and twenty hogsheads of ship-bread, in order the execution of the prohibitions and penalti of the act in such case made and provided. An the said David Gelston and Peter A. Schenc further say that the taking possession of, an detaining of the said ship or vessel, with b tackle, apparel and furniture, and the said fiv hundred tons of stone ballast, one hundre hogsheads of water, one hundred and thir barrels of salted provisions, and twenty hog heads of ship-bread, by the said David Gelsto and Peter A. Schenck, on the tenth day of Jul one thousand *eight hundred and ten, [*26 as aforesaid, is the same seizing, taking, carr sel, with her tackle, apparel and furniture, an the said five hundred tons of stone ballast, o hundred hogsheads of water, one hundred a thirty barrels of salted provisions, and twen hogsheads of ship-bread mentioned in the se plaintiff, and not other or different. And th they, the said David Gelston and Peter. Schenck, are ready to verify; wherefore the pray judgment if the said Goold Hoyt ought have or maintain his aforesaid action there against them, &c. And to which the said foregoing pleas, w subjoined the following notice: eral description of goods and chattels, mentioned in the first count in the said declaration of the said plaintiff, and that the taking and carrying away thereof, mentioned in the said first count in the said declaration of the said plaintiff, is the same taking and carrying away thereof mentioned in the said second, third and fifth counts in the said declaration of the said plaintiff, and not other or different; and that the several trespasses mentioned in the first, second, third, fourth and fifth counts in the said declaration of the said plaintiff, are the same trespass, and not other or different. And the said David Gelston and Peter A. Schenck further say, that be263*] fore *the tenth day of July, in the yearing away, and detaining of the said ship or ve of our Lord one thousand eight hundred and ten, to wit, on the first day of July, in the year last aforesaid, at the port of New York, in the district of New York, to wit, at the city of New York, in the county of New York, and at the first ward of the said city, the said ship or ves-eral counts in the said declaration of the sa sel, called the American Eagle, with her tackle, apparel and furniture, was attempted to be fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of shipbread, were then and there procured for the equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the said ship or vessel, called the American Eagle, should be employed in the service of some foreign state, to commit hostilities upon the subjects of another foreign state, with which the United States were then at peace, contrary to the form of the statute in such case made and provided. And the President of the said United States, to wit, James Madison, who was then President of the said United States, by virtue of the power and authority vested in him by the constitution and laws of the said United States, did af terwards, to wit, on the sixth day of July, in the year last aforesaid, at Washington, to wit, at the city of New York, in the county of New | York, and at the ward aforesaid, authorize, empower, instruct, and direct the said David Gelston and Peter A. Schenck to take possession of, and detain the said ship or vessel, called the American Eagle, with her tackle, apparel and 264*] *furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, in order to the execution of the prohibitions and penalties of the act in such case made and provided. And the said David Gelston and Peter A. Schenck further say, that they did afterwards, to wit, on the tenth day of July, in the year last aforesaid, at the port of New York, in the district of New York, to wit, at the city of New York, in the county of New York, and at the ward aforesaid, by virtue of the said power and authority, and in pursuance of the said in structions and directions so given as aforesaid to them, the said David Gelston and Peter A. Schenck, by the said President of the said United, States, and not otherwise, take possession of, and detain the said ship or vessel, called the American Eagle, with her tackle, apparel and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, SIR: Please to take notice that the defen ants, at the trial of the above cause, will ins npon, and give in evidence, under the gener issue above pleaded, that the ship or vessel ca ed the American Eagle, with her tackle, a parel and furniture, before the tenth day July, in the year of our Lord one thousa eight hundred and ten, to wit, on the first d of July, in the year last aforesaid, at the p of New York, in the district of New Yor to wit, at the city of New York, in the coun of New York, and at the first ward of t said city, was attempted to be fitted e and armed, and was fitted out and arme and that the said five hundred tons of sto ballast, one hundred hogsheads of water, a hundred and thirty barrels of salted provision and twenty hogsheads of ship-bread, and we procured for the equipment of the said vess and were then and there on board of the sa vessel, as a part of her said equipment, [*26 with intent that the said ship or vessel, call the American Eagle, should be employed in t service of a foreign prince or state, to wit, that part of the Island of St. Domingo whi was then under the government of Petion, cruise and commit hostilities upon the subjec citizens, and property of another foreign prin or state with which the United States were the at peace, to wit, of that part of the Island of $ Domingo which was then under the gover ment of Christophe, contrary to the form the statute in such case made and provide And the said defendants will also insist upo and give in evidence under the said plea, th the said ship or vessel, with her tackle, appar and furniture, on the day and year last afor said, at the port of New York, in the distri of New York, to wit, at the city of New Yor in the county of New York, and at the wat aforesaid, was attempted to be fitted out an armed, and was fitted out and armed, and th the said five hundred tons of stone ballast, on hundred hogsheads of water, one hundred an ke, &c. stas apy of the case. Now he si to hold pow Statute P Bead SAN Ang to the twent the Pse cose made and proves the ma por: led, and by v 11- power to a city rested in them by storsand issue so goest between the wand pat titutie and laws of the United States Texas ator sand owme on to be tried by # FOLY 11 day of March, 1818. the sa Goold Hoyt, to the said first of the city and county of New York forsand yed issue, and to the second and third for that purpose empaneled that is to st James M Cready, Richard Lolies, John Rod the said Goold Hoyt demurred as fol Walter Sawyer, Edward Wade, William Prior 1:1 as to the plea of the said David Gelston gers, Asher Marx, Benjamin Gomes, Samuel Per A Schenck, by them first above Milbanks, James E. Jennings, George Riker , and whereof they have put themselves and Jacob Latting, good and lawful men of the which day came there as well the said Goold the country, the said Goold Hoyt doth city and county of New York, aforesaid, at And as to the pleas by the said David Gelston Hoyt as the said David Gelston and Peter A 68* and *Peter A. Schenck, by them second. Schenck, by their respective attorneys af thirdly above pleaded in bar, the said said, and the jurors of the jury, empar Hoyt saith, that the said second and try the said issue, being called, al id pleas of the said David Gelston and Peter came, and were then and there, in d Schenck, or either of them, and the mat- chosen and sworn to try the sa therein contained, in manner and form as upon the trial of that isstie the e same are above pleaded and set forth, are in the law for the said Goold fficient, in law, to bar and preclude him, tain and prove the said issue or aid Goold Hoyt, from having and main- in evidence, that at the time ning his action aforesaid, against the said the said ship American E vid Gelston and Peter A. Schenck; and that David Gelston and Peter A the said Goold Hoyt, is not bound by the in the actual, full, and pe of the land to answer the same, and this the said Goold Hoyt, and is ready to verify; wherefore, for want of a tal of the said vessel in fcient plea in this behalf, the said Goold the United States, for yt prays judgment, and his damages by him York, it was decreed th Stained, trespasses, te And the said henck, thereup on occasio And the said D ack say, that adly and thirdly ab were sufficient to entitle the said plaintiff to a verdict, and that he ought not to be nonsuited; whereupon the said counsel for the defendants did, then and there, on the behalf of the said defendants, except to the aforesaid opinion of the said justice, and insisted that the said sever were not sufficient to entitle the said plaintiff to a verdict, and that he ought to be nonsuited. After the said motion for a nonsuit had been refused, and the opinion of the said justice had been excepted to as aforesaid, the counsel of the said *Goold Hoyt did, in the pro- {*273 gress of the trial, give in evidence, on the part of the said Goold Hoyt, that he purchased the said ship of James Gillespie, who had purchased her of John R. Livingston and Isaac Clason, the owners thereof; and that in pursuance of such purchase by the plaintiff, the said James Gillespie had delivered full and complete possession of the said ship, her tackle, &c., to the said plaintiff, before the taking thereof by the defendants. among other things, alleged, that the said ship had been fitted out and armed, and attempted to be fitted out and armed, and equipped and furnished, with intent to be employed in the service of Petion against Christophe, and in the service of that part of the Island of St. Domingo which was then under the government of Pe-al matters, so produced and given in evidence, tion, against that part of the said Island of St. Domingo which was then under the government of Christophe, contrary to the statute in such case made and provided; and that the said Goold Hoyt had filed an answer to the said libel, and a claim to the said vessel, in which the said Goold Hoyt had expressly denied the 271*] truth of the allegations in the said libel; and it also appeared by the said proceedings, that in the month of April, one thousand eight hundred and eleven, an application had been made to the said District Court, by the said Goold Hoyt, to have the said ship appraised, and to have her delivered up to him on giving security for her appraised value; and it also appeared, by the said proceedings, that appraisers had been appointed by the said court, and that they had appraised the said ship, her tackle, &c., at thirty-five thousand dollars, and that the said appraisement had been filed, and had not been excepted to; and that the sureties of fered by the said Goold Hoyt, for the appraised value of the said ship, had been accepted by the said court; and it also appeared, by the said proceedings, that the said cause had been tried before the said District Court, and that the said libel had been dismissed, and that the said ship had been decreed to be restored to the said claim-year of our Lord one thousand eight hundred ant, and that a certificate of reasonable cause for the seizure of the said vessel had been denied. And the counsel of the said Goold Hoyt, to maintain and prove the said issue, did give in evidence that the value of the said ship, her tackle, apparel and furniture, at the time of her seizure as aforesaid, was one hundred thou- | sand dollars, and did also give in evidence, that the said Peter A. Schenck seized and took possion of the said ship by the written directions of the said David Gelston; but no other proof was offered by the said plaintiff, at that time, of any right or title in the said plaintiff to the said vessel; and here the said plaintiff rested his cause. 272*] *Whereupon the counsel for the defendants did, then and there, insist, before the said justice, on the behalf of the said defend ants, that the said several matters so produced and given in evidence on the part of the plaintiff as aforesaid, were insufficient, and ought not to be admitted or allowed as sufficient evidence to entitle the said plaintiff to a verdict; and the said counsel for the defendants did, then and there, pray the said justice to pronounce the said matters, so produced and given in evidence for the said plaintiff, to be insufficient to entitle the said plaintiff to a verdict in the said cause, and to nonsuit the said plaintiff; but to this the counsel learned in the law, of the said plaintiff, objected, and did then and there in sist before the said justice, that the same were sufficient, and ought to be admitted and allowed to be sufficient to entitle the said plaintiff to a verdict; and the said justice did then and there declare and deliver his opinion to the jury aforesaid, that the said several matters, so produced and given in evidence on the part of the said plaintiff, And the said motion for a nonsuit having been refused, and the opinion of the said jus tice excepted to as aforesaid, the said counsel for the said defendants did, thereupon, state to the said jury the nature and circumstances of the defendants' defense, and did then and there offer to prove and give in evidence, by way of defense, or in mitigation or diminution of damages, that the said ship or vessel, called the American Eagle, with her tackle, apparel and furniture, before the tenth day of July, in the and ten, to wit, on the first day of July, in the year last aforesaid, at the port of New York, in the southern district of New York, to wit, at the city of New York, in the county of New York, and at the first ward of the said city, was attempted to be fitted out and armed, and was fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, were procured for the equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the *said ship or vessel, called the Amer- [*274 ican Eagle, should be employed in the service of that part of the Island of St. Domingo which was then under the government of Petion, to cruise and commit hostilities upon the subjects, citizens, and property of that part of the Island of St. Domingo which was then under the gov ernment of Christophe, contrary to the form of the statute in such case made and provided. And the said counsel of the said defendants did, then and there, offer to prove, and give in evidence, by way of defense, or in mitigation or diminution of damages, that he, the said David Gelston, was collector, and that he, the said Peter A. Schenck, was surveyor, of the customs for the district of the city of New York, on the tenth day of July, one thousand eight hundred and ten, and before that time, and afterwards, continued to be collector and surveyor as aforesaid; and that they, the said David Gelston and Peter A. Schenck, as col lector and surveyor as aforesaid, and not other wise, did, on the said tenth day of July, in the year last aforesaid, at the port of New York, in the southern district of New York, to wit, at the city of New York, in the county of New York, and at the first ward of the said city, seize, take, and detain the said ship or vessel, with her tackle, apparel and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, according to the form of the statute in such case made and provided, and by virtue of the power and authority vested 275*] in them by the constitution and *laws of the United States, and for such cause as is hereinbefore stated. And the said counsel of the said defendants, did, then and there, insist, before the said justice, on the behalf of the said defendants, that the said several matters, so offered to be proved and given in evidence on the part of the said defendants as aforesaid, ought to be admitted and allowed to be proved and given in evidence, in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid. And the said counsel for the said defendants, did, then and there, pray the said justice to admit and allow the said matters so offered to be proved and given in evidence, to be proved and given in evidence in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid; but to this the counsel learned in the law, of the said plaintiff, objected, and did, then and there, insist, before the said justice, that the same ought not to be admitted, or allowed to be proved or given in evidence, in justification of the trespass charged against the said defendants, and that the same ought not to be admitted, or allowed to be proved or given in evidence, in mitigation or diminution of the damages claimed by the plaintiff as aforesaid, inasmuch as the counsel of the said Goold Hoyt admitted that the defendants had not been influenced by any malicious motives in making the said seizure, and that they had not acted with 276*1 *any view or design of oppressing or injuring the plaintiff. And the said justice did, then and there, declare and deliver his opinion, and did then and there overrule the whole of the said evidence so offered to be proved by the said defendants, and did declare it to be inadmissible in justification of the trespass charged against the said defendants; and after the admission so made by the counsel of the said Goold Hoyt, as aforesaid, did declare and deliver his opinion, that the said evidence ought not to be received in mitigation or diminution of the said damages, as the said admission precluded the said plaintiff from claiming any damages against the defendants by way of punishment or smart-money, and that after such admission the plaintiff could recover only the actual damages sustained, and with that direction left the same to the said jury; and the jury aforesaid, then and there gave their verdict for the said plaintiff for one hundred and seven thousand three hundred and sixty-nine dollars and forty-three cents damages; whereupon the said counsel for the said defendants, did, then and there, on the behalf of the said defendants, except to the aforesaid opinion of the said justice, and insisted that the said several matters, so offered to be proved and given in evidence, ought to have been admitted and given in evidence in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid. And inasmuch as neither the said several matters so produced and given in evidence on the part of the said plaintiff, and by the counsel of the said defendants *ob- [*277 jected to, as insufficient evidence to entitle the said plaintiff to a verdict as aforesaid, nor the said several matters so offered to be proved and given in evidence, on the part of the said defendants, in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid, appear by the record of the verdict aforesaid, the said counsel for the said defendants did, then and there, propose their exceptions to the opinions and decisions of the said justice, and requested him to put his seal to this bill of exceptions, containing the said several matters so produced and given in evidence on the part of the said plaintiff as aforesaid, and the said several matters so offered to be proved and given in evidence, on the part of the said defendants as aforesaid, according to the form of the statute in such case made and provided. And thereupon the said justice, at the request of the said counsel for the said defendants, did put his seal to this bill of exceptions, on the said 15th day of November, in the year of our Lord one thousand eight hundred and fifteen, pursuant to the statute in such case made and provided. If either party shall require the proceedings in the District Court to be set out more at length, then it is understood that such proceedings shall be engrafted into the bill of exceptions, and form part thereof. (Signed) AMBROSE SPENCER. [L. S.] *The bill of exceptions being car. [*278 ried before the Supreme Court of the state of New York, the exceptions were disallowed by the court. The cause was then carried to the Court of Errors of the state, where the judg ment of the Supreme Court of the state was affirmed, and the cause was brought to this court in the manner before stated. The Attorney-General (Mr. Rush) for the plaintiffs in error, argued: 1. That the special matter offered in evidence by the plaintiff's in error ought to have been adinitted as a defense to the action, or at any rate, that it ought to have been admitted. The 27th section of the act of 1793 contains, in general terms, a provision that it shall be lawful for any revenue officer to go on board of any vessel for purposes of search and examination; and if it appear that a breach of any law has been committed, whereby a forfeiture has been incurred, to make a seizure. It has been the wise policy of the law, by enactments and decisions co-extensive with the range of public office, to throw its shield over officers while acting under fair and honest convictions. Thus, under the English statutes, no justice of the peace, or even constable, can be sued for anything done officially who is not clothed with some protection more than is allowed to ordinary de fendants; some relaxation of the rules of pleading, or other immunities are extended to him. It is the same with mayors, bailiffs, church wardens, overseers, and a variety of other officers. So, also, excise officers may always plead the general issue, and give the special matter in evidence. By stat. 24, Geo. II., 279*] *no justice shall be sued for what he has done officially until notice in writing served upon him a month beforehand; nor then, if he tender amends. It would be easy to multiply analogous examples. Several acts of Congress, passed since that of June, 1794, illustrate the same legal principle. By the 11th section of the embargo act of the 25th April, 1808, ch. 170, the collectors of the customs were authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever, in their opinions, there existed any intention to violate or evade any of the provisions of the acts laying an embargo, until the decision of the President could be had upon the seizure. It has been repeatedly determined, that it was sufficient, under this act, for the collectors to have acted with honest convictions; and that the absence of probable | cause afforded, in itself, no ground to a claim for damages.1 So, also, in the law just passed, to preserve more effectually our neutral relations, a principle closely analogous has been introduced. It is provided by the act of the 24th February, 1807, ch. 74, "That when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or merchandise, made by any collector or other officer under any act of Congress authorizing such seizure, and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom 280*] such prosecution *shall be tried that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof; and in such case the claimant or claimants shall not be entitled to costs, nor shall the person who made the seiz ure, or the prosecutor, be liable to action, suit, or judgment, on account of such seizure or prosecution; provided that the ship or vessel, goods, wares, or merchandise, be, after the judgment, forthwith returned to the claimant or claimants." Here it appears, indeed, that if a certificate be granted, it operates as an absolute bar to an action. But it does not follow, that the refusal of a certificate is to close the ear of a court and jury to all the real merits. It will, perhaps, be said, that the judgment of the District Court restoring the vessel, and refusing the certificate, is conclusive; that it was a court of competent jurisdiction, and that, therefore, the matter which it adjudicated could not be reheard, or its propriety examined into collaterally, in any other court. We are aware of the decisions of this court upon this point, and of the English decisions upon the conclusiveness of judgments, from that in Fernandez v. De Acosta, in the time of Lord Mansfield, to the more recent cases. Those. however, who have scrutinized this doctrine 1.-Cronell et al. v. M'Fadon, 8 Cranch, 94; Otis v. Watkins, 9 Cranch, 337 ; Otis v. Walter, 2 Wheat, 18. 2.-Act of March 3d, 1817, chap. 58. 3.-Park on Ins. 178, 3d ed. 6 see plainly that, in later times at least, though it be the law, its inconveniences appear to be sometimes felt, and its wisdom perhaps sometimes doubted. It is an intrinsic objection to the doctrine, that while it professes to look with a single eye to the binding nature of the judgment, turning away from the [*281 merits, yet, in point of fact, the merits do, in most of the cases, get into view; so difficult is it to thrust them back in discussions where justice only is sought. Already has the doctrine disappeared from the codes of some of the leading states in the Union; from that of Pennsylvania by a positive statute, from that of New York by a judicial decision. In how many more of the states it has been broken down is not known, but it is not supposed to be a doctrine entitled to any peculiar favor in this court. But the difference between a sentence of condemnation and of acquittal is material. An acquittal does not ascertain facts. A conviction does. Its character is positive. The former may have arisen from want of evidence; the latter must always rest upon some foundation of proof. A conviction, says Buller, is evidence of the fact; but the reverse of it is not shown by an acquittal. Even in a common action for assault and battery, the plaintiff cannot rely upon a conviction on an indictment for the same assault. The consequence is, that the defendant may defend himself against the suit by going into the original facts. The plaintiffs in error asked no more below, So, also, to support an action for malicious prosecution, malice in the defendant, and want of probable cause, must both concur. If, in this action, an acquittal has been had upon the indictment, the plaintiff may still lay before the jury the evidence which was *heard on the indictment, viz., all the [*282 facts and circumstances to show that the prosecution was malicious. This surely opens to the defendant the corresponding right of going into the original facts on his side. Every principle of just reasoning would seem, then, to lead to the conclusion that the special matter ought to have gone before the jury. If it did not justify the seizure and detention, it might have served to mitigate the damages. The admission of the plaintiff's counsel that the defendants below were not actuated by any malicious or vindictive motive, was not tantamount to hearing all the special matter, since it might, and no doubt would, have established in the minds of the jury a far strong. er claim to mitigation than the mere absence of malice. The great end, therefore, of every lawsuit has been overlooked. Justice has not been done. Unless the judgments below be abrogated, the defendants below, acting as innocent men, and as vigilant and meritorious public officers, are in danger of being crushed under a load of damages which could scarcely have been made more heavy if leveled at conduct marked by the most undisputed and malignant guilt. 2. The plaintiff below, by |