tor are still open for redress. The injured neutral, it is to be presumed, will there receive indemnity for a wanton or illicit capture; and if justice be refused him, his own`nation is bound to vindicate, or indemnify him.

Some confusion of idea appears to hang over this doctrine, resulting chiefly from a doubt as to the mode in which the principle of exclusive cognizance is to be applied in neutral courts to cases as they arise; and this obscurity is increased by the арраrent bearing of certain cases decided in this court in the years 1794 and 1795.

The material questions necessary to be considered, in order to dissipate these doubts, are, 1st. Does this principle properly furnish a plea to the jurisdiction of the admiralty courts? 2d. If not, then does not jurisdiction over the subject matter draw after it every incidental or resulting question relative to the disposal of the proceeds of the res subjecta?

The first of these questions was the only one settled in the case of Glass v. The Betsey, and the case was sent back with a view that the district. court should exercise jurisdiction, subject, however, to the law of nations on this subject as the rule to govern its decision.

And this is certainly the correct course. Every violent dispossession of property on the ocean is, prima facie, a maritime tort; as such, it belongs to the admiralty jurisdiction. But sitting and judging, as such courts do, by the law of nations, the moment it is ascertained to be a seizure by a commissioned cruiser, made in the legitimate exercise of the rights

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of war, their progress is arrested; for this circumstance is, in those courts, a sufficient evidence of right.

That the mere fact of seizure as prize does not, of itself, oust the neutral admiralty court of its jurisdiction, is evident from this fact, that there are acknowledged cases in which the courts of a neutral may interfere to devest possessions; to wit, those in which her own right to stand neutral is invaded: and there is no case in which the court of a neutral may not claim the right of determining whether the capturing vessel be, in fact, the commissioned cruiser of a belligerant power. Without the exercise of jurisdiction thus far, in all cases, the power of the admiralty would be inadequate to afford protection from piratical capture. The case of Talbot v. Jansen, as well in the reasoning of the judges as in the final decision of the case, is fully up to the support of this doctrine. But it is supposed that the case of the Mary Ford supports the idea, that as the court had acknowledged jurisdiction over the question of salits jurisdiction extended over the whole subject matter, and authorized it to proceed finally to dispose of the residue between the parties litigant.

vage,

That case certainly will not support the doctrine to the extent contended for in this case. It is true, that the court there lay down a principle, which, in its general application is unquestionably correct, and which, considered in the abstract, might be supposed applicable to the present case. But this presents only one of innumerable cases which occur in

our books to prove how apt we are to misconceive 1816. and misapply the decisions of a court, by detaching L'Invincible those decisions from the case which the court propose to decide. The decision of the supreme court in that case is in strict conformity with that of the cireuit court in the present case. For when the court come to apply their principle, they do not enter into the question of prize between the belligerants, but decree the residue to the last possessor: thus making the fact of possession, as between the parties litigant, the criterion of right; and this is, unquestionably, consistent with the law of nations. Those points, which can be disposed of without any reference to the legal exercise of the rights of war, the court proceeds to decide; but those which necessarily involve the question of prize or no prize, they remit to another tribunal.

It would afford us much satisfaction could we, with equal facility, vindicate the consistency of this court in the case of Del Col v. Arnold. To say the least of that case, it certainly requires an apology. We are, however, induced to believe, from several circun:stances, that we have transmitted to us but an imperfect sketch of the decision in that case.. The brevity with which the case is reported, which we are informed had been argued successively at two terms, by men of the first legal talents, necessarily suggests this opinion; and when we refer to the case of the Cassius, decided but the term preceding, and observe the correctness with which the law applicable to this case, in principle, is laid down in

1816. the recital to the prohibitions, we are confirmed in that opinion.

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But the case itself furnishes additional confirmation. There is one view of it in which it is reconcilable to every legal principle. It appears that, when pursued by the Terpsicore, the Grand Sachem was wholly abandoned by the prize crew, and left in possession of one of the original American crew, and a passenger; that, in their possession, she was driven within our territorial limits, and was actually on shore when the prize crew resumed their possession, and plundered and scuttled her. Supposing this to have been a case of total dereliction, (an opinion which, if incorrect, was only so on a point of fact, and one in support of which much might be said, as the prize crew had no proprietary interest, but only a right founded on the fact of possession,) it would follow, that the subsequent resumption of possession was tortious, and subjected the parties to damages. On the propriety of the seizure of the Industry, to satisfy those damages, the court give no opinion, but place the application of the proceeds of the sale of this vessel on the ground of consent; a principle, on the correctness of the application of which to that case, the report affords no ground to decide,

But, admitting that the case of the Grand Sachem was decided under the idea that the courts of the neutral can take cognizance of the legality of belligerant seizure, it is glaringly inconsistent with the acknowledged doctrine in the case of the Cassius and of Talbot v. Jansen, decided the term nexi

The

preceding; and in the Mary Ford, decided at the 1816. same term with that of the Grand Sachem. The subject has frequently, since that term, been sub- Edward. mitted to the consideration of this court, and the decision has uniformly been, that it is a question exclusively proper for the courts of the capturing

power.

Sentence affirmed.

(INSTANCE COURT.)

The Edward.-SCOTT, Claimant.

In revenue, or instance causes, the circuit court may, upon appeal, allow the introduction of a new allegation into the information, by way of amendment.

Under the 3d section of the act of congress, of the 28th of June, 1809, every vessel bound to a foreign permitted port, was obliged to give a bond, with condition not to proceed to any port with which commercial intercourse was not permitted, nor to trade with such port.

Where the evidence is sufficient to show a breach of the law, but the information is not sufficiently certain to authorize a decree, the supreme court will remand the cause to the circuit court, with directions to allow the information to be amended.

APPEAL from the circuit court for the district of Massachusetts. The offence charged in the information filed in this case, in the district court of Massachusetts, is, that the ship Edward, on the 12th day of February, 1810, departed from the port of Sa