equipment thereof shall be forfeited, one-half to the use of any person who shall give information of the
offense, and the other half to the use of the United States."

Act March 3, 1817:

"Section 1. That if any person shall, within the limits of the United States, fit out and arm, or attempt to
fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing,
fitting out or arming, of any such ship or vessel, with intent that such ship or vessel shall be employed
in the service of any foreign prince or state, or of any colony, district or people to cruise or commit
hostilities, or to aid or cooperate in any warlike measure whatever, against the subjects, citizens, or
property, of any prince or state, or of any colony, district or people with whom the United States are at
peace, every such person so offending shall, upon conviction, be adjudged guilty of a high
misdemeanor, and shall be fined and imprisoned at the discretion of the court in which the conviction
shall be had, so as the fine to be imposed shall in no case be more than ten thousand dollars, and the
term of imprisonment shall not exceed ten years, and every such ship or vessel, with her tackle, apparel,
and furniture, together with all materials, arms, ammunition, and stores, which may have been procured
for the building and equipment thereof, shall be forfeited, one-half to the use of any person who shall
give information, and the other half to the use of the United States."

Act April 20, 1818:

"Sec. 3. That if any person shall, within the limits of the United States, fit out and arm, or attempt to fit
out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing,
fitting out, or arming, of any ship or vessel with intent that such ship or vessel shall be employed in the
service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities
against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or
people, with whom the United States are at peace, or shall issue or deliver a commission within the
territory or jurisdiction of the United States, for any ship or vessel, to the intent that she may be
employed as aforesaid, every person so offending shall be deemed guilty of a high misdemeanor, and
shall be fined not more than ten thousand dollars, and imprisoned not more than three years, and every
such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms,
ammunition, and stores, which may have been procured for the building and equipment thereof, shall
be forfeited; one-half to the use of the informer, and the other half to the use of the United States."

[Footnote 2]

"That if any person, within any part of the United Kingdom, or in any part of his majesty's dominions
beyond the seas, shall, without the leave and license of his majesty for that purpose first had and
obtained as aforesaid, equip, furnish, fit out or arm, or attempt or endeavor to equip, furnish, fit out or
arm, or procure to be equipped, furnished, fitted out or armed, or shall knowingly aid, assist, or be
concerned in the equipping, furnishing, fitting out or arming of any ship or vessel with intent or in order
that such ship or vessel shall be employed in the service of any foreign prince, state or potentate, or of
any foreign colony, province or part of any province or people, or of any person or persons exercising
or assuming to exercise any powers of government in or over any foreign state, colony, province or part
of any province or people, as a transport or storeship, or with intent to cruise or commit hostilities
against any prince, state or potentate, or against the subjects or citizens of any prince, state or
potentate, or against the persons exercising or assuming to exercise the powers of government in any
colony, province or part of any province or country, or against the inhabitants of any foreign colony,
province or part of any province or country, with whom his majesty shall not then be at war; or shall,
within the United Kingdom, or any of his majesty's dominions, or in any settlement, colony, territory,
island or place belonging or subject to his majesty, issue or deliver any commission for any ship or
vessel, to the intent that such ship or vessel shall be employed as aforesaid, etc."

MR. JUSTICE HARLAN, dissenting.

I am unable to concur in the views expressed by the Court in the opinion just delivered. In my judgment,
a very strained construction has been put on the statute * under which this case arises -- one not
justified by its words, or by any facts disclosed by the record, or by any facts of a public character of
which we may take judicial cognizance. It seems to me that the better construction is that given by the
learned judge of the district court. I concur in the general views expressed in his able and satisfactory
opinion, which is given below. That opinion so clearly and forcibly states the reasons in support of the
conclusion reached by me that I am relieved of the labor of preparing one, which I would be glad to do
if the pressure in respect of other business in the court did not render that course impracticable.

The present case has been made to depend largely upon the language of public documents issued by
the executive branch of the government. If the defects in the libel can be supplied in that way, reference
should be made to the last annual message and accompanying documents sent by President Cleveland
to the Congress of the United States. In that message, the President said that the so-called "Cuban
government" had given up all attempt to exercise its functions, and that it was "confessedly (what there
is the best reason for
Page 166 U. S. 70

supposing it always to have been in fact) a government merely on paper." And in his report to the
President, under date of December 7, 1896, the Secretary of State said:

"So far as our information shows, there is not only no effective local government by the insurgents in
the territories they overrun, but there is not even a tangible pretense to established administration
anywhere. Their organization, confined to the shifting exigencies of the military operations of the hour,
is nomadic, without definite centers, and lacking the most elementary features of municipal government.
There nowhere appears the nucleus of statehood. The machinery for exercising the legitimate rights
and powers of sovereignty and responding to the obligations which de facto sovereignty entails in the
face of equal rights of other states is conspicuously lacking. It is not possible to discern a homogeneous
political entity, possessing and exercising the functions of administration and capable, if left to itself, of
maintaining orderly government in its own territory and sustaining normal relations with the external
family of governments."

It does not seem to me that the persons thus described as having no government except one on paper,
with no power of administration, and entirely nomadic, constitute a colony, district, or "people," within
the meaning of the statute. In my opinion, the words "of any colony, district, or people" should be
interpreted as applying only to a colony, district, or people that have "subjects, citizens, or property." I
cannot agree that the persons described by the President and Secretary of State can be properly
regarded as constituting a colony, district, or people, having subjects, citizens, or property. It cannot be
that the words "any colony, district, or people," where they first appear in section 5283, have any
different meaning from the same words in a subsequent clause, "the subjects, citizens, or property . . .
of any colony, district, or people with whom the United States are at peace." The United States cannot
properly be said to be "at peace," or not "at peace," with insurgents who have no government except
"on paper," no power of administration, and are merely nomads.

Page 166 U. S. 71

The opinion of Locke, District Judge, adopted by MR. JUSTICE HARLAN, is as follows:

"This vessel has been libeled for forfeiture under the provisions of section 5283 of the Revised Statutes
of the United States."

"The libel alleges that said steam vessel was on the 23d day of May, A.D. 1896, furnished, fitted, and
armed"

"with intent that she should be employed by certain insurgents or persons in the Island of Cuba to cruise
or commit hostilities against the subjects, citizens, or property of the said Island of Cuba, and against
the King of Spain, and the subjects, citizens, and property of the said King of Spain in the Island of
Cuba, with whom the United States are and were at that date at peace."

"To this there have been exceptions filed upon two grounds:"

"(1) That forfeiture under this section depends upon the conviction of a person or persons for doing the
acts denounced; and"

"(2) That the libel does not show that the vessel was armed or fitted out with the intention that she
should be employed in the service of a foreign prince or state, or of any colony, district, or people,
recognized or known to the United States as a body politic."

"The first objection raised by these exceptions is easily disposed of by the language of the supreme
court in the case of The Palmyra, 12 Wheat. 1, where, after elaborate argument, it is said:"

" Many cases exist when the forfeiture for acts done attaches solely in rem, and there is no
accompanying penalty in personam; many cases exist where there is both a forfeiture in rem and a
personal penalty; but in neither class of cases has it ever been decided that the prosecutions were
dependent upon each other. But the practice has been, and so this Court understands the law to be,
that the proceeding in rem stands independent and wholly unaffected by any criminal proceeding in
personam. . . . In the judgment of this Court, no personal conviction of the offender is necessary to
enforce a forfeiture in rem in cases of this nature. "

Page 166 U. S. 72

"The other question raised by the exceptions is more difficult, and requires a construction of the clause
of the section 5283, 'with intent that such vessel should be employed in the service of any foreign prince
or state, or of any colony, district, or people,' and more particularly the significance of the words 'colony,
district, or people,' and a determination whether the requirements of the law are satisfied by the
allegations of the libel that the vessel was intended to be employed 'in the service of certain insurgents
or persons in the Island of Cuba,' and whether the statute admits a construction which would make a
vessel liable to forfeiture when fitted out for the intended employment of any one or more persons not
recognized as a political power by the executive of our nation."

"The section under which this libel has been filed was originally the third section of the Act of June 5,
1794 (1 Stat. p. 281, c. 50), and the language at that time only contained the provision that the vessel
should be fitted out with intent that said vessel should be employed in the service of any foreign prince
or state to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or
state with whom the United States might be at peace."

"While that was the language of the act, the question came before the Supreme Court in the case
of Gelston v. Hoyt, 3 Wheat. 328, and in speaking of a plea considered necessary for a defense to a
suit for damages for a seizure under this statute, it was held that such plea was bad"

"because it does not aver the governments of Petion and Christophe are foreign states which have
been duly recognized as such by the government of the United States."

"In this case, there was no distinction made between the party in whose service the vessel was to be
employed and the one against whom hostilities were intended, and the language of the court would
fully justify the conclusion they should both have been recognized, either as princes or states."

"Subsequently, as is stated by Mr. Wharton in his work on International Law, upon the outbreak of war
between the South American colonies and Spain, upon a special message

Page 166 U. S. 73

of the President to Congress upon the subject, the words 'or of any colony, district, or people' were
added to the description of both parties contemplated -- both that one into whose employment the
vessel was to enter and that one against whom the hostilities were contemplated."

"Has the addition of these words changed the character of the party intending to employ such vessel
from that of a political power duly recognized as such, as is declared by the Court in Gelston v. Hoyt, to
that of a collection of individuals without any recognized political position? This question has been
before the courts frequently, and several times been examined and commented upon, but in no case
which I have been able to find has it been so presented, unconnected with questions of fact, that there
has been a ruling upon it so that it can be considered as final and conclusive."

"Beyond question, the courts are bound by the actions of the political branch of the government in the
recognition of the political character and relations of foreign nations, and of the conditions of peace or
war."

"The act of 1794, as well as its modification, that act of 1818, used the same language in describing
the power or party in whose behalf or into whose service the vessel was intended to enter as was used
in describing the political power against which it is intended that hostilities should be committed, and,
as far as the language itself goes, it is impossible to say that, in using the words in one clause of the
sentence, the political character and power was intended, while in another clause of the same sentence
words used in exactly the same connection, and with apparently the same force and meaning, were
intended to represent, not the political power, but the individuals of a certain colony, district, or people."
"It is contended that, although the original act of 1794 required the construction given it in Gelston v.
Hoyt, that each party should be one duly recognized by the United States, yet the modification of 1818
so changed it that it should be held to apply to any persons, regardless of their political character, for
whose service a vessel might be intended."

"It is understood that this modification was brought about

Page 166 U. S. 74

by the special message of President Madison of December 26, 1816. The question presented by this
message is clearly set forth in the language used. He says:"

"It is found that the existing laws have not the efficacy necessary to prevent violations of the United
States as a nation at peace towards belligerent parties, and other unlawful acts on the high seas by
armed vessels equipped within the waters of the United States."

"In further explanation of the condition of affairs which called for this modification of this statute may be
considered the letter of Mr. Monroe, Secretary of State, to Mr. Forsythe, January 10, 1817, in which he
speaks of vessels going out as merchant vessels, and hoisting the flag of some of the belligerents, and
cruising under it; of other vessels, armed and equipped in our ports, hoisting such flags after getting
out to sea, and of vessels having taken on board citizens of the United States, who, upon the arrival at
neutral points, have assumed the character of officers and soldiers in the service of some of the parties
in the contest then prevailing. All of this correspondence shows that the effort at that time was to enforce
neutrality between recognized and belligerent parties. That the parties then in contest were recognized
as belligerents, and a neutrality was sought to be preserved, is clearly shown by the first annual
message of President Monroe, in 1817. He says:"

"Through every stage of the conflict, the United States have maintained an impartial neutrality, giving
aid to neither of the parties in men, money, ships, or munitions of war. They have regarded the contest
not in the light of an ordinary insurrection or rebellion, but as a civil war between parties nearly equal,
having, as to neutral powers, equal rights. Our ports have been opened to both, and any article . . . that
either was permitted to take has been equally free to the other."

"It is considered that this shows what was in contemplation at the time of the enactment of the law of
1818, and that what was intended was to prevent the fitting out of vessels to be employed in the service
of a colony, district, or people which had been recognized as belligerents, but which had not been
recognized as an independent state, or which was not represented in the political world by a prince. "

Page 166 U. S. 75

"There appears to be nothing in the remedy demanded at that time, or in the language used, to show
that the words so added were intended to represent or be construed as referring to the individual people
of any colony, district, or people, or any number of them, however designated, except as in their
collective representative political capacity, any more than there is to show that the term 'state' in the
original was intended to refer to the individual people of the state."

"The language of the Foreign Enlistment Act of Great Britain, 59 Geo. III. c. 69, 7, leaves no question
as to the intention of Parliament in that legislation, as it added to the words of our statute the words"

"or part of any province or people or of any person exercising or assuming to exercise any powers of
government in or over any foreign state, colony, province or parts of any province or people."

"In order to give the statute under which this libel is brought the force contended for by the libelant, it is
necessary to eliminate from the provision that makes it necessary to declare how the vessel is to be
employed the entire clause 'in the service of any foreign prince or state, or of any colony, district, or
people,' or to read into it the language found in the act of Great Britain or its equivalent. That it was the
general understanding at the time of the passage of the original act that it was considered to apply only
to duly recognized nations is shown by the fact that, in the case of United States v. Guinet, 2 Dall. 321,
under this same section (the first case brought under it), the indictment alleged fully in terms that both
the State of the Republic of France, in whose service the vessel was to be employed, and the King of
Great Britain, were a state and a prince with whom the United States was at peace."

"In the case of United States v. Quincy, 6 Pet. 445, the Supreme Court says that the word 'people' was
used in this statute as simply descriptive of the power in whose service the vessel was intended to be
employed, and is one of the denominations applied by the acts of Congress to a foreign power."

"In the case of The Meteor, Fed.Cas. No. 9,498, where the original libel alleged that the vessel was
fitted

Page 166 U. S. 76

out with the intent that she should be employed in the service of certain persons to commit hostilities
against the government of Spain, it was considered necessary to amend it by alleging that she was
intended to be employed by the government of Chili, and in that case there was presented a certificate
of the Secretary of State, under seal, of the fact of the war existing between Spain and Chili, and that
they were both nations with whom the United States were at peace."

"In addition to the declaration of the Supreme Court in the cases of Gelston v. Hoyt and United States
v. Quincy, this question has been incidentally under examination in several cases in the lower courts.
In the case of The Carondelet, 37 F. 800, Judge Brown says:"

"Section 5283 is designed in general to secure our neutrality between foreign belligerent powers. But
there can be no obligation of neutrality except towards some recognized state or power, de jure or de
facto. Neutrality presupposes two belligerents, at least, and, as respects any recognition of belligerency
-- i.e., of belligerent rights -- the judiciary must follow the executive. To fall within the statute, the vessel
must be intended to be employed in the service of one foreign prince, state, colony, district, or people
to cruise or commit hostilities against the subjects, citizens, or property of another with which the United
States are at peace. The United States can hardly be said to be at peace, in the sense of the statute,
with a faction which they are unwilling to recognize as a government, nor could the cruising or
committing of hostilities against such a mere faction well be said to be committing hostilities against the
subjects, citizens, or property of a district or people within the meaning of the statute. So, on the other
hand, a vessel, in entering the service of the opposite faction of Hippolyte, could hardly be said to enter
the service of a foreign prince or state, or of a colony, district, or people, unless our government had
recognized Hippolyte's faction, as at least constituting a belligerent, which it does not appear to have
done."

"In the case of The Conserva, 38 F. 481, a case in which it was alleged the vessel was to be used in a
contest between Legitime and Hippolyte, Judge Benedict says:"

"The

Page 166 U. S. 77

libel in this case charges certain facts to have been done in connection with the vessel with the intention
that the vessel be employed in the service of certain rebels in a state of insurrection against the
organized and recognized government of Hayti, to cruise and commit hostilities against the subjects,
citizens, or property of the Republic of Hayti, with whom the United States are at peace. A violation of
the neutrality which the United States is obliged to maintain between the rebels mentioned and the
government of the Republic of Hayti is the gravamen of the charge. But the evidence fails to show a
state of facts from which the court concluded that the United States was ever under any obligation of
neutrality to the rebels mentioned, or is now under any obligation of neutrality to the government of the
Republic of Hayti."

"In the case of United States v. Trumbull, 48 F. 99, Judge Ross carefully reviews the different
authorities, examines the question, and clearly indicates how he would have decided the question had
it been necessary for the purposes of deciding the case before. He says:"

"Does section 5283 of the Revised Statutes apply to any people whom it is optional with the United
States to treat as pirates? That section is found in the chapter headed 'Neutrality,' and it was carried
into the Revised Statutes, and was originally enacted in furtherance of the obligations of the nation as
a neutral. The very idea of neutrality imports that the neutral will treat each contending party alike, and
it will accord no right or privilege to one that it withholds from the other, and will withhold none from one
that it accords to the other."

"In speaking of the case of United States v. Quincy, in which it was said that the word 'people' 'was one
of the denominations applied by the act of Congress to a foreign power,' he says:"

"This can hardly mean and association of people in no way recognized by the United States or by the
government against which they are rebelling, whose rebellion has not attained the dignity of war, and
who may, at the option of the United States, be treated by them as pirates."

"In the case of United States v. The Itata, 56 F. 505, on appeal before the circuit court of appeals, the
question

Page 166 U. S. 78

was fully and carefully considered in an elaborate opinion, and although not found necessary to decide
the question in this case, as the case was disposed of upon other grounds, it is considered to be
apparent how the question would have been decided had it been necessary. The force of the word
'people,' as used in this statute, is carefully examined, as well as all other questions, and it is considered
that the force of the conclusion which must necessarily result from such investigations cannot be
avoided."

"In the case of United States v. Hart, 74 F. 724, Judge Brown expresses his view of this section by
saying:"

"Section 5283 deals with armed cruisers, designed to commit hostilities in favor of one foreign power
as against another foreign power with whom we are at peace."

"The same language is used by the court in the case of Wiborg v. United States, 163 U. S. 632, but it
is contended in behalf of the libelant that this language was modified by the subsequent declaration,
made in the same case, that the operation of this statute is not necessarily dependent on the existence
of such state of belligerency. In using the latter language, it would seem that the court had the entire
statute under contemplation, and more particularly section 5286, Rev.Stat. (the sixth section of the
original act), which plainly does not depend upon a state of belligerency or neutrality. This was the
section then under consideration, as the immediate context and following sentence show, and was the
section upon which the suit was based, and it cannot be considered that this language was intended to
apply to another section, the consideration of which was in no way called in question."

"With this understanding of the language in this case, in that case, every judicial decision, remark, or
ruling where the question has been under consideration or examination appears to be in favor of the
position taken by the claimants in the exceptions."

"In the case of The Mary N. Hogan, 18 F. 529, and in the cases of the intended charge of that vessel,
boxes of arms and ammunition (20 F. 50), it does not appear that this question was raised by the
claimant or considered by

Page 166 U. S. 79

the learned judge, and his language in the subsequent case of The Carondelet, where it was raised
and discussed, may be accepted as presumptive proof of what his decision would have been, had it
been so considered."

"The same is true of the case of The City of Mexico, 28 F. 148, decided by me in this Court. In that
case, the defense was upon entirely different grounds, and the force of the portion of the statute
contended for, the necessity that there should be an intent not only that the vessel should intend to
commit hostilities, but that for such purposes she should be employed in the service of some political
power, was entirely lost sight of and eliminated from the consideration of the case."
"The only expression authoritatively given which I have been able to find opposed to the view of the
claimant in his exceptions is that of a portion of the letter of the honorable Attorney General to the
Secretary of State, of December 16, 1869, 13 Op. Att'y Gen. 177, and cited in the case of Wiborg v.
United States, I do not consider that I should be doing myself justice to pass that by unnoticed, as it
has raised more questions in my mind and called for and compelled more thought and consideration
than anything else connected with the case; but I feel compelled to reach a different conclusion than is
there expressed."

"The general purpose and intent of that letter was to declare that the insurrection in Cuba was not a
fitting opportunity to enforce the provisions of this law, inasmuch as we owed no duty to such insurgents
to protect them from hostilities, or rather that any contest between Spain and such insurgents could not
be considered as hostilities, but incidentally it was stated that a condition of belligerency was not
necessary for the operation of this statute."

"It could not be considered that we owed such insurgents no such duty because we were not at peace
with them, but because we had never recognized them as a colony, district, or people."

"The force and effect of the letter was that the Cuban insurgents had not been recognized as a colony,
district, or

Page 166 U. S. 80

people, and therefore this section did not apply. If they had not been then so recognized, or were not
entitled to be so recognized, how can they now be so recognized or described as to come within terms
of the statute in question?"

"It is considered that the argument used in such letter to show that the statute should be held applicable
to cases where there was no condition of belligerency, and but one political power recognized, would
have been fully as applicable under the old law, when the case of Gelston v. Hoyt decided to the
contrary."

"The fact that a vessel was fitted out to be employed in the service of a prince would not necessarily
imply that such prince was a political power recognized by the United States, any more than would the
terms a 'colony, district, or people,' under the act of 1818. But the supreme court clearly held in that
case that it must be alleged that such prince or state has been recognized as such by the United States.
The same argument used therein would call for the application of this statute for the forfeiture of any
vessel fitted out to be employed by any person, individual, corporation, or firm for the purpose of
committing hostilities against a state at peace, which would plainly not come within the provisions of
the statute, however much it might be considered international policy or proper national conduct."

"It is impossible, in my view of the construction required by the language used, to properly apply the
term 'a people,' used in the connection in which it is found, to any persons, few in number and occupying
a small territory, with no recognized political organization, although they might procure the fitting out
and arming of a vessel. I fail to find any ground for giving this statute -- a criminal one, as it is -- any but
its ordinary application. The question presented is clear and distinct: are 'certain insurgents or persons
in the Island of Cuba' properly described by either of the terms 'a colony,' 'a district,' or 'a people,' and,
if so, which? The inconveniences which might arise from the political branch of our government
recognizing such insurgents as a colony, district, or people having political existence, and as
belligerents, cannot be considered in determining whether they are entitled to such description. "

Page 166 U. S. 81

"This statute is a criminal and penal one, and is not to be enlarged beyond what the language clearly
expresses as being intended. It is not the privilege of courts to construe such statutes according to the
emergency of the occasion or according to temporary questions of policy, but according to the principles
considered to have been established by a line of judicial decisions."

"It is contended that if the principles embodied in the exceptions are declared to be the law, there can
be no law for the prevention of the fitting out of armed and hostile vessels to stir up insurrections and
commit hostilities against nations with which we are at peace, and that such conclusion would make
the parties engaged in any such expedition liable to prosecution as pirates."

"To the first of these points it is considered that section 5286 is, as has been constantly held, intended
to prevent any such expeditions, regardless of the character of the parties in whose behalf they were
organized, the only distinction being that in that case it is necessary to bring a criminal suit and prove
overt acts; while under this portion of this section, the intent is the gravamen of the charge and the
prosecution is against the vessel, regardless of the persons engaged in the fitting out or the ignorance
or innocence of the owners."

"This is not a case that can be or should be determined upon questions of public policy, and whether
any parties subject themselves to prosecution for piracy or not should have no weight in its
consideration. If they should be so subject, they would have the benefit of the necessity of proving
piratical acts, rather than intentions."

"It is certainly considered to be true that any such parties would be considered as pirates by Spain, and
would be treated as such if found in any acts of hostility, regardless of any recognition this nation might
give them by considering them as having any political character as a people."

"Without attempting further argument, but regretting that the pressing duties of a very busy term of jury
trials have prevented a fuller and more complete expression of my views, it is my conclusion that the
line of judicial decisions demands

Page 166 U. S. 82

that a construction should be put upon the section in question which would hold that it was the intention
of Congress in such enactment to prevent recognized political powers from having vessels prepared
for their service in the United States, but that it was not the intention to extend such prohibition to
vessels fitted out to be employed by individuals or private parties, however they might be designated,
for piratical or other hostilities, where no protection could be obtained by a commission from a
recognized government. In such case, they would be held liable under the section which provides for
the fitting out of a military expedition, or, if they were guilty of any piratical acts upon the high seas, they
would become liable under the laws for the punishment of such acts. It is considered that, at the time
of the amendment of 1818, this construction had been declared, and the language of the amendment
was in no way intended to change such construction, but was only intended to apply to the new
designation of political powers, the existence of which had been recognized as belligerents, if not as
independents, and who were entitled to the rights of neutrals; that the libel herein does not state such
a case as is contemplated by the statute, in that it does not allege that said vessel had been fitted out
with intent that she be employed in the service of any foreign prince or state, or of any colony, district,
or people recognized as such by the political power of the United States, and, unless it can be so
amended, should be dismissed, and it is so ordered."

"Since writing the foregoing, the libel herein has been amended by inserting, in place of 'by certain
insurgents or persons in the Island of Cuba,' the words 'in the service of a certain people, to-wit, certain
people then engaged in armed resistance to the government of the King of Spain in the Island of Cuba;'
but it is considered that the objection to the libel in sustaining the exceptions has not been overcome,
but that, although the language has been somewhat changed, the substance has not been amended
in the material part, inasmuch as it appears clearly that the word 'people' is used in an individual and
personal sense, and not as an organized and

Page 166 U. S. 83

recognized political power in any way corresponding to a state, prince, colony, or district, and can in no
way change my conclusion heretofore expressed, and the libel must be dismissed."

"SEC. 5283. Every person who, within the limits of the United States, fits out and arms, or attempts to
fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing,
fitting out or arming, of any vessel with intent that such vessel shall be employed in the service of any
foreign prince or state, or of any colony, district or people, to cruise or commit hostilities against the
subjects, citizens or property of any foreign prince or state, or of any colony, district or people, with
whom the United States are at peace, or who issues or delivers a commission within the territory or
jurisdiction of the United States for any vessel, to the intent that she may be so employed, shall be
deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and
imprisoned not more than three years. And every such vessel, her tackle, apparel and furniture,
together with all materials, arms, ammunition and stores, which may have been procured for the
building and equipment thereof, shall be forfeited; one-half to the use of the informer and the other half
to the use of the United States."