Fitzsimmons upon a question of prize is a mere fiction, and is never Newport Ins, applied to any question but that of the title to the thing

V.

Co.

* 189

itself.

2d. How does the principle stand upon precedents of other nations.

Upon a question of general law, or the law of nations, we are not to look to the practice of one nation only. We are as much bound by the precedents of France, as we are by those of England since our revolution.

In France, we are told by Emerigon, the sentence of a foreign prize court is not conclusive upon collateral cases. It only protects the title to the property acquired under it.

In England, a system has been raised; but like an inverted cone, it rests only on a single point. The case of Hughes v. Cornelius, reported in 2 Shower, 232. T. Raym. 473. and Skin. 59. is the only basis upon which the fabric is erected. This case only decides, what we admit, that a foreign sentence is conclusive as to the title in the thing itself. This is the only reported case, prior to the revolution; and thus the question remained until the case of Bernardi v. Motteux, Doug. 575. which was decided in the year 1781. The point of that decision was, that a sentence of condemnation by a foreign court of admiralty was not conclusive evidence of a breach of the warranty of neutrality, if the sentence does not appear to have proceeded upon that ground. *Park, p. 365. has given the result of all the cases, and deduces this general doctrine.

1. "That wherever the ground of the sentence is manifest, and it appears to have proceeded expressly upon the point in issue between the parties;" or

2.." Wherever the sentence is general, and no special ground is stated, there it shall be conclusive and binding, and the court here will not take upon themselves, in a collateral way, to rview the proceedings of a forum having competent jurisdiction of the subject

matter.

3. "But if the sentence be so ambiguous and doubtful that it is difficult to say on what ground the decision turned;" or,

4. "If there be colour to suppose that the court

V.

abroad proceeded upon matter not relevant to the mat- Fitzsimmons ter in issue, there evidence will be allowed in order to Newport Ins. explain." And,

5. "If the sentence, upon the face of it, be manifestly against law and justice, or be contradictory, the insured shall not be deprived of his indemnity; because, to use the words of Mr. Justice Buller, any detention by particular ordinances or decrees, which contravene, or do not form a part of the law of nations, is a risk within a policy of insurance."

The counsel for the plaintiff commented at large upon the cases of Salouci v. Johnson, Park, 362. Lothian v. Henderson, 3 Bos. & Pull. 516. Geyer v. Aguilar, 7 T. R. 681. Garrels v. Kensington, 8 T. R. 230. Calvert v. Bovill, 7 T. R. 526. Kindersly v. Chase, in the cockpit, decided by Sir W. Grant, Park, 363. 5th ed. Mayne v. Walter, Park, 363. Pollard v. Bell, 8 T. R. 134. Bird v. Appleton, 8 T. R. 563. Price v. Bell, 1 East, 663. Bearing v. Christie, 5 East, 398. Baring v. Clagett, 3 Bos. & Pull. 212. and 8 T. R. 192. Christie v. Secretan, from all which they drew the conclusion that according to English precedents, which, however, they denied to be authorities in this court, except the *case of Hughes v. Cornelius, a foreign sentence of condemnation is not conclusive evidence of the want of neutral character, unless it proceeds upon a ground warranted by the law of nations, or by treaties between the countries of the captor and the captured.

3d. As to domestic precedents, they are not decisive. In New-York the law is finally settled against the conclusiveness. 1 N. Y. Cases in Error, 7. 2 N. Y. Cases in Error, 217. 3 N. Y. T. R. 213. 240. But in the supreme court of Pennsylvania the question is still sub judice, as it is in most of the other states.

II. The cause expressly assigned for condemnation is not a lawful cause, either under the law of nations, or the treaty between this country and Great Britain.

The capture itself was a total loss, and gave the right to abandon. At the time of abandonment there was no restitution.

The sentence is not a decree of enemy property, nor generally as lawful prize, but it is a condemnation on

Co.

*190

V.

Fitzsimmons special grounds. 1. That she was cleared out for CaNewport Ins. diz, a port actually blockaded; 2. That the master Co. persisted in his intention of entering that port, after warning from the blockading force not to do so, in direct breach and violation of the blockade.

*191

It is not stated that the blockade was known at the time of her sailing, nor that any attempt was made to enter Cadiz after notice. The special verdict finds that the blockade did not exist at the time of her sailing; and that after being verbally notified of the blockade, the vessel was at no time at liberty, so that she could have attempted to enter the port. That although the register was endorsed, yet the master had no knowledge of it until after his arrival at Gibraltar.

The offence charged is persisting in an intention to do what he had no power to do. This intention is inferred from the conversation between the master and the admiral, which is detailed in the special verdict, and which, on the part of the latter, was insidious, and calculated to entrap. From the effect of such conversations it was the duty of the court to protect the master. 1 Rob. 7. The Mercurius. The answer of the master was honest, simple and proper; "that in case he got no new orders, he should steer by his old ones." This was no more than his duty. Those new orders, if given by the admiral, would have been obeyed, and would have justified the master in his deviation.

The

But even an intention to violate a blockade, unless followed by some act, such as sailing with that intent, &c. is no cause of condemnation under the law of nations. Maley v. Shattuck, ante, vol. 3. p. 488. Betsey, 1 Rob. 280. The Spes and Irene, 5 Rob. 76. The Shepherdess, 5 Rob. 235. Vattel, b. 3. s. 117. The Vrow Judith, 1 Rob. 128. The Columbia, 1 Rob. 130. The Vrow Johanna, 2 Rob. 91. The Neptunus, 2 Rob. 92. 95, 96. The Appollo, 5 Rob. 256. The Columbia, 1 N. Y. Cases in Error, 7. 1 Rob. 130. 3 N. Y. T. R. 226.

If the intention be not a cause of condemnation under the law of nations, much less is it under the British treaty, article 18. (Laws U. S. vol. 2. p. 484.) the words of which are, "And whereas it frequently happens that vessels sail for a port or place belonging to

V.

Co.

an enemy, without knowing that the same is either be Fitzsimmons sieged, blockaded or invested, it is agreed that every Newport Ins vessel so circumstanced may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper.

If condemned without an attempt, the sentence of condemnation is not warranted by the treaty, and, therefore, does not falsify the warranty of neutrality. 8 T. R. 434. Pollard v. Bell. 8 T. R. 562. Bird v. Appleton. 1 East, 663. Price v. Bell. 5 East, 398. Baring v. Christie. 1 N. Y. Cases in Error, 7. 3 N. Y. T. R.

226.

Argument for the defendants in error.

This court can only decide what the law is, not what it ought to be.

*We contend for three points.

1. That the vessel was justly condemned for attempting to break the blockade.

2. That the sentence is conclusive evidence of the fact.

3. That the condemnation was the consequence of the improper act of the master, for which the underwriters are not liable.

1. The first point is not denied, if the fact be that there was an attempt to break the blockade.(a)

A verbal notice to the master was as good as if it had been in writing, because he could himself see that a blockade de facto existed.

An attempt is a conclusion from a variety of facts and circumstances. 1 Bos. & Pull. 185. A persisting in the intention after warning; a public open avowal of that intention when he had the offer of his liberty to go to any port but Cadiz, amounted to an attempt to break the blockade. The British squadron could not have suffered him to go off with such decla

(a) Rawle offered to read the depositions and evidence contained in the proceedings of the viceadmiralty, which were referred to by the special verdict, and of which a copy was thereto annexed.

But the court stopped him, saying that the proceedings in the viceadmiralty court were only matter of evidence to the jury, into which this court could not look.

* 192

V.

Co.

Fitzsimmons rations. He had no right to demand orders from the Newport Ins. British admiral, nor had the latter a right to give them. He could not direct him to what port to go. The master was bound to act according to his best discretion in such a case. The only orders which the British commander could give were not to go to Cadiz.

193

It was a continuance (after notice) of the original attempt to enter the port, which was made before notice. 1 Rob. 123. 5 Rob. 256.

2. The sentence is conclusive evidence against the plaintiff.

*This point is not now to be decided on principles of policy or comity, but upon principles of law long established and settled. It has been the fashion to consider this as a modern principle, fabricated upon national motives of interest since the revolution.

But it rests on principles of a much earlier date. It is found in existence at earlier periods, when the commerce of England was in its infancy. It is the application only which is modern.

In the "case of copyhold leases," 4 Co. 29. a. it was decided, that the sentence of the ecclesiastical court dissolving the marriage was conclusive evidence that the first marriage was void, and that the issue of the second marriage was legitimate. So in Kenn's Case, 7 Co. 42, 43. it was holden, “that the sentence" of the ecclesiastical judge "should conclude as long as it remained in force." So in Buller's N. P. 244. it is said, "In an action upon a policy of insurance, with a warranty that the ship was Swedish, the sentence of a French admiralty court condemning the ship as English property, was holden conclusive evidence. This case is taken from The Theory of Evidence, published in 1761, and, consequently, was before our revolution. It seems to be the first case noticed in the books, where the principle was applied to a case of insurance. The case of Fernandes v. De Costa, Park, 177, 178. was in the 4th year of George III. long before our revolution. In that case the sentence of the French prize court was holden to be conclusive evidence in favour of the underwriter. The counsel cited also Carth. 225. Jones v. Bow, where the sentence of the spiritual court was holden to be conclusive. Also the Duchess of Kingston's Case, 11 State Trials, and the case of Moses v. MPherlan, 2 Burr. 1005. and Walker v. Witter,