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ROSE V. HIMELEY, 8 U. S. 241 (1808)

U.S. Supreme Court

Rose v. Himeley, 8 U.S. 4 Cranch 241 241 (1808)

Rose v. Himeley

8 U.S. (4 Cranch) 241


If a claim be set up under the sentence of condemnation of a foreign court, this Court will examine into the jurisdiction of that court, and if that court cannot, consistently with the law of nations, exercise the jurisdiction which it has assumed, its sentence is to be disregarded; but of their own jurisdiction, so far as it depends upon municipal laws, the courts of every country are the exclusive judges. Every sentence of condemnation by a competent court having jurisdiction over the subject matter of its judgment is conclusive as to the title to the thing claimed under it.

In every case of a foreign sentence condemning a vessel as prize of war, the authority of the tribunal to act as a prize court must be examinable. The question whether the vessel was in a situation to subject her to the jurisdiction of that court is also examinable.

It is for governments to decide whether they will consider a colony which has separated herself from the mother country an independent nation. Until such decision shall be made or the mother country shall relinquish her claim, courts of justice must consider the ancient state of things as remaining.

Of its own jurisdiction, so far as it depends on municipal rules, the court of a foreign nation must judge, and its decision must be respected. But if it exercises a jurisdiction which, according to the law of nations, its sovereign could not confer, however available its sentences may be within the dominions of the prince from whom the authority is derived, they are not regarded by foreign nations.

It is repugnant to every idea of proceeding in rem to act against a thing which is not in the power of the sovereign under whose authority the court proceeds, and no nation will admit that its property should be absolutely changed, while remaining in its own possession, by a sentence which is entirely ex parte.

A power to seize for the infraction of a law is derived from the sovereign, and must be exercised within those limits which circumscribe the sovereign power. The rights of war may be exercised on the high seas, because war is carried on upon the high seas, but the pacific right of sovereignty must be exercised within the territory of the sovereign.

This was an appeal from the sentence of the Circuit Court for the District of South Carolina, which reversed that of the district judge, who awarded restitution to Rose, the libellant, of certain goods, part of the cargo of the American schooner Sarah.

This vessel, after trading with the brigands or rebels of St. Domingo at several of their ports, sailed from thence with a cargo purchased there for the United States, and had proceeded more than ten leagues from the coast of St. Domingo when she was arrested by a French privateer on 23 February, 1804, carried into the Spanish port of Barracoa in the Island of Cuba, and there, with her cargo sold by the captors, on 18 March, 1804, before condemnation, but under authority, as it was said, of a person who styled himself agent of the government of St. Domingo at St. Jago de Cuba. The greater part of the cargo was purchased by _____ Colt, the master of an American vessel called the Example, into which vessel the goods were clandestinely transferred from the Sarah in the night time and brought into the port of Charleston, in South Carolina, where they were followed by Rose, the supercargo of the Sarah, who filed a libel against them in behalf of the former owners, complaining of the unlawful seizure on the high seas and praying for restoration of the goods, whereupon process was issued and

Page 8 U. S. 242

the goods were arrested by the marshal on 4 May, 1804. No steps appear to have been taken by the French captors toward obtaining a condemnation of the vessel until time enough had elapsed for them to receive information of the proceedings against the goods in this country. The forms of adjudication were begun in the tribunal of the first instance at Santo Domingo in July, 1804, and the condemnation was had before the middle of that month.

This condemnation purports to be made conformably to the first article of the arrete of the captain general (Ferrand) of 1 March, 1804, which was issued six days subsequent to the seizure of the vessel.

This article was as follows:

"The port of Santo Domingo is the only one of the colony of Santo Domingo open to French and foreign commerce; consequently every vessel anchored in the bays, coves, and landing places of the coast occupied by the revolters, those destined for the ports in their possession, and coming out with or without cargoes, and generally every vessel sailing within the territorial extent of the island (except between Cape Raphael and the Bay of Ocoa) found at a less distance than two leagues from the coast shall be arrested by the vessels of the state and by privateers bearing our letters of marque, who shall conduct them as much as possible into the port of Santo Domingo, that the confiscation of the said vessels and cargoes may be pronounced."

On 6 September, 1806, no sentence of condemnation having been produced in evidence, the judge of the district court decreed restitution of the property to the libellant, from which sentence the other party appealed to the circuit court, and there produced the sentence of condemnation, by the tribunal of the first instance, at Santo Domingo. The circuit court reversed the sentence of the district court, and dismissed the libel.

Page 8 U. S. 243

From this sentence the libellant appealed to this Court.

Page 8 U. S. 268

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