dissented. He observed that the verdict of the jury being generally for the plaintiff, without any special finding of the facts, the court must examine the opinion of the judge as expressed to the jury; and if the law was not correctly laid down, a new trial must be awarded, unless, indeed, admitting all the facts proved by the defendant to be true, the taking of the plaintiff’s vessel was a marine trespass, and not as prize of war.
The only point for our decision is, whether, as a court of common law, we have jurisdiction of this case. It cannot be questioned that if the plaintiff’s brig was taken as prize of war¿ this court has no jurisdiction. I believe this proposition has never been doubted since the cases of La Caux v. Eden, (Doug. 526.,) and of Lindo v. Rodney, (Dong. 591., note 1.) In the latter case, we have the authority of Mr. Justice Buller, “ that there is a current of authorities from the time of Queen Elizabelk, to the present time, all of which agree that the admiralty has jurisdiction, not only of the question of prize or not prize, but of all its consequences.” He cites the case of Rous v. Hazard, argued at the Cockpit, in 1749, and determined by Ch. J.s Lee, who held, with the concurrence of the court, “ that though *292for taking a ship on the high seas, trespass would lie at common ]aw; yet, when it was taken as prize, though taken wrongfully, though it were acquitted, and though there was no colourfor the taking, the judge of the admiralty was judge-of the damages and costs, as well as of the principal matter; and if such an action was brought in England, and the defendant pleaded not guilty, the plaintiff could not recover.” Mr. Justice Buller assigns the true reason, why the question of prize or no prize, was solely conusable in the admiralty; “ 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.” Lord Mansfield held the same doctrine in Lindo v. Rodney. “ A thing,” he said, “ being done on the high seas, does not exclude the jurisdiction of the common law; for seizing, stopping, or taking a ship on the high sea, not as prize, an action will lie; but for taking as prize, no action will lie, the nature of the question excludes, not the locality.” The same doctrine was reiterated in Smart v. Wolfe, (3 Term Rep. 344.,) and the same principles were recognized in the court of appeals of North-Caro-Una, in Simpson v. Nardeau (Cameron and Norwood, 115.) In tha; case, one of the points relied on arises in this case, that is as to the conduct of the captors after the capture; and it was contended, that by such after conduct the defendant became a trespasser ab initio. Judge Hall observes, that to ascertain the merits of that argument, the court must have recourse to the usages and regulations between us and France; and that, to go in search of these, would lead the court out of its course ; they exclusively belong to the prize courts.
In the second proposition laid down by the judge to the jury, he instructed them that if the San Francisco de Paula, had a Carlhagenian commission on board, and acted under it, in capturing the plaintiff’s brig, the subsequent conduct of the captors in not proceeding against the brig as a prize, but bringing her into the United States under the circumstances she was brought in, and selling her as the defendant’s private property, would rendey the defendant a trespasser ab initio, and the plaintiff would be entitled to recover. I repeat it, that the jury may have founded their verdict on this part of the direction, and, therefore, we cannot conclude, from the finding, whether the capture was as prize or not. There is abundant proof in the bill of exceptions, that the schooner had a Carthagenian *293.tiommission on board, and that her captain and crew professed, in making the capture, to act under it. They took forcible possession of the brig, and her captain and crew were taken out. This appears to me either a capturing as prize of war, or an act of piracy; and as the jury have not pronounced it to be the one or the other, I am relieved from the necessity of examining the question, whether courts of common law have jurisdiction in cases of piracy-, and thus the point to be decided is narrowed down to this, whether the subsequent conduct of the captors, admitting the capture to have been as prize, will render the act of capture a trespass ab initio, and give a court of common law jurisdiction.
I can discover no principle of law to warrant this; if the principal question, of prize or no prize, is exclusively of admiralty jurisdiction, how can it be that a court of common law, proceeding according to the municipal law, and not the law of nations, and, confessedly, having no conusance of the principal question, shall assume jurisdiction over the principal question, by the application of its own peculiar law to the incidents of the main question ?
It is as exclusively appurtenant to the admiralty to determine whether the subsequent treatment of the prize, invalidates the capture, as it is to decide whether the capture is valid or not. It requires the same application of the laws and usages of nations to the posterior conduct of the captors, in determining whether the captured vessel has ceased to be prize, as in the primary question of prize or not. In the case of Rous v. Hazard, Chief Justice Lee held, that where the captured vessel was acquitted in the admiralty, the court of common law was equally excluded from jurisdiction, the sentence not altering the nature of the original taking; it being a taking as prize, the common law could not notice it as a trespass. So, here, if the capture was as prize, the common law cannot notice it as a trespass. Every principle which excludes the jurisdiction of a court of common law, on the question of prize or no prize, equally excludes it in every stage of the business; and it does not belong to this court to apply the principles of the municipal law to any of the consequences of a prize, to ascertain whether the captured property retains, or has lost that character.
1 understand my brethren as not contesting the soundness of the principles I have here advanced, but that the decision of this *294cause, in favour of the plaintiff, rests on the fact, that the San Francisco de Paula had been fitted out in the United States, contrary to the 3d section of the act of congress of the 5th of June, If94; and that the original fitting out being unlawful, the capture of the plaintiff’s brig must necessarily be so. There is no doubt that the fitting out of this privateer was unlawful; it was a high misdemeanor, subjecting the offender to fine and imprisonment, and the vessel to forfeiture. But 1 cannot perceive that this precludes the question of jurisdiction. The act is silent as to the consequences to result from a capture by a vessel thus •fitted out; and it seems to me that it cannot be doubted that a vessel though armed and fitted out in violation of that act, may take a prize. It is another question, whether it would be a valid capture; and in the discussion of that question, in an admiralty court of the United States, it might well be urged, and with an overwhelming effect, that the capturing vessel had no right to cruise or capture. This could not be objected against the captor in the courts of admiralty of any other nation, for those courts would not carry into effect the penal laws of another country. These considerations, however, dd not belong to this court; it is immaterial what we may think of the illegality ■ of the capture complained of; we have no power to entertain the question, or to afford redress ; and the arguments addressed to us are misdirected.
The plaintiff is not without remedy, if his rights have been invaded ; I only insist that he has applied to the wrong forum*
Yates, J., declared himself to be of the same opinion.
Judgment for the plaintiff.