on principle, but the most liberal and honarable to 1816. the jurisprudence of this country. Houston Farther proof ordered.a Moore. Mr. Justice TODD and Mr. Justice DUVALL did not sit in this cause. (PRACTICE.) HOUSTON V. MOORE The court has no jurisdiction under the 25th section of the judiciary act' of 1789, ch. 20: unless the judgment, or decree, òf the state court be a final judgment or decree. A judgment reversing that of an inferio court, and awarding a venire facias de novo is not a final judgment. ERROR to the supreme court of the state of Penn sylvania. This was an action of trespass, brought by the plaintiff in error against the defendant in error, for levying a fine ordered to be collected by the sentence of a court martial, under an act of the legislature of the state of Pennsylvania, which was alleged to be repugnant to the constitution and laws of the United States. The suit was commenced in the court of common pleas for the county of Lancaster, in which court a trial was had, and the jury, under the charge of the court, found a verdict for the plaintiff, on which VOL. III. 56 1818. Houston V. Moore. Feb. 28the judgment was rendered. The cause was carried to the supreme court of the state of Pennsylvania, by writ of error, where the judgment of the court of common pleas was reversed, and the cause remanded to that court, with directions to award a venire facias de novo. The plaintiff then sued out of a writ of error, to bring the cause to this court. Mr. C. J. Ingersoll moved to dismiss the writ of error, as having been improvidently issued under the 25th section of the judiciary act, ch. 20. the decision of the state court not being a "final judgment" in the cause.. Mr. Hopkins, contra. Mr. Ch. J. MARSHALL delivered the opinion of the court. The appellate jurisdiction of this court, under the 25th section of the judiciary act, ch. 20. extends only to a final judgment or decree of the highest courts of law or equity in the cases specified. This is not a final judgment of the supreme court of Pennsylvania. The cause may yet be finally determined in favour of the plaintff in the state court. Writ of error dissed. JUDGMENT, This cause came on to be heard on the transcript of the record of the supreme court of the commonwealth of Pennsylvania, for the Lancas ter district. On examination whereof, it is adjudged and ordered, that the writ of error in this cause be and the same is hereby dismissed, this court not hav ing jurisdiction in said cause, there not having been a final judgment in said suit, in the said supreme court of the commonwealth of Pennsylvania.a a Costs are not given where the writ of error is dismissed for want of jurisdiction. Inglee v. Coolidge, ante, vol. II. p. 368. 1818. The Anne. (PRIZE.) The ANNE, Barnabeu, Claimant. The captors are competent witnesses upon an order for farther proof, where the benefit of it is extended to both parties. The captors are always competent witnesses, as to the circumstances of the capture, whether it be joint, collusive, or within neutral territory. It is not competent for a neutral consul, without the special authority of his government, to interpose a claim on account of the violation of territorial jurisdiction of his country. Quare, Whether such a claim can be interposed, even by a public minister, without the sanction of the government in whose tribunals the cause is pending? A capture, made within neutral territory, is, as between the belligerents, rightful; and its validity can only be questioned by the neutral state. If the captured vessel commences hostilities upon the captor, she APPEAL to the circuit court of the district of Maryand. 1818. The Anne. The British ship Anne, with a cargo belonging to a British subject, was captured by the privateer Ultor, while lying at anchor near the Spanish part of the island of St. Domingo, on the 13th of March, 1815, and carried into New-York for adjudication. The master and supercargo were put on shore at St. Domingo, and all the rest of the crew, except the mate, carponter, and cook, were put on board the capturing ship. After arrival at New-York, the deposition of the cook only was taken, before a commissioner of prize, and that, together with the ship's papers, was transmitted by the commissioner, under seal, to the district judge of Maryland district, to which district the Anne was removed, by virtue of the provisions of the act of congress of the 27th of January, 1813, ch. 478. Prize proceedings were duly instituted against the ship and cargo, and a claim was afterwards interposed in behalf of the Spanish consul, claiming resti tution of the property, on account of an asserted vi olation of the neutral territory of Spain. The testimpny of the carpenter was thereupon taken by the claimant, and the captors were also admitted to give testimony as to the circumstances of the capture; and, upon the whole evidence, the district court rejected the claim, and pronounced a sentence of condemnation to the captors. Upon appeal to the circuit court, peace having taken place, the British owner, Mr. Richard Scott, interposed a claim for the property, and the decree of the district court was affirmed, pro forma, to bring the cause for a final adjudication before this court Mr. Harper, for the appellant and claimant, argued, 1818. that the captors were incompetent witnesses, on the The Anne. ground of interest, except when farther proof was im parted to them ;a and that they were not entitled to- March 5th. the benefit of farther proof in this case, being in delicto. The irregularity of their proceedings, and the violation of the neutral territory, would not only exclude them from farther proof, but forfeit their rights of prize. The testimony being irregular, it must appear, affirmatively, that it was taken by consent, where the irregularity consists, not in a mere òmission of form, but in the incompetency or irrelevancy of the evidence. The testimony of the captors being excluded from the case, the violation of the neutral territory would appear uncontradicted. The text writers affirm the immunity of the neutral territory from hostile operations in its ports, bays, and harbours, and within the range of cannon shot along its coasts.b Nor can it be used as a station from which to exercise hostilities.c As to the authority by which the claim was interposed, the Spanish consul's was sufficient for that purpose; especially under the peculiar circumstances of the times when, on account of the unsettled state of the government in Spain, no minister. from that country was received by our government, a The Adriana, 1 Rob. 34. The Haabet, 6 Rob. 54. L'Amitie, 1d. 269. note (a.) b Vattel, L. 3. ch. 7. § 132. Id. L. 1. ch. 23. § 289. Bynk. Q, J. Pub. L. 1 c. s. Martens L. 8. s, ch. 6. § 6. Azuni, part 2. ch. 5. art. 1. § 15. The Twee Gebroeders, 3 Rob. 162. The Anna, 5 Rob. |