now delivered the opinion of the court. Several very important and difficult questions have been raised and discussed on the argument, which, according to the view I have taken of the case, it becomes unnecessary for me particularly to notice. That the brig Jane, and her cargo, were the property of the plaintiff at the time of the capture by the privateer, was very satisfactorily proved; and the conversion by the defendant was equally well established. The only question of doubt in the case was, whether this court has jurisdiction of the cause, or whether it is a case exclusively qf admiralty jurisdiction. That courts of common law have cognizance of marine trespasses, is a point no where questioned. It is. not the *289place, Rut the nature of the question that will determine the jurisdiction of rhe court.
Le Caux v. Eden, (Doug. 594.) is a leading case on the question whether common law courts have jurisdiction when the question is prize or no prize. It is there expressly admitted, that trespass will lie at common law, for taking a ship on the high seas: and the reason assigned in all the cases on this subject, why common law courts have not cognisance of the question, whether taken as prize or not, is because prizes are acquisitions jure belli, and the jus belli is to be determined by the law of nations, and not by the particular municipal law of any country. Whenever, therefore, the rights of the parties are to be governed by the municipal law, and not by the law of nations, it would seem to follow, as matter of course, that coni" mon law courts have jurisdiction of the case. In the act of congress establishing the judicial courts of the United States, there is a saving to suitors, in all cases, of the right of a common law remedy when the common law is competent to give it. If courts of common law have cognizance of marine trespasses, then, prima facie, this court has jurisdiction, and it is matter of defence, and to be shown on the part of the defendant, that this jurisdiction is taken away. When this defence shows and involves in it a violation of an act of congress, it appears to me to be going great lengths to yield our jurisdiction. This is surely a question depending on the municipal law of this country, and not upon the law of nations; and the reason for sending the parties to a court of admiralty ceases. A court of common Jaw is as competent to try the question as a court of admiralty. That the privateer, in this case, was fitted out in direct violation of the act of congress cannot be denied. The act of the 5th of June, 1794, and which is made perpetual by an act of the 24th of April, 1800, makes it a misdemeanour, and subjects to a penalty any person who shall, within any ports, harbours, bays, rivers, or other waters of the United States, fit out and arm, or attempt to fit out and arm, or shall, knowingly, be concerned in furnishing, fitting out, or arming any ship or vessel with intent that she shall be employed in the service of any foreign prince or state to cruise or commit hostilities upon the subjects, citizens, or property of another foreign prince or state with whom the United Slates are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States *290for any ship or vessel, to the intent that she may be employed as aforesaid. In the case before us, it is very satisfactorily proved that the privateer Whiting, which captured the plaintiff’s brig, was fitted out at Washington, in North Carolina; and that the commission to cruise was put on board while she was within the jurisdiction of the United Stales, which commission authorized cruising against the Spaniards xvith whom the United Slates were at peace.
If it became necessary to inquire whether the government at Carthagena was competent to issue the commission under which the privateer acted, this might most properly belong to admiralty jurisdiction. But whether the commission issued from competent authority or not, cannot be a subject of inquiry ; and, indeed, this is altogether immaterial, for the very putting it on board within the jurisdiction of the United States, was illegal, and the commission a nullity. The defendant cannot be alloxved to set up, as a justification or excuse for his trespass, an act made penal, arid a criminal offence, under the law of congress. To inquire into this matter is not entertaining the question whether prize or not. This is a point depending entirely on our own municipal laxv, with which the law of nations has no concern. It is no answer to say, that the defendant may be proceeded against for the penalty and offence prescribed by the statute. This is a prohibitory statute, and every act done against it is' not only illegal, but absolutely void. It xx'ould, in my judgment, be a dangerous doctrine, and subversive of all sound rules and principles, to listen to a defence, founded on a violation of this act of congress. Courts of law will not assist an illegal transaction in any respect, or permit it to be set up as a protection. Although this act contains no express prohibition, yet it is a well-settled rule that a penalty implies a prohibition. (Carthew, 252.) 1 can. discover no reason whatever, xvhy courts of common law are not as well adapted to inquire into a violation of this act, as courts of admiralty. It is surely not enough to take away our jurisdiction, barely to pretend th.at the taking xvas as prize. Suppose no commission had been on board at all, or the captors were acting under a forged commission, without any pretence that it had been granted by any government or sovereignty whatever, xvould it not be competent for courts of common law to take cognisance of such inquiries f A vessel cannot be said to be captured, as prize, *291unless the act be done bona fide, and under a commission, at least, prima facie, valid, and where the responsibility of the government, which must be settled according to the law of nations, is involved. In such case, there is a great propriety in sending a party to a court of admiralty jurisdiction for redress. But not so, where our own municipal law furnishes the rule by which the claim, and rights of the parties must be tested. The illegal fitting out of this privateer, in direct violation of the act of congress, precludes the defendant from setting up the claim or pretence, that the taking was as prize: and it is upon this ground alone that I place my opinion that this court has jurisdiction of the cause. All the facts which show that the fitting out of the privateer was directly in the face of the act of congress, appear orr the bill of exceptions; and we are called upon to pronounce the law upon those facts. Putting out of view the question of prize, it is not denied that the plaintiff has shown enough to entitle him to recover; and the rule of damages adopted by the jury has not been questioned. The opinion of the court, therefore,, is, that the plaintiff is entitled to judgment.
‘rrz¡ SZg' eoifíná there cited, $ See also Mos-tips v Fabrigas, Coivp, 179. Nightingale Bridges. Carth. 131. i Shower, 135. Hughes v. Cornelius, 2 Shorn. 232. T. Raym. 473
~Sa~~nd.
^3 ¡jat¡R^ 55, liH‘
] Rep. 482. Answer to the Prussian Me ni -al See 4ppar. Chitiy's L. of ¿V. 302 3 DaNaf, 163. 4 Cranch, 514.