¶1A final condemnation in an inferior court of admiralty, where a right of appeal exists and has been claimed, is not a definitive condemnation within the meaning of the 4th article of the convention with France, signed Sept. 30, 1800.
¶2The court is as much bound as the executive to take notice of a treaty, and will reverse the original decree of condemnation (although it was *104correct when made) and decree restoration of the property under the treaty made since the original condemnation.
¶3*103Error to the circuit court for the district of Connecticut, on a question of prize.
¶4The facts found and stated by judge Law, the district judge, were as follow:
¶5“ That the ship Trumbull, duly commissioned by the “ President of the United States, with instructions to take “ any armed French vessel or vessels sailing under autho- “ rity, or pretence of authority from the French republic, “ which shall be found within the jurisdictional limits of “ the United States, or elsewhere on the high seas, &c. as set “ forth in said instructions; and said ship did on the 24th “ day of April last (April 1800) capture the schooner Peg- “ gy, after running her ashore a few miles to the westward “ of Port au Prince, within the dominions and territory of “ General Toussaint, and has brought her into port as set forth in the libel, and it further appears that all the facts, “ contained in the claim, are true†; whereupon this court *104“ are of opinion that as it appears that the said schooner “ was solely upon a trading voyage and sailed under the “ permission of Toussaint with dispatches for the French “ government, under a convoy furnished by Toussaint, “ with directions to touch at Leogane for supplies, and “ that the arms she had on board must be presumed to be “ only for self defence; neither does it appear she had ever “ made, or attempted to make, any depredations, and that “ she was not such an armed vessel as was meant and in- “ tended by the laws of the United States should be sub- “ ject to capture and condemnation; and that the situa- “ tion she was in, at the time of capture, being aground “ within the territory and jurisdiction of Toussaint, she was “ not on the high seas, so as to be intended to be within “ the instructions given to the commanders of American “ ships of war: Therefore, adjudge said schooner is not “ a lawful prize, and decree that said schooner with her “ cargo be restored to claimant.”
¶6Quere. As to the extent of the term high seas?
¶7From this decree the attorney for the United States, in behalf of the United States and the commander, officers and crew of the Trumbull, appealed to the circuit court, in which Judge Cushing sat alone, as the district judge declined sitting in the cause, on account of the interest of his son who was one of the officers on board the Trumbull, at the time of capture, and who, if the schooner should be condemned, would be entitled to a share of the prize money.
¶8The circuit court on the appeal found the following facts, and gave the following opinion and decree:
¶9*105“ That David Jewitt, commander of the said public “ armed vessel, called the Trumbull, being duly commis- “ sioned, and instructed by the President of the United “ States, as set forth in the said libel, did on or about the “ 23d of April last, capture the said schooner Peggy, af- “ ter running her aground about pistol shot from the shore, “ a few miles to the westward of Port au Prince, called “ also Port Republican, on the coast of the island of Saint “ Domingo, and afterwards bring her into port, as set “ forth in the libel. That at the time of the capture of “ the said schooner there were ten persons aboard her. “ That she was then armed with four carriage guns, be- “ ing four pounders, with four swivel guns, six mus- “ kets, four pistols, four cutlasses, two axes, some board- “ ing hatchets, tommahawks, and handcuffs. That she “ was a trading French vessel of about a hundred tons, “ then laden with coffee, sugar, and other merchandize. “ That she had come from Bourdeaux to Port au Prince, “ where the claimant had taken in said cargo, and from “ whence he sailed on or about the said 23d day of April “ with said schooner and cargo, having dispatches from “ general Toussaint for the French government. That “ the said Buisson sailed from Port au Prince as aforesaid “ with the permission and direction of general Toussaint “ to proceed to Bourdeaux; that said schooner so sailed “ from Port au Prince under convoy of an armed vessel “ by order of said Toussaint without a passport from Mr. “ Stevens, consul general of the United States at Saint “ Domingo, but that Buisson had been promised by Tous- “ saint’s brother that one should be obtained and sent him, “ which, however, was not done; that said schooner had “ sailed from Bourdeaux for Port au Prince with fifteen “ men, besides eight passengers (according to the roll of “ equipage) armed with some guns, swivels and muskets; “ that said captain Buisson was without any commission as “ for a vessel of war, and alleges that he was armed on- “ ly for self defence. That at the time of said capture, “ the guns of said schooner were loaded with cannister “ shot, one of which being fired, the shot fell near the “ bow of the Trumbull; but the said Buisson declares “ that said gun was fired only as a signal to his convoy. “ That the said captain Buisson appeared to be in a dis- “ position, and was prepared with force to resist the boats “ which were sent from the Trumbull to board him, a lit- *106“ tle previous to the capture, in case of their attempting “ it; and that the said schooner and cargo are French “ property.
¶10“ Upon these facts the court is of opinion as follows, “ viz.
¶11“ However compassion may be moved in favour of “ the claimant by some circumstances; such as that he “ was charged with dispatches from general Toussaint, “ between whom and the United States there were “ some friendly arrangements respecting commerce; that “ he was not in a capacity of greatly annoying trade, “ from the fewness of his men; and his allegation that “ he was armed only in defence; yet as the court is bound “ by law, which makes no such distinctions; as armed “ French vessels are not protected by any treaty or con- “ vention; particularly not by the regulations between “ general Toussaint and the American consul; and as the “ said schooner Peggy was in a condition capable of an- “ noying, and even of capturing single, unarmed trading “ vessels, unattended with convoy; The court cannot “ avoid being of opinion, that she falls within the de- “ scription, and general design, of the expression of the “ law, an armed French vessel.
¶122dly. That she was captured on the high seas: the ar- “ gument taken by the claimants counsel, from the extent “ of national jurisdiction on sea coasts bordering on “ the country, not applying to this case so as to ac- “ quit the said schooner; the sea coast of Saint Domingo, “ not being neutral; not made so by any treaty or con- “ vention; but to be considered as hostile, upon our pre- “ sent plan of laws of defence with respect to France; “ as much so as any part of the coast of France, as far as “ regards French armed vessels.
¶13“ The court is therefore of opinion that the said “ schooner Peggy and cargo are lawful prize:
¶14“ It is therefore considered, decreed and adjudged by “ this court, that the decree of the district court respect- “ ing the same, as far as regards their acquittal, be, and “ the same is hereby reversed; and that the said schoon- *107" er with her apparel, guns and appurtenances, and the “ goods and effects which were found on board of her “ at the time of capture, and brought into port as afore- “ said, be and the same are hereby condemned as forfeited “ to the use of the United States, and of the officers and “ men of the said armed vessel called the Trumbull, one “ half thereof to the United States, the other half to the “ officers and men to be divided according to law; the “ said schooner Peggy being of inferior force to the said “ armed vessel called the Trumbull.”
¶15This sentence and decree were pronounced on the 23d day of September, 1800.
¶16During the present term, and before the court gave judgment upon this writ of error, viz. on the 21st of December, 1801, the convention with France was finally ratified by the President; the fourth article of which convention has these words:
¶17“ Property captured, and not yet definitively condemn- “ ed, or which may be captured before the exchange of “ ratifications, (contraband goods destined to an enemy’s “ port excepted) shall be mutually restored.” “ This ar- “ ticle shall take effect from the date of the signature of “ the present convention. And if, from the date of the “ said signature, any property shall be condemned con- “ trary to the intent of the said convention, before the “ knowledge of this stipulation shall be obtained; the “ property so condemned shall without delay be restored “ or paid for.”
¶18On the 30th of September, 1800, this convention was signed by the respective plenipotentiaries of the two nations at Paris. On the 18th of February, 1801, it was ratified by the President of the United States, with the advice and consent of the Senate, excepting the 2d article, and with a limitation of the duration of the convention to the term of eight years. On the 31st of July, 1801, the ratifications were exchanged at Paris, with a proviso that the expunging of the 2d article should be considered as a renunciation of the respective pretensions which were the object of that article.
¶19*108This proviso being considered by the President as requiring a renewal of the assent of the Senate, he sent it to them for their advice. They returned it with a resolve that they considered the convention as fully ratified.
¶20Whereupon,
¶21On the 21st of December, 1801, it was promulged by a proclamation of the President.
¶22The controversy turned principally upon two points:
¶231st. Whether the capture could be considered as made on the high seas, according to the import of that term as used in the act of congress of July 9th, 1798, vol. 4. p. 163.
¶242d. Whether, by the sentence of condemnation by the circuit court on the 23d of September, 1800, the schooner Peggy could be considered as definitively condemned, within the meaning of the 4th article of the convention with France, signed at Paris on the 30th of September, 1800.
¶25The writ of error was dated on the 2d of October, 1800.
¶26Griswold and Bayard, for the captors.
¶31delivered the opinion of the court.
¶32In this case the court is of opinion that the schooner Peggy is within the provisions of the treaty entered into with France and ought to be restored. This vessel is not considered as being definitively condemned. The argument at the bar which contends that because the sentence of the circuit court is denominated a final sentence, therefore its condemnation is definitive in the sense in which that term is used in the treaty, is not deemed a correct argument. A decree or sentence may be interlocutory or final in the court which pronounces it, and receives its *109appellation from its determining the power of that particular court over the subject to which it applies, or being only an intermediate order subject to the future control of the same court. The last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under. The terms used in the treaty seem to apply to the actual condition of the property and to direct a restoration of that which is still in controversy between the parties. On any other construction the word definitive would be rendered useless and inoperative. Vessels are seldom if ever condemned but by a final sentence. An interlocutary order for a sale is not a condemnation. A stipulation then for the restoration of vessels not yet condemned, would on this construction comprehend as many cases as a stipulation for the restoration of such as are not yet definitively condemned. Every condemnation is final as to the court which pronounces it, and no other difference is perceived between a condemnation and a final condemnation, than that the one terminates definitively the controversy between the parties and the other leaves that controversy still depending. In this case the sentence of condemnation was appealed from, it might have been reversed, and therefore was not such a sentence as in the contemplation of the contracting parties, on a fair and honest construction of the contract, was designated as a definitive condemnation.
¶33It has been urged that the court can take no notice of the stipulation for the restoration of property not yet definitively condemned, that the judges can only enquire whether the sentence was erroneous when delivered, and that if the judgment was correct it cannot be made otherwise by any thing subsequent to its rendition.
¶34The constitution of the United States declares a treaty to be the law of the land · Case Law">supreme law of the land. Of consequence its obligation on the courts of the United States must be admitted. It is certainly true that the execution of a contract between nations is to be demanded from, and, in the general, superintended by the executive of each nation, and therefore, whatever the decision of this court may be relative to the rights of parties litigating before it, the claim upon the nation if unsatisfied, may still be asserted. *110But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of congress; and although restoration may be an executive, when viewed as a substantive, act independent of, and unconnected with, other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and of consequence, improper.
¶35It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns where individual rights, acquired by war, are sacrificed for national purposes, the contract, making the sacrifice, ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.