Joseph Story

“ Since the law requires a thing to be done, and gives the writ of error, as the means by which it is to be done, without prescribing in this particular the manner in which the writ is to be used, it appears to the court to be perfectly clear that the writ must be so used as to effect the object. It may then be directed to either court in which the record and judgment on which it is to act may be found. ”

“ But assuming it to be good law in respect to criminal suits, it has nothing to do with proceedings in rem. Where property is seized and libelled as forfeited to the government, the sole object of the suit is to ascertain whether the seizure be rightful, and the forfeiture incurred or not. The decree of the court, in such case, acts upon the thing itself, and binds the interests of all the world, whether any party actually appears or not. ”

“ Congress might be perfectly willing to entrust the president with the power to take and detain, whenever, in his opinion, the case was so flagrant that military or naval force was necessary to enforce the laws, and yet with great propriety deny it, where, from circumstances of the case, the civil officers of the government might, upon their private responsibility, without any danger to the public peace, completely execute them. ”

“ If the action be commenced after a decree of condemnation, or after an acquittal, and there be a certificate of reasonable cause of seizure, then in the former case by the general law, and in the latter case by the special enactment of the statute of the 25th of April, 1810, ch. 64. s. 1. the decree and certificate are each good bars to the action. But if there be a decree of acquittal and a denial of such certificate, then the seizure is established conclusively to be tortious, and the party is entitled to his full damages for the injury. ”

“ And the court, therefore, in virtue of the writ of error in this cause, do proceed and take cognizance of this cause upon the transcript of the record now remaining in the supreme court of judicature of the people of the state of New-York ”

“ This view of the case would be conclusive against the admission of the evidence offered by the original defendants at the trial, as a justification of the asserted trespass. But the other point which has been stated, and which involves the construction of the act of 1794, ch. 50, s. 3. is not less decisive against the defendants. ”

“ Baron Price, (12 Vin. Abridgment, A B. 22. p. 95.) that an acquittal in the exchequer was conclusive evidence of the illegality of the seizure, and he refused in that case (which was trover for the goods seized) to let the parties in to contest the fact over again. This case was cited as undoubted law by Mr. Justice Blackstone, in his elaborate opinion, in Scott v. Shearman, (2 W. Bl. 977.;) and the doctrine was fully recognized by the court, and particularly by Lord Kenyon, in Cooke v. Sholl, (5 T. R. 255.) ”

“ The original defendants (having given previous notice of the special matter of defence to be given in evidence on the trial under the general issue, according to the laws of New-York,) offered to prove and give in evidence, by the way of defence and in mitigation of damages, the same matter of forfeiture alleged in their first special plea, with the additional fact that the said Gelston was collector, and the said Schenck was surveyor of the customs of the district of New-York, and as such, and not otherwise, made the seizure of the ship, &c. ”

“ In the absence of all positive authority, it might be proper to resort to these principles, in aid of the manifest purposes of the law. But there are express statuteable provisions, which directly apply to the present case. ”