5 U.S.

103
1 Cranch 103
2 L.Ed. 49

The UNITED STATES

v.
The SCHOONER PEGGY.
December 1, 1801

ERROR to the circuit court of Connecticut.

The schooner Peggy was captured as prize by the United States armed
vessel, the Trumbull, David Jewitt, Esq. commander, instructed to take
any armed vessel or vessels, sailing under the authority or pretence of
authority of the French Republic. The capture was made upon the 24th of
April 1800, and she was sent into the district of Connecticut, and was
there libelled as prize. The district court ordered the schooner and cargo to
be restored, and the captors appealed to the circuit court of the district of
Connecticut for September 1800. The circuit court reversed the decree of
the district court, and condemned the Peggy and cargo as prize. From this
decree the owners of the Peggy prosecuted this writ of error.
On the 30th of September 1801 a convention between the United States
and the French Republic was signed by the plenipotentiaries of the two
nations at Paris, and on the 21st of December 1801 it was finally ratified
by the president of the United States.
The fourth article of the convention provides that,
'Property captured, and not yet definitively condemned, or which may be
captured before the exchange of ratifications (contraband goods destined
to an enemy's port excepted) shall be mutually restored. This article 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
contrary to the intent of the said convention, before the knowledge of this
stipulation shall be obtained, the property so considered shall without
delay be restored, or paid.'
The question to be decided by the court was, whether, by the sentence of
the circuit court of Connecticut of September, the schooner Peggy could

be considered as definitively condemned, within the meaning of the fourth

article of the convention.
[Pages 104-107 intentionally omitted]
Mr. Chief Justice MARSHALL delivered the opinion of the court.

In 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 appellation 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
interlocutory 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.

It 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
inquire 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.

The constitution of the United States declares a treaty to be the supreme law of

The constitution of the United States declares a treaty to be the 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. But 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.

It is in the general true that the province of an appellate court is only to inquire
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.