It is contended that, the record being no long er in the court of last resort in the state, can, by no process, be removed into this court.

The judiciary act allows the party who thinks himself aggrieved by the decision of any inferior court, five years, within which he may sue out his writ of error, and bring his cause into this court. The same rule applies to judgments and decrees of a state court in cases within the jurisdiction of this court. As the constitutional jurisdiction of the courts of the Union cannot be affected by any regulation which a state may make of its own judicial system, the only inquiry will be, whether the judiciary act

has been so framed as to embrace this case.

York, the decisions of their Supreme Court are | ican Eagle, and her appurtenances, and certain revised and corrected in a court of errors, after ballasts and articles of provisions, &c., the propwhich the record is returned to the Supreme erty of the defendant in error. This is the subCourt, where the judgment as corrected is en- stance of the declaration, although there are tered, and where the record remains. In this some differences in alleging the tort in the dif case the writ of error was received by the court ferent counts. The original defendants pleadof errors, after the record had been transmitted ed, in the first place, the general issue, not to the Supreme Court, whose judgment was guilty, to the whole declaration; and then two affirmed. special pleas. The first special plea, in substance, alleges, that the said ship was attempted to be fitted out and armed, and that the ballast and provisions were procured for the equipment of the said ship, and were put on board of the said ship as a part of her said equipment, with intent that the said ship should be employed in the service of a foreign state, to wit, of that part of the island of St. Domingo which was then under the government of Petion, to commit hostilities upon the subjects of another foreign state, with which the United States were then at peace, to wit, of that part of the Island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in *such case made [*306 and provided; and that the original defendants, by virtue of the power and authority, and in pursuance of the instructions and directions of the President of the United States, seized the said ship, &c., as forfeited to the use of the United States, according to the statute aforesaid, &c. The second special plea is like the first, except that it does not state that the ship was seized as forfeited, but alleges that the ship was taken possession of, and detained, under the instructions of the President of the United States, in order to the execution of the prohibition and penalties of the act in such case made and provided, and except that it omits the allegations under the ridelicets in the first plea, specifying the foreign state by or against whom the said ship was to be employed. To these pleas there is a general demurrer, and joinder in demurrer, upon which the state court gave judgment in favor of the original plaintiff. Upon the trial of the general issue, a bill of exceptions was taken to the opinion of the court. By that bill of exceptions, among other things, it appears, that the original plaintiff, at the trial, gave in evidence, that at the time of the seizure the ship was in his actual full and peaceable possession; that the ship, upon the seizure, had been duly libeled for the alleged offense in the District Court of New York; that the original plaintiff appeared and duly claimed the said ship; and upon the trial she was duly acquitted, and ordered to be restored to the original plaintiff by the District Court; and that a certificate of reasonable cause for the seizure of the said ship had been denied. The plaintiff then gave in evidence, *that the value of the ship [*307 at the time of her seizure was $100,000; and that the said Schenck seized and took possession of the said ship by the written directions of the said Gelston; but no other proof was offered by the plaintiff, at that time, of any right or title in the said plaintiff to the said ship; and here the original plaintiff rested his cause. The original defendants then insisted before the court, that the said several matters, so produced and given in evidence on the part of the original plaintiff, were not sufficient to entitle him to a verdict, and prayed the court so to pronounce, and to nonsuit the plaintiff. But

The words of the act are, that a final judgment or decree in any suit in the highest court 304*] of law or equity of a state in which a decision could be had, where is drawn in question," &c., "may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed," &c. The act does not prescribe the tribunal to which the writ of error shall be directed. It must be directed either to that tribunal which can execute it; to that in which the record and judgment to be examined are deposited, or to that whose judgment is to be examined, although from its structure it may have been rendered incapable of performing the act required by the writ. Since the law requires a thing to be done, and gives the writ of error as the means by which it is to be done, without prescribing in this particular the manner in which the writ is to be used, it appears to the court to be perfectly clear that the writ must be so used as to effect the object. It may then be directed to either court in which the record and judgment on which it is to act may be found. The judgment to be examined must be that of the highest court of the state having cognizance of the case, but the record of that judgment may be brought from any court in which it may be legally deposited, and in which it may be found by the writ.

In this case, the writ was directed to the court of errors, which, having parted with the record, could not execute it. It was then presented to the Supreme Court; but, being directed to the Court of Errors, could not regularly be executed by that court. In this state of things the parties consented to waive all objections to the 305*] *direction of the writ, and to consider the record as properly brought up, if, in the opinion of this court, it would be now properly brought up on a writ of error directed to the Supreme Court of New York. The court being of opinion that this may be done, the case stands as if the writ of error had been properly directed.

The original suit was brought by the defendant in error against the plaintiffs in error for an alleged trespass for taking and carrying away, and converting to their own use, the ship Amer

1818

307

The cause will be first considered in refer-
ence to the bill of exceptions. In respect to the
proof of the original plaintiff's cause of action,
and the opinion of the court that such proof
If,
was sufficient to entitle him to a verdict, no
error has been shown upon the argument; and
certainly none is perceived by this court.
however, there were any error in that opinion,
It does not draw
we could not re-examine it, for it is not within
the purview of the statute.
in question any authority exercised under the
United States, nor the construction of any stat-
ute of the United States.

In respect to the rejection of the evidence offered by the original defendants to prove the forfeiture, and their right of seizure, there can be no doubt that this court has appellate jurisdiction, if by law that evidence ought to have been admitted in justification of the trespass charged on the original defendants; for it involves the construction of a statute [*310 of, and an authority derived from, and exercised under, the United States.

the court refused the application, and declared, I find it; the defects of the system must be that the said several matters so produced and remedied by another department of the govgiven in evidence were sufficient to entitle the ernment. plaintiff to a verdict, and that he ought not to be nonsuited. To which opinion the original defendants then excepted; and the original plaintiff then gave in evidence 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, the said Gillespie had delivered full and complete possession of the said ship, &c., to the original plaintiff, before the taking thereof by the original defendants. The original defendants (having given previous notice of the special matter of defense to be given in evidence on the trial under the general issue, according to the laws of New York,) offered to prove and give in evidence, by way of defense and in mitigation of damages, the same matter of forfeiture alleged in their first special plea, with the additional fact that 308*] *the said Gelston was collector, and the said Schenck was surveyor of the customs of the district of New York, and as such, and not In order to establish the admissibility of the otherwise, made the seizure of the ship, &c. And the original defendants did, thereupon, insist that the said several matters, so offered evidence offered by the defendants, it is necesto be proved and given in evidence, ought to sary for them to sustain the affirmative of be admitted in justification of the trespass the following propositions. 1. That a forfeitcharged against the defendants, or in mitiga-ure had been actually incurred under the statute tion of the damages claimed by the plaintiff, of 1794, ch. 50. 2. That it was competent for But the a state court of common law to entertain and and prayed the court so to admit it. counsel for the plaintiff, admitting that the de- decide the question of forfeitures. 3. That fendants had not been influenced by any mali- the sentence of equittal in the District Court cious motive in making the said seizure, and was not conclusive upon the question of forthat they had not acted with any view or design feiture; and, 4. That the defendants, as officers Upon the last point, there does not seem to of oppressing or injuring the plaintiff, the of the customs, had a right to make the seizure. court overruled the whole of the said evidence so offered to be proved by the original defend- be much more room for doubt. At common ants, and did declare it to be inadmissible in law, any person may, at his peril, seize for a forjustification of the trespass charged against the feiture to the government; and if the governdefendants; and after the admission so made ment adopt his seizure, and the property is by the original plaintiff's counsel, that the said condemned, he will be completely justified; and evidence ought not to be received in mitigation it is not necessary to sustain the seizure or justify or diminution of the said damages, as the said the condemnation, that the party seizing shall admission precluded the plaintiff from claiming be entitled to any part of the forfeiture. (Hale any damages by way of punishment or smart- on the Customs, Harg. Tracts, 227; Roe v. Roe, money, and that after such admission the plaint- Hardr. R., 185; Malden v. Bartlett, Park. R., And if the party be entitled to any iff could only recover the damages actually 105; though Horne v. Boozey, 2 Str., 952, seems sustained, and with that direction left the contra.) part of the forfeiture (as the informer under cause to the jury. the statute of 1794, ch. 50, is by the express provision of the law), there can be no doubt that he is entitled in that character to seize. (Roberts v. Witherhead, 12 Mod., 92.) In the absence of all positive authority, it might be proper to resort to these principles, in aid of The act of the manifest purposes of the law. But [*311 there are express statutable provisions, which directly apply to the present case. the 2d of March, 1799, ch. 128, s. 70, makes it the duty of the several officers of the customs, to make seizure of all vessels and goods liable to seizure by virtue of any act of the United States respecting the revenue; and assuming the statute of 1794, ch. 50, not to be a revenue law within the meaning of this clause, still the case falls within the broader language of the act of the 18th of February, 1793, ch. 8, s. 27, which authorizes the officers of the revenue to make seizure of any ship or goods, where any breach of the laws of the United States has

From this summary of the pleadings, and
of the facts in controversy at the trial, it is
apparent that this court has appellate juris-
diction of this cause only so far as is drawn
in question the validity of an authority exer-
cised under the United States, and the decision
is against the validity thereof, and so far as
309*]*is drawn in question the construction
of some clause in a statute of the United
States, and the decision is against the title,
right, privilege, or exemption specially set up
or claimed by the original defendants, for to
such questions (so far as respects this case) the
25th section of the judiciary act has expressly
Whether such a
restricted our examination.
restriction be not inconsistent with sound pub-
lic policy, and does not materially impair the
rights of other parties as well as of the United
States, is an inquiry deserving of the most
serious attention of the legislature. We have
nothing to do but to expound the law as we

397

tent jurisdiction of the cause, although it may not be exclusive. But it applies with greater force to a court of exclusive jurisdiction; since an attempt to re-examine its decree, or deny its conclusiveness, is a manifest violation of its exclusive authority. It is doing that indirectly which the law itself prohibits to be done directly. It is, in effect, impeaching collaterally, a sentence which the law has pronounced to be valid until vacated or reversed on appeal by a superior tribunal.

been committed. Upon the general principle, then, which has been above stated and upon the express enactment of the statute, the defandants, supposing there to have been an actual forfeiture, might justify themselves in the seizure. There is this strong additional reason in support of the position, that the forfeiture must be deemed to attach at the moment of the commission of the offense, and, consequently, from that moment, the title of the plaintiff would be completely devested, so that he could maintain no action for the subsequent seizure. This is the doctrine of the English courts, and it has been recognized and enforced in this court, upon very solemn argument. (United States v. 1960 Bags of Coffee, 8 Cranch, 398; The Mars, 8 Cranch, 417; Roberts v. Witherhead, 12 Mod., 92; Salk., 223; Wilkins v. Despard, 5 T. R.,fense. But at what time and under what cir112.)

If

The argument against this doctrine, which has been urged at the bar, is, that an action of trespass will, in case of a seizure, lie in a state court of common law, and therefore the defendant must have a right to protect himself by pleading the fact of forfeiture in his decumstances will an action of trespass lie? If In the next place, can a state court of common the action be commenced while the proceedings law entertain and decide the question of for- in rem for the supposed forfeiture are pending 312*] feiture in this case. This is a question in the *proper court of the United [*314 of vast practical importance; but in our judg-States, it is commenced too soon; for until a ment, of no intrinsic legal difficulty. By the final decree, it cannot be ascertained whether constitution, the judicial power of the United it be a trespass or not, since that decree can States extends to all cases of law and equity alone decide whether the taking be rightful or arising under the constitution, laws, and trea- tortious. The pendency of the suit in rem ties of the United States, and to all cases of would be a good plea in abatement, or a temadmiralty and maritime jurisdiction; and by porary bar of the action, for it would establish the judiciary act of 1789, ch. 20, s. 9, the dis- that no good cause of action then existed. trict courts are invested with exclusive original the action be commenced after a decree of concognizance of all civil causes of admiralty and demnation, or after an acquittal, and there be maritime jurisdiction, and of all seizures on a certificate of reasonable cause of seizure, then land and water, and of all suits for penalties in the former case by the general law, and in and forfeitures incurred under the laws of the the latter case by the special enactment of the United States. This is a seizure for a forfeit- statute of the 25th of April, 1810, ch. 64, s. 1, ure under the laws of the United States, and, the decree and certificate are each good bars to consequently, the right to decide upon the the action. But if there be a decree of acquitsame, by the very terms of the statute, exclu- tal and a denial of such certificate, then the sively belongs to the proper court of the United seizure is established conclusively to be tortious, States; and it depends upon its final decree, and the party is entitled to his full damages for proceeding in rem, whether the seizure is to be the injury. adjudged rightful or tortious. If a sentence of condemnation be pronounced, it is conclusive, that a forfeiture is incurred; if a sentence of acquittal, it is equally conclusive against the forfeiture; and in either case, the question cannot be litigated in another forum. This was the doctrine asserted by this court, in the case of Slocum v. Mayberry (2 Wheat. R., 1), after very deliberate consideration, and to that doctrine we unanimously adhere.

But

The cases also of Wilkins v. Despard (5 T. R.. 112), and Roberts v. Witherhead (12 Mod., 92; Salk., 323), have been relied on to show that a court of common law may entertain the question of forfeiture, notwithstanding the exclusive jurisdiction of the exchequer in rem. these cases do not sustain the argument. They were both founded on the act of navigation (12 Car., 2, ch. 18, s. 1), which, among other things, enacts that one-third of the forfeiture shall go to him "who shall seize, inform, or sue for the same in any court of record." So that it is ap

statute, the exchequer had not an exclusive jurisdiction, but that the other courts of common law had at least a concurrent jurisdic- [*315 tion. And if these cases did not admit of this obvious distinction, certainly they could not be admitted to govern this court in ascertaining a jurisdiction vested by the constitution and laws of the United States exclusively in their own courts.

The reasonableness of this doctrine results from the very nature of proceedings in rem. All persons having an interest in the subject-parent that in respect to forfeitures under this matter, whether as seizing officers or informers, or claimants, are parties or may be parties to 313*] such suits, so far as their interest *extends. The decree of the court acts upon the thing in controversy, and settles the title of the property itself, the right of seizure, and the question of forfeiture. If its decree were not binding upon all the world upon the points which it professes to decide, the consequences would be most mischievous to the public. In It is, therefore, clearly our opinion, that a case of condemnation, no good title to the prop- state court has no legal authority to entertain erty could be conveyed, and no justification of the question of forfeiture in this case, and that the seizure could be asserted under its protec-it exclusively belonged to the cognizance of the tion. In case of acquittal, a new seizure might be made by any other persons toties quoties for the same offense, and the claimant be loaded with ruinous costs and expenses. This reasoning applies to the decree of a court having compe

proper court of the United States. Indeed, no principle of general law seems better settled than that the decision of a court of a peculiar and exclusive jurisdiction must be completely binding upon the judgment of every other

court, in which the same subject-matter comes incidently in controversy. It is familiarly known in its application to the sentences of ecclesiastical courts, in the probate of wills and granting of administrations of personal estate; to the sentences of prize courts in all matters of prize jurisdiction; and to the sentences of courts of admiralty and other courts acting in rem, either to enforce forfeitures or to decide civil rights.

In the preceding discussion, we have been unavoidably led to consider and affirm the conclusiveness of the sentence of a court of competent jurisdiction proceeding in rem as to the question of forfeiture; and a fortiori to allirm it in a case where there is an exclusive jurisdiction. In cases of condemnation the authorities are so distinct and pointed that it would, after the very learned discussions in the state courts, be a waste of time to examine them at large. Nothing can be better settled than that a sen316*] tence of condemnation *is, in an action of trespass for the property seized, conclusive evidence against the title of the plaintiff. (See Harg. Tracts, 467, and cases there cited; Thomas v. Withers, cited by Buller, J., in Wilkins v. Despard, 5 T. R., 112, 117; Scott v. Shearman, 2 W. Bl., 977; Henshaw v. Pleasance, 2 W. Black., 1174; Geyer v. Aquilar, 7 T. R.. 681, and case cited by Lord Kenyon; Id., 696; Medows v. Dutchess of Kingston, Ambler's Rep., 756; 2 Evans's Pothier on Obligations, 346 to 367.)

it is strange that it cannot be evidence for the
party if found one way, and yet can be evi-
dence against him if found another way. If
such were the rule, it would be a perfect anoma-
ly in the law, and utterly subversive of the
first principles of reciprocal justice. The only
authority relied on for this purpose is a dictum
in Buller's Nisi Prius, 245, where it is said that
though a conviction in a court of criminal ju-
risdiction be conclusive evidence of the fact, if
it afterwards come collaterally in controversy
in a court of civil jurisdiction; yet an acquittal
in such court is no proof of the reverse, for an
acquittal ascertains no fact as a conviction does.
The case relied on to support this dictum (3
Mod., 164), contains nothing which lends any
countenance to it. (Peake's Evid. 3d ed., р.
47, 48.) But assuming it to be good law in re-
spect to criminal suits, it has nothing (*318
to do with proceedings in rem.
Where prop-
erty is seized and libeled as forfeited to the
government, the sole object of the suit is to as-
certain whether the seizure be rightful, and the
forfeiture incurred or not. The decree of the
court, in such case, acts upon the thing itself,
and binds the interests of all the world, whether
any party actually appears or not.
If it is con-
demned, the title of the property is completely
changed, and the new title acquired by the
forfeiture travels with the thing in all its fu-
ture progress. If, on the other hand, it is ac-
quitted, the taint of forfeiture is completely re-
moved, and cannot be re-annexed to it. The
original owner stands upon his title discharged
of any latent claims, with which the supposed
forfeiture may have previously infected it. A
sentence of acquittal in rem does, therefore,
ascertain a fact, as much as a sentence of con-
demnation; it ascertains and fixes the fact that
the property is not liable to the asserted claim
of forfeiture. It should therefore be conclusive
upon all the world of the non-existence of the
title of forfeiture, for the same reason that a
sentence of condemnation is conclusive of the
existence of the title of forfeiture. It would
be strange, indeed, if, when the forfeiture ex
directo could not be enforced against the thing,
but by an acquittal was completely purged
away, that indirectly the forfeiture might be
enforced through the seizing officer; and that
he should be at liberty to assert a title for the
government, which is judicially abandoned by,
or conclusively established against, the govern-
ment itself.

A distinction, however, has been taken and attempted to be sustained at the bar, between the effect of a sentence of condemnation and of a sentence of acquittal. It is admitted that the former is conclusive; but it is said that it is otherwise as to the latter, for it ascertains no fact. It is certainly incumbent on the party who asserts such a distinction to prove its existence by direct authorities, or inductions from known and admitted principles. In the Dutchess of Kingston's case (11 State Trials, 261; Runnington Eject., 364; Hale. Hist. Com. Law by Runnington, note, p. 39. &c.), Lord Chief Justice DeGrey declares that the rule of evidence | must be, as it is often declared to be, reciprocal; and that in all cases in which the sentences favorable to the party are to be admitted as conclusive evidence for him, the sentences, if unfavorable, are, in like manner, conclusive evidence against him. This is the language of very high authority, since it is the united opinion of all the judges of England; and though de- *One argument farther has been urged [*319 livered in terms applicable strictly to a criminal at the bar on this point, which deserves notice. 317*] suit, must be deemed equally to apply It is, that the sentence of acquittal ought not to civil suits and sentences. And upon princi- to be conclusive upon the original defendants, ple, where is there to be found a substantial because they were not parties to that suit. This difference between a sentence of condemnation argument addresses itself equally to a sentence and of acquittal in rem? If the former ascer- of condemnation; and yet in such case the sentains and fixes the forfeiture, and, therefore, is tence would have been conclusive evidence in conclusive, the latter no less ascertains that favor of the defendants. The reason, however, there is no forfeiture, and, therefore, restores of this rule, is to be found in the nature of prothe property to the claimant. It cannot be pre-ceedings in rem. To such proceedings all pertended that a new seizure might, after an acquittal, be made for the same supposed offense; or if made, that the former sentence would not, as evidence, be conclusive, and, as a bar, be peremptory against the second suit in rem. And if conclusive either way, it must be because the acquittal ascertains the fact that there was no forfeiture. And if the fact be found,

sons having an interest or title in the subjectmatter are, as we have already stated, in law, deemed parties; and the decree of the court is conclusive upon all interests and titles in controversy before it. The title of forfeiture is necessarily in controversy in a suit to establish that forfeiture; and, therefore, all persons having a right or interest in establishing it (as the seiz