States, and institute proceedings against the property, and show that there was lawful or probable cause for the seizure, and have the same adjudicated upon by some court of the United States having full jurisdiction in the matter; and that restitution of the goods or the value thereof may be awarded to the libelants, with damages for the unlawful seizure.

Captain Montgomery appeared and answered, and admitted that, as commander of the United States ship Portsmouth, he seized and took the Admittance at Saint Jose as lawful prize; and justifies the seizure upon the ground that 514*] she sailed from New Orleans with the design of trading with the enemy; that she did in fact hold illegal intercourse with them, and discharged a part of her cargo at Saint Jose. And the respondent exhibits with his answer, and as a part of it, sundry papers received from Peter Peterson, the master of the Admittance, together with her log-book and the deposition of her mate.

The respondent further states that it was impossible for him, consistently with the public interest, to send the Admittance to any port of the United States; and that he carried her before the Prize Court hereinbefore mentioned, at Monterey, where she was condemned with her cargo as lawful prize: and exhibits the proceedings of that court as a part of his answer, and relies on this condemnation as a bar to the present proceedings on behalf of the claim

ants.

To this answer the libelants put in two de

murrers.

1. To so much of the answer as relies upon the condemnation at Monterey as a bar.

2. To so much of the answer as relies upon the acts of the captain and crew of the Admittance as a justification for the seizure of the ship or cargo as lawful prize of war, or furnishing probable cause for seizure; and as the ground for this demurrer. avers that the Admiralty Court for the District of Columbia had no jurisdiction to adjudicate upon the question of prizes or probable cause of seizure, as the property was not within its control, and could not be brought within it in consequence of the sale in California. The respondent joined in these demurrers.

After these issues in law had been joined, the respondent, by leave of the court, amended his answer, averring in the amendment that the libelants, at the time of the shipment at New Orleans and at the time of the seizure, were domiciled in Mexico and conducting a commercial establishment in that country; and also, that the libelants were the owners of only a small portion of the cargo. But there is no replication to this amendment, nor is it embraced in the issues of law made by the demurrers. The omission to dispose of it, how ever, forms no objection to this appeal, as the judgment of the Circuit Court was final, and disposed of the whole case, independently of these new allegations.

In this state of the pleadings, a decree was entered in the District Court sustaining both of the demurrers, and directing the respondent to bring the cargo within the jurisdiction of some District Court of the United States, and institute proceedings against it as a prize of war, on or before the day mentioned in the decree;

and that in default thereof the libelants should recover its value.

This decree was entered pro forma in order to bring the case *before the Circuit [*515 Court, to which the respondent accordingly ap pealed. And upon the argument in the lastmentioned court, the first demurrer was 8113tained, and the decree of the District Court in that respect affirmed; but so much of the decreo as sustained the demurrer to the answer of the respondent, averring sufficient probable cause for the seizure of the cargo, was reversed, and a final decree upon that ground rendered against the libelants.

From this decree both parties have appealed to this court.

In relation to the proceedings in the court at Monterey which is the subject of the first demurrer, the decision of the Circuit Court is correct.

All captures jure belli are for the benefit of the sovereign under whose authority they are made; and the validity of the seizure and the question of prize or no prize can be determined in his own courts only, upon which he has conferred jurisdiction to try the question. And under the Constitution of the United States the judicial power of the general government is vested in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish. Every court of the United States, therefore, must derive its jurisdiction and judicial authority from the Constitution or the laws of the United States. And neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the laws of nations.

The courts, established or sanctioned in Mexico during the war by the commanders of the American forces, were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, an to protect the inhabitants in their persons and property while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudi cate upon a question of prize or no prize. And the sentence of condemnation in the court at Monterey is a nullity, and can have no effect upon the rights of any party.

The second demurrer denies the authority of the District Court to adjudicate, because the property had not been brought within its jurisdiction. But that proposition cannot be main. tained; and a Prize Court, when a proper case is made for its interposition, will proceed to adjudicate and condemn the captured property or award restitution, although it is not actually in the control of the court. It may always proceed in rem whenever the prize or proceeds of the prize can be traced to the hands of any person whatever.

*As a general rule, it is the duty of [*516 the captor to bring it within the jurisdiction of a Prize Court of the nation to which he belongs, and to institute proceedings to have it condemned. This is required by the Act of Congress in cases of capture by ships of war of the

United States; and this Act merely enforces the performance of a duty imposed upon the captor by the law of nations, which in all civilized countries secures to the captured a trial in a court of competent jurisdiction before he can finally be deprived of his property.

libelants might show themselves entitled to demand.

But if no sufficient cause is shown to justify the sale, and the conduct of the captor has been unjust and oppressive, the court may refuse to adjudicate upon the validity of the capture and award restitution and damages against the captor; although the seizure as prize was originally lawful, or made upon probable cause.

And the same rule prevails where the sale was justifiable, and the captor has delayed, for an unreasonable time, to institute proceedings to condemn it. Upon a libel filed by the cap tured, as for a marine trespass, the court will refuse to award a monition to proceed to adjudication on the question of prize or no prize, but will treat the captor as a wrongdoer from the beginning.

But in the case before us, sufficient cause for capture and condemnation is stated in the answer; and the reason assigned therein is a full justification for not sending the Admittance and her cargo to the United States. And as to the delay, he had reasonable ground for believing that no further proceedings were necessary after the condemnation at Monterey. The court had been constituted with the sanction of the Executive Department of the government, under whose orders he was acting; and it had condemned the vessel and cargo as prize, and ordered them to be sold. And if, as seems to be conceded in the argument, the proceeds were paid over to the government to await its further orders, and still remains in its hands, certainly no laches or neglect of duty in any respect can be imputed to the respond

ent.

517*] Inasmuch, therefore, as the answer alleges a sufficient cause for selling the property before condemnation, and also for not proceeding against it in a court of competent jurisdiction, the respondent has forfeited none of the rights which he acquired by the capture. And, as the District Court had jurisdiction, the second demurrer ought to have been overruled, and an order passed directing Captain Montgomery to institute proceedings by a certain day to condemn the property (giving him reasonable time); and that upon his failure to comply with the order, the court should proceed on the libel filed against him for a marine trespass, and award such damages as the

The necessity of proceeding to condemnation as prize, does not arise from any distinction between the Instance Court of Admiralty and the Prize Court. In England, they are different courts; and although the jurisdiction of each of them is always exercised by the same person, yet he holds the offices by different commissions. But, under the Constitution of the United States, the Instance Court of Admiralty and the Prize Court of Admiralty are the same court, acting under one commission. Still, however, the property cannot be condemned as prize, upon this libel; nor would its dismissal be equivalent to a condemnation, nor recognized as such in foreign courts. The libelants ble to capture; and their right to them cannot be devested until there is a sentence of condemnation against them as prize of war. And, as that sentence cannot be pronounced in the present form of the proceeding, it becomes necessary to proceed in the prize jurisdiction of the court, where the property may be condemned or acquitted by the sentence of the court, and the whole controversy be finally settled. 4 Cr. 241; Rose v. Himely, 2 Wheat. App. 41, 42; 1 Kent's Com. 101, 102; 6 Rob. 48; 3 Id. 192; 2 Gall. 368; 2 Id. 240.

But the Circuit Court erred in giving final judgment against the libelants, upon the ground that the answer showed probable grounds for the seizure. The question of probable cause is not presented in the present stage of the proceedings, and cannot arise until the validity of the capture is determined. If it turn out, upon the final hearing upon the question of prize or no prize, that the vessel and cargo were liable to capture and condemnation, it would necessarily follow that there was not only probable cause, but good and sufficient cause, for the seizure. And if, on the contrary, it should be found that they were not liable to capture, as prize of war, the libelants would be entitled to restitution, or the value in damages, although the strongest probabilities appeared against them at the time of the seizure. Probable cause or not becomes material only where restitution is awarded, and the [*518 libelants claim additional damages for the injury and expenses sustained from the seizure and detention. It applies only to these additional damages; and however strong the grounds of suspicion may have been, it is no bar to restitution, if the claimant can show that the goods which he claims belonged to him, were neutral, and that nothing had been done that subjected them to capture and condemnation.

The judgment of the Circuit Court must therefore be reversed, and a mandate awarded, directing the case to be remanded to the District Court, to be there proceeded in according to the rules and principles stated in this opinion.

The appeal on the part of the respondent is dismissed. The decision upon the matter in controversy was in his favor, and the question of law decided against him on the first demurrer, was open for argument upon the appeal of the libelants. There was no ground, therefore, for this appeal.

Order in Jecker et al. v. Montgomery. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, for further proceedings to be had therein in conformity to the opinion of this court.

Orde in Montgomery v. Jecker et al. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that this cause be, and the same is hereby dismissed, with costs.

the United States, could not be sustained; but a proceeding against it, on the ground of a private instance of an individual or a corporation, either and irreparable injury, may be sustained, at the in the Federal or State Courts. ful and the injury irreparable, by a suit at common law, the injured party may claim the extraordinary protection of a court of chancery. The Ohio is a navigable stream, subject to the ercised over it; and, if the Act of Virginia authorcommercial power of Congress, which has been exized the structure of the bridge, so as to obstruct navigation, it would afford no justification to the Bridge Company.

In case of nuisance, if the obstruction be unlaw.

Congress has sanctioned the compact made between Virginia and Kentucky, viz.: "That the use and navigation of the River Ohio, so far as the Territory of Virginia or Kentucky is concerned, shall be free and common to the citizens of the United States.' This compact is obligatory, and can be carried out by this court. nuisance, a court of equity will interfere by inWhere there is a private injury from a public junction.

In this case, the bridge is a nuisance. This is of the water, and of the chimneys of the boats. shown by measuring the height of the bridge, and The report of the commissioner, appointed by this court to ascertain these facts, is equivalent to the verdict of the jury.

The report of the commissioner adverted to and commented upon; the extent of injury sustained by the boats explained; and the importance shown of maintaining the navigation of the river.

If a structure be declared to be a nuisance, there is no room for a calculation and comparison be

ant,

F.

THE WHEELING AND BELMONT BRIDGE COMPANY, William Otterson, and George Croft.

Therefore, unless there be an elevation of the lowest parts of the bridge for three hundred feet over the channel of the river-not less than one hundred and eleven feet from the low water mark, mini of the elevation at the rate of four feet in the the flooring of the bridge descending from the terhundred or some other plan shall be adopted which shall relieve the navigation from obstruc

tion, on or before the first of February next-the

bridge must be abated.

The Bridge Company may, upon their own responsibility, try whether the western channel can draw, so as to afford a safe and unobstructed navi. be improved and made passable, by means of a

It is admitted that the federal courts have no jurisdiction of common law offenses, and that there is no abstract, pervading principle, of the common law of the Union under which this court can take juris liction; and that the case under consideration is subject to the same rules of action as if the sult bad been commenced in the Circuit Court for the District of Virginia.

But chancery jurisdiction is conferred on the courts of the United States by the Constitution, under certain limitations; and, under these limitations. the usages of the High Court of Chancery. in England, which have been adopted as rules by

this court, furnish the chancery law which is exercised in all the States, and even in those where no state chancery system exists.

Under this system, where relief can be given by the English chancery, similar relief may be given by the courts of the Union.

An indictment against a bridge, as a nuisance, by

NOTE. When an injunction will be granted against a nuisance-see note to Irwin v. Dixion, 13 L. ed. U. S. 25.

Legislation authorizing bridges upon navigable rivers-The extent and effect of the decision of this case explained, Silliman v. Hudson Riv. Br. Co. 4 Blatchf. 395.

Legislative right to authorize the bridging of navigable waters-see note, 59 L.R.A. 64.

It is noticed in 9 Howard, 647, and again in 11 Howard, 528.

In 9 Howard, a statement is given of the contents of the bill and answer, and of [*520 the proceedings in the case, up to the time of its reference to a commissioner, for the purpose of taking further proofs upon the points there

in stated. The reader is referred to that volume for these proceedings.

In that report it is mentioned that a notice of the arguments of counsel was deferred until the final decision of the case.

That final decision having taken place at this erm, it is proper now to note as briefly as poɛsible the grounds assumed by the respective counsel.

The points made and authorities cited by the counsel for the plaintiff, were the following, viz.:

1. That the Ohio River is a public highway

of commerce, which, under the Constitution of the United States, has been regulated by Congress. Journal of Congress, Vol. IV., 637, 638; Ordinance of 1787, art. 4; Act of Congress admitting Kentucky, 1 Stat. at Large, 189; Virginia Act of Assembly, 18 Dec. 1789, Rev. Code, 1819, 57; Acts of Congress for enrolling and licensing ships or vessels to be employed in the coasting trade, and for regulating the same, 1 Stat. at Large, 305; Act of Congress authorizing duties to be paid at ports on the Ohio, 4 Stat. at Large, 480; Act of Congress to improve the navigation of the Ohio River, 4 Stat. at Large, 32; Acts of Congress providing for inspection, etc., of steamboats, 5 Stat. at Large, 304; Committee Report No. 672, in the House of Representatives, 24th Congress; Report No. 993, 25th Congress, on a bridge at Wheeling; Report No. 79, 28th Congress, 1st session, on a bridge at Wheeling; Pennsylvania Resolutions, Vol. XXIX., Pa. Laws, 487, on a bridge at Wheeling; Pennsylvania Resolutions, Vol. XXXI., Pa. Laws, 591, on the Wheeling Bridge; 42 Ohio Laws, 269; Green v. Biddle, 8 Wheat. 1; Gordon's Digest, 15, 27, 176, 191, 325, 343, 428; 2 Madison Papers, 599, 602, 606, 614, 623, 627, 677; Resolutions of General Assembly of Virginia, November, 1786; Resolution offered by delegates from North Carolina, in Congress, September, 1788, relative to the navigation of the Mississippi, Journal of Congress, 1788; Resolution of Congress, on the same subject, September, 1788, Journal of Congress, 1788; 2 Madison Papers, 678; Act providing for sale of Public Land, 1 Stat. at Large, 464, sec. 6; Lyman's American Diplomacy, 300, 303, 310, 311, 315; Report on Commerce and Navigation, December 31, 1849.

2. That free navigation of the Ohio River, as a common highway, having been established by regulations of Congress, and by compact between the states, it cannot lawfully be obstructed by force of any state authority or legislation. Constitution of the United States, art. 1, sec. 8, clauses 2, 4, 17; sec. 9, clause 5; 521*] *sec. 10, clause 2; art. 6, 1st clause; Gibbons v. Ogden, 9 Wheat. 1; Brown v. State of Maryland, 12 Wheaton, 419; Wilson v. Black Bird Creek Marsh Co. 2 Peters, 245; Charles River Bridge v. Warren Bridge, 11 Peters, 540, 542, 604; Norris v. Boston, 7 Howard's United States Rep. 283; Groves v. Slaughter, 15 Peters, 506; Houston v. Moore, 5 Wheaton, 22; Worcester v. Georgia, 6 Peters, 515; Spooner v. McConnell, 1 McLean's Rep. 359; United States v. New Bedford Bridge, 1 Wood. & M. 401, and authorities there cited; Corfield v. Coryell, 4 Wash. C. C. 379; Holmes v. Jennison, 14 Pet. 540; Livingston v. North R. S. B. Co. 3 Cow. 713.

3. That inasmuch as the Wheeling Bridge has been found by the commissioner's report to be an obstruction to the free navigation of the Ohio River, it is a public nuisance that may be abated by a court of equity on complaint of an injured party. Hargrave's Tract, De Jure Maris, 9, 22, 35, 87; 3 Thomas's Co. Litt. 4; 2 Story's Equity, secs. 920, 921, 924; Eden on Injunctions, 157, 158, 160, 161, 222, 228; Drewry on Injunctions, 237, 240, 249, 294; City of Georgetown v. Alexandria Canal Co. 12 Peters, 91; Blakemore v. Glamorganshire Canal

Co. 1 Myl. & Keen, 164; 1 McLean, 359: 3 McLean, 226; 1 Wood. & M. 401; Shelford on Railways, 428, 445, and cases there cited: Robinson v. Lord Byron, 1 Bro. C. C. 588: Lane v. Newdigate, 10 Vesey, 192; Spencer v. London and Birmingham Railway Co. 1 Railway C. 170; Attorney-General v. Manches ter Railway, 1 Railway C. 436; North of England Railway v. Clarence Railway, 1 Coll. C. C. 521; Angell on Water-courses, 201, 208, 209, 213; Attorney-General v. Burridge, 10 Price, 350; Attorney-General v. Parmeter, Id. 378; Attorney-General v. Johnson, 2 Wils. Ch. R. 87; Attorney-General v. Forbes, 2 Myl. & Craig, 123; Attorney-General v. The Cohoes Co. 6 Paige, Ch. 133; Spencer v. The Railway Co. 8 Simons, 193; Corning v. Lowerre, 6 Johns. Ch. 439; Boston Water Power Co. v. Boston & W. Railroad, 16 Pick. 525; Barrow v. Richards, 8 Paige Ch. 351; Livingston v. Mayor of New York, 8 Wend. 99; Bush v. Warren, Prec. Ch. 530; 2 Story's Equity, p. 252: 2 Ans. 603; 2 Starkie's Rep. 448: United States Const. arts. 3, sec. 1, 2; Walford on Railways, 408; Shelford on Railways, 430; 1 Railway Cases, 68, 576; 2 Railway Cases, 380; 2 Younge & Coll. 611; Attorney-General v. Utica Ins. Co. 2 Johns. Ch. Rep. 379; 1 Baldwin, 205; 1 Swanston, 250; 1 Mylne & Keen, 164; 3 Howard's United States Rep. 229; Pennsyl vania v. Wheeling Bridge, before Judge Grier, Pamphlet Reports.

4. That for an injury to a state, she may maintain a suit in a court of competent jurisdiction. King of France v. Morris, *3 [*522 Yeates, 251; King of Spain v. Oliver, Peters's C. C. R. 276; Nabob of The Carnatic v. East India Co. 1 Ves. Jr. 382; Don Diego v. Jolyfe, Hobart, 86; Colombian Government v. Rothschild, 1 Sim. 94; Duke of Brunswick v. King of Hanover, 6 Beav. 1: Story's Equity Pl. sec. 55; Rhode Island v. Massachusetts, 12 Pet. 720; 4 How. 592; Vattel, book 3, chap. 6, secs. 22, 23, 49, 50, 60, 65, 71; Wheaton's International Law, 81, 82; Lieber's Political Ethics, 2, 5, 48, book 2, 196; Whewell's Elements, 2, 5, 849; Mayor of New Orleans v. The United States, 10 Peters, 672; New Jersey v. Wilson, 7 Cranch, 164; United States Constitution, art. 3.

5. That the equitable powers of the Supreme Court of the United States are adequate to grant relief against a public nuisance, and where a state is a party to the suit, that court has original jurisdiction. United States Const. art. 3, secs. 1, 2; City of Georgetown v. Alexandria Canal, 12 Peters, 91; Story's Commentaries, 570; Federalist, No. 80; Osborn v. Bank of United States, 9 Wheaton, 839; Bank of United States v. Planters' Bank, 9 Wheat. 904.

The following extract contains the views of Mr. Stanton, one of the counsel for the complainant:

It is my design to present, as briefly as I can, the grounds on which the State of Pennsyl vania prosecutes this suit and claims relief of this court. That purpose will be served by the discussion of a single proposition which will embrace all the points made, viz.:

That the Ohio River is a highway of commerce leading to and from the ports of Pennsylvania, regulated by Congress; unlawfully obstructed by the Wheeling Bridge, to the