but no jurisdiction. Some few royal prerogatives, it is FAIRFAX's true, are expressly conveyed, and these unquestionably DEVISEE must have accrued to the state upon the assertion of independence. But the interest in the soil remained to HUNTER'S the grantee. So far, therefore, I feel no difficulty about LESSEE. sustaining the claim of the devisee. But did this interest remain in him at the time of the treaty of 1794?
I am of opinion it did not. The interest acquired under the devise was a mere scintilla juris, and that scintilla was extinguished by the grant of the state vesting this tract in the Plaintiff in error. I will not say what would have been the effect of a more general grant. But this grant emanated under a law expressly relating to the lands of lord Fairfax authorizing them to be entered, surveyed and granted.
The only objection that can be set up to the validity of this grant is, that it was not preceded by an inquest of office. And the question then will be, whether it was not competent for the state to assert its rights over the alien's property, by any other means than an inquest of office. I am of opinion that it was. That the mere executive of the state could not have done it, I will readily admit; but what was there to restrict the supreme legislative power, from dispensing with the inquest of office? In the case of Smith and the state of Maryland, this Court sustained a specific confiscation of lands under a law of the state, where there was neither conviction nor inquest of office. And in Great Britain, in the case of treason, an inquest of office is expressly dispensed with by the statute 33, H. VIII, c. 30. So that there is nothing mystical, nor any thing of indispensable obligation, in this inquest of office. It is, in Great Britain, a salutary restraint upon the exercise of arbitrary power by the crown, and affords the subject a simple and decent mode of contesting the claim of his sovereign; but the legislative power of that country certainly may assert, and has asserted, the right of dispensing with it, and I see no reason why it was not competent for the legislature of the state of Virginia to do the same.
Several collateral questions have arisen, in this case on which, as I do not differ materially from my bre
FAIRFAX's thren, I will, only express my opinion in the briefest
HUNTER'S I am of opinion that whenever the case, made out in LESSEE. the pleadings, does not, in law, sanction the judgment which has been given upon it, the error sufficiently appears upon the record to bring the case within the XXV section of the judiciary act.
I am also of opinion that whenever a case is brought up to this Court under that section, the title of the parties litigant must necessarily be enquired into, and that such an enquiry must, in the nature of things, precede the consideration how far the law, treaty, and soforth, is applicable to it; otherwise an appeal to this Court would be worse than nugatory.
And that in ejectment at least, if not in every possible case, the decision of this Court must conform to the state of rights of the parties at the time of its own judgment: so that a treaty, although ratified subsequent to the decision of the Court appealed from, becomes a part of the law of the case and must control our decision.
2. The evidence of that necessity which will excuse a violation of an embargo law, must be very clear 22 and positive. Id.
3. Cases of seizure, upon waters na- vigable from the sea by vessels of more than 10 tons burthen, for breach of the laws of the United States, are cases of admiralty and maritime jurisdiction, and are to be tried without a jury. Whelan v. United States,
4. The letter of Mr. Merry of the 12th of April, 1804, extended, to the island of Curragoa, the order of the lords commissioners of the admiralty, of the 5th of January, 1804, respecting the blockade of Martinique and Guadaloupe. Ma- ryland In. Co. v. Wood,
402 5. A sentence of a foreign tribunal, condemning neutral property un- der an edict unjust in itself, con- trary to the law of nations, and in violation of neutral rights; and which has been so declared by the legislative and executive depart- ments of the government of the United States; changes the pro- perty of the thing condemned. Williams v. Armroyd,
6. A sale by the authority of the cap- tors, before sentence of condemna- tion, is affirmed by such sentence, as is good ab initio. Id. 7. A French tribunal at Gaudaloupe had jurisdiction of property seized on the high seas for breach of the
Milan decree, and carried into the Dutch part of the island of St. Martins, and there sold, by order of the Dutch governor of St. Mar- tins, before condemnation and without any authority from the French tribunal at Guadaloupe. Id. 8. The American owner cannot re- claim, in the Courts of this country, his property which has been seized and condemned in a French Court under the Milan decree. Id. 425 9 An information, or libel for a for- feiture, must be particular and cer- tain in all the material circum- stances which constitute the of- fence. Brig Caroline v. United States,
Schr. Hoppet v. U. States, Schr. Anne v. U. States,
10. An informal libel, or information in rem, may be amended by leave of the Court. Id
Schr. Anne v. U. States,
Schr. Hoppet v. U. States, 11. In a count'in a libel upon the 50th section of the collection law of March 2d, 1799; for unlading goods without a permit, it is not necessary to state the time and place of importation, nor the ves- sel in which it was made; but it is sufficient to allege that they were unknown to the attorney of the United States. Locke v. United States. 339 12. "Probable cause" means less than evidence which would justify condemnation. It imports a sei- zure made under circumstances which warrant suspicion. Id. 339 13. A vessel of the United States captured, condemned, sold, and purchased by her former master, a citizen of the United States, who obtained a Danish burgher's brief, and who cleared out of a port of the United States as a Dane, is a foreign vessel within the 5th sec- tion of the act of 9th Jauuary, 1808, supplementary to the embar- go act; although she was really owned by a citizen of the United
States. Schooner Good Catharine v. United States, 14. Under the non-intercourse law a vessel, in March, 1811, had no right to come into the waters of the United States to enquire whe- ther she might land her cargo. Brig Penobscot v. U. States, 356 15. In a prosecution against a vessel for violating a law of the United States it is not necessary to adduce possitive testimony of the identity of the vessel. Schooner Jane v. United States, 363 16. The non-intercourse act of March 1st, 1809, was, by force of the act of May 1st, 1810, and the president's proclamation of No- vember, 2, 1810, revived on the 2d of February, 1811. The Au- rora v. United States. 383 Schr. Anne v. United States, 570 17. In a libel it is not necessary to negative any fact which constitutes the defence of the Claimant. Id. 383 18. Wines, the produce of France, imported into the United States before the non-intercourse act, re- exported to a Danish island, there sold to a merchant of that place, and thence exported to New Or- leans during the operation of that act of congress, were liable to for- feiture under that law. Schooner Hoppet v. United States, 389 19. An information in the admiralty
for a forfeiture must contain a sub- stantial statement of the offence. A general reference to the provi- sions of the stature is not sufficient. If the information be defective in that respect, the defect is not cured by evidence of the facts omitted to be averred in the infor- mation. The decree must be se- cundum allegata, as well as secun- dum probata. Schooner Hoppet v. United States,
20. By the 11th section of the act of 25th of April, 1808, vol. 9, p. 150, the collector had no right to detain a vessel and cargo after her ar rival at her port of destination, un-
2. The United States are not bound by the declarations of their agent, founded upon a mistake of fact, unless it clearly appear that the agent was acting within the scope of his authority, and was empow- ered in his capacity of agent to make such declaration. Lee v. Munroe and al.
366 3. It the Plaintiff, by orders from the Defendants, purchase goods for them and draw on them for the amount, they are bound to accept and pay his bills. If they do not, he may recover the amount there- of (and damages and costs, if he has paid the same) upon a count for money paid, laid out and ex- pended, and the bills of exchange may be given in evidence on that count. If, after protest of the bills, the Plaintiff sell the goods without orders, it shall not prejudice his right of action, although he render no account of sales to the Defen- dants. Riggs v. Lindsay,
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