
3 U.S. 19 (____)
3 Dall. 19
BINGHAM, Plaintiff in Err.
versus
CABBOT et al.
Supreme Court of United States.

*25 For the Plaintiff in Error.
For the Plaintiff in Error.
*32 On the 27th of February, the Court delivered their opinion to the following effect.
PATTERSON, Justice.
Considering, as I do, that all the papers transmitted from the Circuit Court, upon a return to the writ of error, form a part of the record in this cause, I am clearly of opinion, that the subject matter of the controversy, is fully and exclusively of Admiralty jurisdiction.
IREDELL, Justice.
I find it difficult, to form an opinion on the question of jurisdiction, at this stage of the cause. I concur in thinking, however, that all the papers, which accompany the record, should be considered as a part of it; and, in relation to the original suit, it appears to me, that on the evidence exhibited by Mr. Bingham, to shew that he acted under the orders of the Marquis de Bouille, the Judge should have charged, and the jury should have found, that he was not responsible to the plaintiffs.
But, still, I am not ready at this moment to decide, that *33 the Circuit Court had no jurisdiction. Suppose the Plaintiffs below had expressly stated in their declaration, that their cause of action was a capture as prize; the court would, probably, have directed a nonsuit; and yet, if the Plaintiffs had persisted in answering when called, the jury must have given a verdict. Suppose, again, that the controversy had appeared from the Defendant's evidence to turn entirely upon the question of prize, the court could not, I conceive (though I speak here with great diffidence) direct the Plaintiffs to be nonsuited, merely on the Defendant's evidence; and, unless a juror had been withdrawn by consent, a verdict must, also, have been given in this event. It will not be sufficient to remark, that the court might charge the jury to find for the Defendant; because, though the jury will generally respect the sentiments of the court on points of law, they are not bound to deliver a verdict conformably to them. From these, and other considerations, I do not find myself at liberty to decide against the jurisdiction of the Circuit Court; though, I repeat, that the jury ought to have been let in to give a verdict in favor of the Defendant.
WILSON, Justice.
From the proceedings laid before the Court, it appears clearly to my mind, that the question, on which the cause must be decided, is exclusively of Admiralty jurisdiction.
CUSHING, Justice.
It does not appear to me, from any part of the record, that the Circuit Court had not jurisdiction on the third Count in the declaration. The papers and depositions that have been transmitted, were, no doubt, produced upon the trial; and, I agree, that they ought to be regarded as a part of the record. But we are not bound to receive for truth, every thing which they alledge; nor, indeed, can we give any of their statements the validity and force of a fact; since, they only amount to evidence; and it is the peculiar and exclusive province of the jury to infer facts from the evidence.
That the court had not jurisdiction on those Counts, which seem to refer to a question of prize, is no reason for excluding a jurisdiction upon the Count, which has no such reference. The contract might be of a different nature; and the parol testimony (which does not appear, in any shape, on the record) might have supported it.
THE COURT, being thus equally divided in their opinions, on the exception to the jurisdiction, directed the Counsel to proceed to the discussion of
II. The Exceptions to the Record.
*39 The Judges, after some advisement, delivered their opinions, Seriasim.
PATTERSON, Justice.
I am clearly of opinion, that the certificate of the Marquis de Bouille, registered in the Admiralty of Martinique, ought to have been admitted as evidence upon the trial of this cause. He was Governor of the Island, possessing a high executive and superintending controul; and we must presume, that he acted, on this occasion, with legitimate authority.
Those letters which were written to Congress by Mr. Bingham, at the time of the transaction, should, likewise, in my opinion, have been submitted to the Jury. On the arrival of the captured vessel, the Governor might have awarded absolute restitution: but, chusing to adopt a middle course, he directed the cargo to be sold, and the proceeds to remain in the hands of Mr. Bingham, as the Agent of Congress, till Congress should instruct him how to act. In the character of a public agent, therefore, Mr. Bingham received the property; and his cotemporaneous correspondence on the subject, in that character, with the American government, was, certainly, proper evidence, to shew the original nature and complexion of the facts in controversy. I have more doubts on the admissibility of the other letters referred to in the Bill of Exceptions; but, in relation to them, it is unnecessary to give a decided opinion.
With respect to the Resolutions of Congress, two questions may be proposed, in order to determine, whether they ought to have been admitted as evidence: I. Had Congress authority *40 to pass such Resolutions? and 2. Did the Resolutions relate to the subject of the controversy? I have lately had occasion, in the case of Doane versus Penhallow[*], to express my sentiments at large on the authority of Congress (of which, in its application to the present object, I do not entertain the slightest doubt) And no man of common candour can hesitate, for a moment, to pronounce, that the Resolutions have an immediate and necessary connection with the merits of the cause. They ought, then, to have been admitted; but what should be their force and operation, is another point, not, at present, before the Court.
I am, also, of opinion, that it was improper to reject the Depositions, which Mr. Bingham had taken, in his public, official, character, to ascertain the circumstances of the capture, and the property of the vessel and cargo, at the time the supposed prize was carried into Martinique.
IREDELL, Justice.
It appears satisfactorily to me, that many of the documents offered in evidence, have been improperly rejected. From an inspection of all the papers, which are attached to the Record, the nature of the dispute may be easily ascertained. The Plaintiffs alledge that Mr. Bingham received, on their account, as their agent, property which had been captured by them as prize; and that, whether the capture was lawful, or not, he was bound to account to them, though they might be responsible to the original owners, if any wrong had been committed. To this charge, Mr. Bingham answers, that he never was the Agent of the Plaintiffs, but a Public Agent; and that he did not receive the property from them on their account; but from the Marquis de Bouille, on account of the true owners. Admitting either of these positions, a direct and certain consequence will insue. If the Plaintiffs are right, the consequence is, that Mr. Bingham ought to surrender the prize property, or account for its proceeds, to them; and though they, as captors, may be sued by the neutral claimants, the existence of a neutral claim will not justify his refusal so to surrender, or account. But, if the Defendant is right, the consequence is, that he ought not to deliver up the property to the Plaintiffs until it has been ascertained that the capture was lawful, which must be done through the medium of a Prize Court, not by a Judgment in a Court of common law. From this view of the controversy, therefore, it must be of great moment that Mr. Bingham should have an opportunity to shew, that he had acted, throughout the business, as the Public Agent of the United *41 States; and that his communications to Congress were open, fair, and faithful. If, indeed, he had given parol testimony on these points, his opponents might have called for the records of the appointment and correspondence, as affording higher proof. I am, therefore, of opinion, that Mr. Bingham's official letters, (some of which were written before any dispute existed, or could reasonably be anticipated) ought not to have been rejected.
The Resolutions of Congress, likewife, were proper evidence;  not, indeed, to prove, that the Plaintiffs were not entitled to the money in question, but to prove that the Defendant was recognized in the transaction as the Agent of Congress. The Resolutions are not to be considered as the mere expression of a Congressional opinion, but as an acknowledgment that Mr. Bingham was a public agent, and that the public, as his principal, was accountable for the money.
The certificate of the Marquis de Bouille, whether regarded as an original order, or as the evidence of a parol order, previously given, ought to have been laid before the jury. The Marquis acted officially, as Governor and Commander in Chief; and we must presume, that he exercised a lawful authority, in a lawful manner.
Under these circumstances it only remains to consider, what course should be pursued by the Court, in order to give the Defendant the benefit of a trial, upon a full view of his legal proofs. I think, for that purpose, that a Venire Facias de novo ought to issue. For, although a Court of common law has no jurisdiction of the question of prize; yet, whether it is necessary in the present case to determine that question, must depend upon the facts, which are established at the trial. On a Count for money had and received, &c. the Court below has, prima facie, jurisdiction; and if the jury shall think Mr. Bingham was merely the agent of the Plaintiffs, the validity of the capture, as prize, can form no ingredient in deciding the issue. If, on the contrary, the jury shall think Mr. Bingham acted as a public agent, their verdict must be in his favour; as he was bound to keep the property for the real owners; and the captors can never show that they are the real owners, until the vessel and cargo have been condemned as prize, by a competent tribunal. The captors may then proceed against Mr. Bingham in a Court of Admiralty, whose decree of condemnation, operating against all the world, would entitle the captors to receive the money, and justify Mr. Bingham, or Congress, in paying it.
WILSON, Justice.
In several instances, I concur in the sentiments, that have been delivered by the Judges, who have preceded me; but, I think, it is unnecessary to specify the particulars, *42 or to amplify the reasons, since I continue clearly in my opinion on the point, which was separately argued, that this cause is exclusively of Admiralty jurisdiction. On that ground I chuse entirely to rest the judgment that I give: but it leads inevitably, also, to another conclusion, that, the Court not having jurisdiction, a Venire Facias de novo (which, in effect, directs the exercise of jurisdiction) ought not to issue. I am, therefore, for pronouncing, simply, a judgment of reversal.
PATERSON, Justice.
I cannot agree to send a Venire Facias de novo to a Court, which, in my opinion, has no jurisdiction to try, or to decide, the cause.
CUSHING, Justice.
I shall give no opinion upon the question of affirming, or reversing, the Judgment of the Court below. My brethren think there is error in the proceedings; and they are right to rectify it. On the question, however, of awarding a Venire Facias de novo, I agree with Judge IREDELL: But, as the Court are equally divided, the Writ cannot issue.
Judgment reversed; but no writ of Venire Facias de novo was awarded.
NOTES
[*]  See the Case referred to, post. I have not thought it material to preserve the order of time, in which the Cases occurred, any further than by designating the respective Terms.
