CH. XXXVIII.]
JUDICIARY—JURISDICTION.
529
becomes responsible to the parties aggrieved; and if every remedy is refused, it then becomes a subject for the consideration of the nation, to which the parties aggrieved belong, which may vindicate their rights, either by a peaceful appeal to negotiation, or a resort to arms.
§ 1662. It is obvious upon the slightest consideration, that cognizance of all questions of prize, made under the authority of the United States, ought to belong exclusively to the national courts. How, otherwise, can the legality of the captures be satisfactorily ascertained, or deliberately vindicated? It seems not only a natural, but a necessary appendage to the power of war, and negotiation with foreign nations. It would otherwise follow, that the peace of the whole nation might be put at hazard at any time by the misconduct of one of its members. It could neither restore upon an illegal capture; nor in many cases afford any adequate redress for the wrong; nor punish the aggressor. It would be powerless and palsied. It could not perform, or compel the performance of the duties required by the law of nations. It would be a sovereign without any solid attribute of sovereignty; and move in vinculis only to betray its imbecility. Even under the confederation, the power to decide upon questions of capture and prize was exclusively conferred in the last resort upon the national court of appeals.[1] But like all other powers conferred by that instrument, it was totally disregarded, wherever it interfered with state policy, or with extensive popular interests. We have seen, that the sentences of the- ↑ Confederation, Art. 9.
Bingham v. Cabot, 3 Dall. 19; La Amistad de Rues, 5 Wheat. R. 385; 1 Kent's Comm. Lect. 17, p. 334, (2 edition, p. 356.)
vol. iii.67
