The defendant, Daniel Rhea, in his answer, admits that his wife, before his intermarriage with her, viz., in May, 1819, was the wife of one Robert Erskine, and was engaged in carrying on business for herself; that he did agree to join, and did join her, in the conveyance to the complainant, and in that to her son; that he had no title or interest in the premises; that the property belonged in May, 1819, to Elizabeth Erskine, who was a married woman; and he denies all the other allegations in the bill. Elizabeth Rhea, in her answer, avers, that she was married to Robert Erskine in January, 1812; that after her marriage, in the absence of her husband, one Adam Mayne conveyed to her the premises mentioned in the bill of complaint; the deed bears date on the 7th of April, 1817; that her husband, Erskine, left her in the year 1814, and she believed he was alive in May, 1819, and that she was not, at that time, the wife of Daniel Rhea; that in July, 1821, Erskine having then been beyond seas more than seven years, she married Daniel Rhea; having received no support from her former husband since he left her.

The answer of the infant is put in by his guardian, in the usual form, submitting to the protection of the court; without admitting or denying any of the facts alleged in the bill.

In this state of the proceedings, the court decreed a sale of the lot before mentioned, for payment of the claim of the complainant; and appointed a trustee to make the sale, under the terms prescribed in the decree; reserving the claim of the complainant for proof on it, and further order. From this decree, there 108*] *was an appeal, and the cause is now before this court for their decision. The question submitted by the arguments of the counsel is, whether the contracts and engagements of Elizabeth Rhea, made in the absence of her first husband, and prior to her marriage with the defendant, Rhea, are obligatory; and to what extent a woman who has been abandoned by her husband may contract debts, for which she is personally liable.

been permitted to alien her land, without her husband, and is exempted from the disabilities of coverture. It has been uniformly considered that banishment, or abjuration, is a civil death of the husband. In the case of Deborah Gregory v. Paul, executor of Warburton, reported in the 15th volume of Mass. Rep. all these cases are reviewed by the Supreme Judicial Court of Massachusetts, and the law recognized. In the case under consideration, there was a voluntary abandonment of the wife, by the husband, without having furnished her with the means of support. In his absence, she traded and dealt as a feme sole, and is liable for her debts. When the deeds for the lot aforementioned was executed, her husband had been absent five years only; she continued under a coverture, and was the wife of Robert Erskine, her first husband. There is no evidence that she was at that time married to Daniel Rhea; and if the marriage had been proved, it would have been illegal and unavailing. A feme covert, who has been abandoned by her husband, is not permitted to marry a second time, with impunity, until her husband shall have been absent seven years, and *shall not have [*109 been heard of during that time. But by the laws of Maryland, which must govern in this case, a married woman cannot dispose of real property, without the consent of her husband; nor can she execute a good and valid deed, to pass real estate, unless he shall join her in the deed.

The separate examination, and other solemnities, required by law, are indispensable, and must not be omitted. The deeds executed by her and Daniel Rhea, in May, 1819, are therefore inoperative and void.

The Circuit Court decreed, in this case, upon the bill annexed and exhibits, without further testimony. They do not, in themselves, contain sufficient matter for a decree.

It does not appear that any evidence was taken on commission, or otherwise, to establish, or disprove, the material allegations in their bill.

The record being thus defective, this court cannot make a final decision. The decree of the Circuit Court is reversed, and the record remanded for further proceedings.

reported in 1 Bos., & Pull. 359. In delivering the opinions of the court Mr. Justice Buller refers to the case of Lady Belknap, whose husband was exiled. She was permitted to sue in her own name. The husband of Lady Sandys was banished by act of Parliament during life; and it was decreed in her case, that she might, in all things, act as a feme sole, and as if her husband was dead; and that the necessity of the case required she should have such power. (1 Vernon, 104.) and the same reason apply ing, where the husband had abjured the realm, the wife, in that case, was allowed to sue as a widow for her dower. In such case, she has

*SUNDRY AFRICAN SLAVES. The [*110 Governor of Georgia, Claimant, Appellant.

V.

JUAN MADRAZO.

v.

SUNDRY AFRICAN SLAVES. Juan Madrazo, Claimant.

Jurisdiction-in suit against governor of a State, as such, State a party.

In the District Court of the United States, for certain Africans, as the property of the libelant, the district of Georgia, a libel was filed, claiming which had been brought into the State of Georgia, and were seized by the authority of the Governor of the State, for an alleged illegal importation; process was issued against the slaves, but was not served. The case was taken by appeal to the Cir

cult Court, and the Governor of Georgia filed a paper, in the nature of a stipulation, importing to hold the Africans subject to the decree of the Circuit Court, &c. Held, that such a stipulation could not give jurisdiction in the case to the Circuit Court; as process could not issue legally from the Circuit Court against the Africans, because it would be the exercise of original jurisdiction in admiralty, which the Circuit Court does not possess. [121]

"It may be laid down as a rule, which admits of no exception that in all cases where jurisdiction depends on the party, it is the party named in the record.' [122]

The libel and claim exhibited a demand for money actually in the treasury of the State of Georgia, mixed up with the general funds of the State, and for slaves in the possession of the government; the possession of both of which was acquired by means which it was lawful in the State to exercise. Held, that the courts of the United States had no jurisdiction; the same being taken away by the 11th article of the amendment to the Constitution of the United States. [123]

In a case where the chief magistrate of a State is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, the State itself may be considered a party in the record. [124]

THESE cases were brought before this court, HESE cases were brought before this court, for the district of Georgia, under the following circumstances:

The schooner Isabelita, a Spanish vessel, owned by Juan Madrazo, a native Spanish subject, domiciled at Havana, was despatched by him with a cargo, his own property, in the year 1817, on a voyage to the coast of Africa, where she took in a cargo of slaves. On her return voyage she was captured by a cruiser called the Successor, under the piratical flag of Commodore Aury, the said cruiser being then commanded by one Moore, an American citizen, and having been fitted out in the port of Baltimore, and manned and armed in the river Severn, within the waters and jurisdiction of the United States. The Isabelita and the slaves on board were carried to Fernandina, in Amelia Island, and there condemned by a pretended 111*] Court of *Admiralty, exercising jurisdiction under Commodore Aury; and sold, under its authority, by the prize-agent, Louis Segallis, to one William Bowen. The negroes, so purchased by Bowen, were conveyed into the Creek nation, in consequence, as it was alleged, of the disturbed state of East Florida, the insecurity of property there, and with a view to their settlement in West Florida, then a province of the Spanish monarchy. Being found within the limits of the State of Georgia, they were seized by an officer of the customs of the United States, and delivered to an agent appointed by the governor of Georgia, under the authority of the act of the legislature of that State, passed in conformity to the provisions of the act of Congress of March, 1807, prohibiting the imporation of slaves into the United States, the negroes having been NOTE. Jurisdiction of Circuit Courts by consent. The jurisdiction of the Circuit Courts is limited to that conferred by act of Congress. They have no jurisdiction, except such as Congress, by constitutional laws, has conferred upon them. United States v. Hudson, 7 Cranch, 32; McIntire v. Wood, 7 Cranch, 504; United States v. Bevans, 3 Wheat. 336; Moffat v. Soley, 2 Paine, 103; Hubbard v. North R. R. Co. 3 Blatch. 84: S. C. 24 Vt. 715; Ex parte Cabrera, 1 Wash. C. C. 232; Shute v. Davis, 1 Pet. C. C. 431; Livingston v. Jefferson, 1 Brock. Marsh. 203.

so brought into the United States, in violation of that act.

Some of the negroes were sold by an order of the Governor, without any process of law, and the proceeds paid over to the treasurer of Georgia. The residue of the negroes are in possession of an agent, appointed by the Governor of Georgia.

The Isabelita was fitted out as a cruiser at Fernandina; taken by Moore to Georgetown, South Carolina; seized there by the United States, sent round to Charleston; libeled in the District Court of South Carolina; and by a decree of that court, restored to Madrazo, the claimant.

The Governor of Georgia filed an information in the District Court of the United States for the District of Georgia; praying that a part of these Africans, which remained specifically in his hands, might be declared forfeited, and may be sold.

A claim was given in, in this case, by William Bowen; Juan Madrazo, the libellant in the other case, did not claim.

The decree of the District Court dismissed the claim of William Bowen, and adjudged the negroes to be delivered to the Governor of Georgia, to be disposed of according to law.

William Bowen appealed to the Circuit Court, by which court his claim was dismissed; and from the decree of that court, dismissing his claim, he has not appealed.

Juan Madrazo filed his libel in the District Court of Georgia, alleging, that a Spanish vessel called the Isabelita, having on board a cargo of negroes, was piratically captured on the high seas, carried into the port of Fernandina, there condemned by some pretended tribunal, and sold; that the negroes were conveyed, by the purchaser, into the Creek nation, where they were seized by an officer of the United States, and by him delivered to the government of the State of Georgia, pursuant to an act of the General Assembly of the State of Georgia, carrying into effect an act of Congress of the United States; *that a part of the said [*112 slaves were sold, as permitted by said act of Congress, and as directed by said act of the general assembly of the said State, and the proceeds thereof deposited in the treasury of the said State; that part of the said slaves remain undisposed of, under the control of the Governor of the said State, or his agents; and prays restitution of said slaves and proceeds. Claims were given in by the Governor of Georgia, and by William Bowen. The District Court dismissed the libel, and the claim of William Bowen. From this appeal, Juan Madrazo appealed to the Circuit Court.

The Circuit Court dismissed the libel and claim of the Governor of Georgia, and directed restitution to the libellant; and from this de

As to jurisdiction of Circuit Courts generally, see notes to Emory v. Greenough, 1 L. ed. Ü. S. 640; to Strawbridge v. Curtiss, 2 L. ed. U. S. 435; U. s. v. Coolidge, 4 L. ed. U. S. 124; U. S. v. Bevans, 4 L. ed. U. S. 404.

As to jurisdiction of District Courts generally, see note to Glass v. The Betsey, 1 L. ed. U. S. 485.

As to jurisdiction of the United States Supreme Court, see notes to Matthews v. Zane, 2 L. ed. U. S. 654; to Martin v. Hunter, 4 L. ed. U. S. 97; to Houston v. Moore, 4 L. ed. U. S. 428; McCormick v. Sullivant, 6 L. ed. U. S. 600.

to show cause why restitution shall not be decreed. The law of the United States of 1807 prohibits the imporation of slaves, and directs, that if slaves are brought in, they shall be seized, and delivered to the Governor of the State in which the seizure is made. The Governor of Georgia appointed an agent to receive them; and the libel states the slaves claimed were delivered to the agent of the State. The right of the State of Georgia, acquired under that act, is spread on the record by the libelant; and it is this right, so acquired, which he seeks to devest. The State of Georgia is, therefore, a party to the suit, because the res is in her possession; and the monition issued below, was served upon the Governor and the Treasurer of the State.

The jurisdiction is also denied, because a judgment of the court would operate directly on the State of Georgia. Madrazo should look to the Legislature of Georgia for redress; and the appeal to her justice is not to be made through the courts of the United States.

The terms of the amendment to the constitu115*] tion, its spirit, *and the views heretofore taken of it by this court, are all opposed to the construction now claimed, which will except from the operation of the amendment, cases of admiralty jurisdiction. Proceedings in the admiralty, are suits at law. Does the admiralty proceed without law, according to the will of the judge? The forms of its proceedings are according to the civil law; the rights of the parties are decided according to the law of nations, and the law merchant; and both on its prize and instance side, according to the municipal laws of the country where it sits.

The objections made by the States to their liability, before the amendment to the constitution, was no to the mode by which the suit was instituted; but to the fact of their being made answerable to the courts of the Union.

To restrict the amendment to cases of common law and equity, would not, therefore, have afforded an adequate remedy to the alleged grievance. Nor was the restriction established with a reservation as to claims, by foreigners; neither was it intended to leave uninfluenced by it, cases which might arise out of a state of war. Many of the suits which had been brought, and which might have been brought, before the amendments, were instituted by foreigners; or were of a nature to be prosecuted in the admiralty. The construction claimed by the opposite counsel, would exhibit the extraordinary fact, that while the amendment took away the jurisdiction of the Supreme Court in suits against States, it left it in the lowest court under the constitution.

Nor does the exemption of the States from suits in the admiralty, authorize apprehensions of internal difficulties. In cases of capture, at war, on the high seas, by whatever ship of war or armed vessels, acting under the authority of the United States, the capture may be made, no right could be acquired by capture to the property, by a State; the right to the property, is that of the sovereign who makes the war; and, but for the prize act, by which the property captured is condemned and distributed, it would remain the property of the sovereign. Cited, Osborne v. The Bank of the United

States, 9 Wheat. 157-8; likewise Cohens The State of Virginia, 6 Wheat. 264.

But if the amendment to the constitution does not extend to cases of admiralty jurisdiction, the jurisdiction of this case would be in the Supreme Court, and, therefore, there is error in these proceedings.

2. The court below never had possession of the res, or anything pertaining to it. The warrant of arrest issued in the District Court was never served, the court relying on the service of the monition, which was erroneous.

*The res remained in the possession [*116 of the Governor of Georgia, without any agreement for its production.

The proceedings in the District Court, not having been founded upon the res, and the service of the monition not having been legal, the Circuit Court could not have jurisdiction on the appeal. As an appellate court, it could by no proceeding get possession of the res; and the case should have been remitted by the Circuit to the District Court.

The provisions of the act of Congress of 1807, which apply to this case, were not repealed by the law of 1818.

The repeal applied to importations by sea, and these slaves were brought into Georgia by land. Mr. Wilde, for Juan Madrazo, made these points:

1. That the court below had jurisdiction. 2. That the proprietary interest of Madrazo in the Isabelita, and slaves, and the legal outfit of the Successor, are sufficiently proved; and he is consequently entitled to restitution.

The original grant of jurisdiction, in such cases, to the courts of the United States, is ample. 2d sect. 3d art. Con. U. S. The admiralty jurisdiction is, "of all cases of admiralty, a maritime jurisdiction," generally, without restriction; whether they arise under the constitution, laws, and treaties of the United States, or the law of nations.

The grant of common law and equity jurisdiction is confined to cases arising under the constitutional laws and treaties of the Union. Before the amendment to the constitution, the courts of the United States must have taken cognizance of admiralty cases; although a State were directly interested, or even a party on the record.

Ever since the amendment, there are cases in which it is presumed these courts may take jurisdiction, although a State be a party. The second clause of the tenth section of the second article of the constitution, prohibits the States from keeping troops, or ships of war, only in time of peace. In time of war, they may. During actual hostilities, there is nothing to prevent a State from fitting out a ship of war, or even a fleet, for defense, or annoyance; and the lawful prizes made by such a fleet, it is presumed, would be the property of the State; a State may exercise this power. Congress have the right to make rules concerning captures. Such rules are the supreme law. But if all captures, made by State cruisers, are to be tried in State tribunals, how long could the rules of Congress concerning captures be enforced, or the beligerent rights of the Union be exerted without the violation of justice to neutral nations?