12 F. Cas. 984 | D. Me. | 1840
Upon the facts proved in this case, the libellant claims to recover of the owners of the boat, the value of the merchandise he has lost, as he alleges, through the carelessness and misconduct of their agents. There can be no doubt that the owners of the boat are subject to all the liabilities of common carriers. It is proved that she was regularly employed in running between Portland and Boston, for the conveyance of passengers and merchandise. A common carrier is one who makes it a business to transport goods, either by land or water, for hire, and holds himself ready to carry them for all persons who apply and pay the hire. 2 Kent, Comm. 598; Dwight v. Brewster, 1 Pick. 50. Undertaking, as he does, to carry goods for all persons, he is considered as engaged in a public employment, and as engaging beforehand to carry goods for a reasonable remuneration for any person who may apply to him and pay the hir.e, and he will be liable to an action for refusing, unless he has a reasonable cause for his refusal. Story, Bailm. § 502. The law, for strong reasons of public policy, holds him to a very rigorous responsibility. He is answerable not only for his own acts, but for those of his agents and servants. Among the obligations which common carriers take upon themselves, as resulting from the nature of their employment, is that of delivering the goods, when they are transported to the place of destination, to the proper person. If they are delivered to a wrong person, and any loss or damage ensues in consequence, they are responsible to the owner. Golden v. Manning, 3 Wils. 429; Garnett v. Willan, 5 Barn. & Ald. 53. And when the goods are lost or damaged, the onus probandi is upon the carrier, to prove that the loss was occasioned by some cause for which the law will excuse him. Story, Bailm. 529. It is in evidence, that the box in question belonged to the libellant, that a part of its contents has been lost, and that the greater part of what remained has been materially damaged, and the burden of showing that the loss and damage occurred under such circumstances as will exempt the owners from their responsibility, is thrown upon them.
The counsel for the respondent contends, in the first place, that the box had been delivered to Bonney, and that they were therefore discharged from all their liabilities. The facts, as they are stated by the libellant's witnesses, Watts, the keeper of the storehouse, and Potter, the porter, are that the three boxes were landed and put into the respondents’ store-house; that Bonney employed a porter to carry them to the tavern, and had them put in his cart; that, after he had left the wharf, a claim being made, by by another passenger, of one of the boxes, the mate came on shore with Adams, and they took the box, carried it again on board the boat, and delivered it to the woman who claimed it. Now, if it should be admitted that here was such a delivery as would discharge the owners from all further responsibility, had nothing more been done, although the box had not been actually removed from their store-house, it is quite as clear from
The mate in his deposition, gives a different account of the affair. He says that Adams informed him that a man had taken a wrong box on shore, and he then went ashore, and took and carried it on board the Thorn. Afterwards, he adds, that upon reflection he is satisfied, that Adams went ashore and took the box on board the Thorn, before speaking to him; that he then went on board the Thorn, examined the box and found no mark upon it; that he asked the woman if it was hers, to which she replied that it was, and had wearing apparel in it. Without opening the box to verify her statement, be allowed her, upon her word alone, to retain the box, and she carried it with her to Hallowell. Now, in the first place the testimony of the mate is objected to, as that of an interested witness. He, with Adams having taken the box from the porter and delivered it to a wrong person, without consulting and taking the direction of the clerk, it is ax-gued, is answerable over to his employers for any damage which may be recovered against them, and has therefore a direct interest to prevent a recovery. And if it be conceded that he exculpates himself by his own statement, that is overcome by the plain, direct, and positive testimony of two disinterested witnesses, by whom he is flatly contradicted. My opinion, upon the facts which have been proved is, that if there had been a delivery, it was revoked by the same authority by which it was made, and that the' respondents are not for that cause exonerated from them responsibilities as common carriers. In the second place, it was contended at the argument, that the owners of the boat are not responsible, because no contract of affreightment for the carriage of the goods intervened between the parties, but that they were surreptitiously put on board by the li-bellant, or by his procurement, without the-knowledge of the clerk of the boat, and without being properly marked so that it could be known to whom they belonged. No evidence was offered to show by whom or by what means the goods were brought on board-They were not brought to the notice of the clerk, and were not entered on the freight list. The contract of' affreightment, or that for the transportation of goods by a common carrier, like all other contracts, requires for its completion the consent of parties, either express or implied. If goods, says Pothier, are put on board a vessel without the knowledge of the master, there is no contract, and consequently no obligation on one part or the other; and therefore the master, who finds the merchandise in his vessel, may put it ashore, and charge the expense of unlading to the owner. The French legislation has provided for this case by a special article. The master may discharge the goods found on board his vessel, without being made known to him, or he may carry them, and charge the highest freight paid for merchandise of the same quality. Ordonnance de la Marine, liv. 3, tit. 3, art. 7. Valin and Pothier teach us that, if he does not discover them ■until after he sails, provided the vessel is overloaded, he may discharge them, at an intermediate port, before the end of the voyage, leaving them in the hands of some solvent merchant, and giving the owner notice; but if the vessel is not overcharged, he ought to carry them to the port of destination. 1 Valin, 647; Pothier, Traité de Contrat 'de Charter Partie, Nos. 10, 12. This obligation does not arise from the contract of the parties, because no contract has intervened, but results from the principles of natural law, the great law of social charity, which com mands us on all occasions to promote the well being of others, when it can be done without a sacrifice for ourselves, and not to do an act. though permitted by the positive law, which-will be materially injurious to another, without any corresponding benefit to ourselves. The Code de Commerce adopts the morality of Pothier, and confines the right of the master to discharge the goods at the port where-they are laden. No. 292, 2 Boul.-P. Dr. Comp. 373. tit. 2, § 5. If these principles ought to govern in the case of a common freighting vessel, and they are recommended as well by public convenience as by their pure and hon--orable morality, they apply with much greater force to cases like the present. The boat
It is true, that if goods are furtively put on board by the owner, and there is an apparent desire to conceal them, a presumption \vould naturally arise, that the owner intended to defraud the carrier of his compensation for his services. Such conduct might rebut the presumption of an implied contract, and a question might be made whether the acceptance of the freight was a waiver of the wrong, so as to subject the carrier to all the responsibilities which would result from a contract. But that question does not arise in this case, because there is'no evidence tending to create any suspicion of that kind, against the libellant. Regularly, without doubt, the clerk of the boat ought to be notified, and, for his own security, the shipper ought to see that his goods are entered on the freight list. But in the hurry and confusion in which the business is often done, it would be a harsh presumption to assume that fraud was intended from this neglect alone. It is. certain, also, that the goods ought to be plainly and legibly marked, so that the owner or consignee may be easily known; and if, in consequence of omitting to do it, without any fault on the part of the ■ carrier, the owner sustains a loss, or any inconvenience, he must impute this to his own fault. It is certain, that the box had not such plain, intelligible-marks upon it, as would readily point out the owner. He probably thought, as he was in company with his goods, that this was of less importance. But it was a fault on his part, and the natural and necessary consequence of that fault he must bear. But his fault will not excuse the fault of the carriers or their servants. They are not liberated from all care and responsibility, because the shipper has not placed proper marks on his goods. Bonney took, and paid the freight of, the three boxes. They were landed, and he had them delivered to a porter, and ordered them to be carried to his lodgings. Here was abundant proof that he claimed them. But now, after Bonney had left the wharf, in the confidence that his goods would follow him, comes forward another claimant. She gave no better proof of title than Bonney. If the box was: not marked for him, neither was it for her. Yet without any examination, without even taking the trouble to open the box, and see whether it contained, as the woman alleged, her wearing apparel, and in the absence of Bonney, who had paid the freight to the mate himself, it was delivered over to her. No-one can hesitate to say, upon the simple statement of the facts, that there was, in this, undue precipitancy and a want of due caution on the part of the mate. Nor wili any man. of ordinary prudence and caution, pretend, that this is the way- in which opposing claims, to property ought to be settled. The woman passenger had declared what the box contained, if it belonged to her. If Bonney had been sent for, and the question had been asked him. the adverse claims would have been satisfactorily settled on the spot. The delivery to one of the claimants, in the absence of the other, without any further inquiry, was a gross fault on the part of the mate, and as the owners of the boat are responsible for the acts of their servants, it is-imputable to them. My opinion, therefore, is, that the owners are liable. And as the-respondents refused to make him any compensation for the loss and damage of his goods, he was justified in leaving them upon their hands, and looking to them for then-value. Decree for libellant.
NOTE. — In this case the question of jurisdiction was not raised by the counsel, nor adverted to by the court The competency of the court to pass upon such questions had' been, in this district, maintained in several cases in which the same general question,
But in the recent case of New Jersey Steam Xav. Co. v. Merchants Bant, C How. [47 U. S.J 344, agreeing precisely in its principal features with this case, the question whether the court had jurisdiction over the cause, as one arising on contract or grooving out of a maritime service, was raised by counsel, and argued at great length. The libel was sustained, and the jurisdiction of the court vindicated in a very able opinion of Mr. Justice Xelson, on the ground that the contract and the service were maritime, and his opinion liad the concurrence of three of the other judges, including the chief justice. Two of the judges concurred in the judgment on the .ground of tort, and one denied the jurisdiction altogether. The authority of - tne court to take jurisdiction in these cases being brought into such grave doubt, it seems not inappropriate to add, as a sequel to the opinion on the merits of this case, a few observations on this subject. If they have no other value, they will serve to show that the jurisdiction, over such cases, has not been taken by the court without some consideration and reflection on the subject.
In these, and in analogous cases, the only question that can be considered as an open one is, whether they come within that clause of the constitution which says, the judicial power of the United States shall extend to “all causes of admiralty and maritime jurisdiction.” If they do, then the original cognizance of them is, by the ninth section of the judiciary act, given to the distinct court. The question then carries us back to the constitution-; and if we are to apply, to the interpretation of that, the same rules and principles which courts apply to the interpretation of all other instruments, it is difficult to conceive where the most subtle ingenuity will find a loop to hang a doubt on. No court ever pretended to an authority to strike from a .solemn instrument any word that, had a plain and sensible meaning in the place where it was found, unless it was repugnant to the tenor of the whole instrument, or plainly and irreconcilably contradictory to some other part of it. Such a decision can stand on no other grounds than the hoe volo, sic jubeo. It must then be conceded, unless this can be made apparent, that'the word maritime stands a part of the constitution, either as a significant word, or an unmeaning pleonasm.
I do not now recollect, that it ever has'been seriously contended, that such causes can be excluded from the jurisdiction of the courts of the United States, by any interpretation of the words of the constitution, taken by themselves. The argument, that this clause is controlled by the seventh amendment, which secures the right of trial by jury in all suits at common law, where the value in controversy exceeds twenty dollars, has no application to the constitutional grant; because these are not suits at common law; and fur the", because congress may provide for the intervention of a jury, on the trial of a cause on libel and answer, as well as in a suit according to the forms of the common law. And if the objection has any weight, it applies, with precisely the same force, against the jurisdiction in all cases in equity. Accordingly we find that those who deny the jurisdiction, drop all the ordinary rules of interpretation of written instruments, and resort to matter dehors the constitution, to determine the meaning of this clause. It is contended, that we are not to take the plain and obvious meaning of the words, nor to interpret them by reference to other parts of the same instrument, but that their meaning is to be ascertained by a reference to the usages, jurisprudence and laws of England, usages that never prevailed, and laws that were never in force here.
We may here be met by an argument, that the constitution does, in fact, refer to the common law for the definition of wórd%, by the use of technical terms of that law, as “habeas corpus,” “trial by jury,” etc., without proceeding to define them. But these words were just as familiar in our law, as in that of England. And if, by supposition, there had been any difference in the sense in which they were used in the English statutes and common law, and that in which they were generally used and understood in this country, can there be a doubt which sense is adopted by the constitution? The common law, and of course the sense in which the technical words of that law are used, was never in force m this country, any further than as it was adopted by common consent, or by the colonial legislatures. Beyond this, it was as much a foreign law as that of France or Holland; and for the definition of any technical terms of general law or jurisprudence we may, with just as; much propriety, refer to the laws of any other foreign country as to those of England, except so far as the law of England has been adopted and incorporated into our own laws and jurisprudence. And where the same words have a different import in the-two countries, that which prevails in our own is most certainly to be preferred.
It is again said, that the extension of the jurisdiction of the vice admiralty courts, in tlie colonies, to revenue causes, was one of the grievances of which they complained, and which, with others, led to the revolution. From this fact it is argued, that it is to be-presumed, that in defining this jurisdiction, the framers of the constitution would adopt that limited jurisdiction which was sought and claimed from the mother country. The-answer is, that if the convention had intended to do it, they would have taken care so-to express themselves as to leave the subject free from doubt. So far from doing this, they have in the grant of this jurisdiction employed terms that in their ordinary and natural import clearly negative the supposition that the restricted jurisdiction of the high court of admiralty was intended. The fact, of the alleged grievance and of the complaint, is admitted, but the argument draws the wrong inference. On every prin
We have said, that to ascertain the sense in which words are used in the constitution, we are to look to the meaning which they had in our own country, and for the meaning of the technical language of jurisprudence, we are to look to the laws and jurisprudence of our own country, if the words there had acquired a plain and positive meaning.
Thus far the subject has been considered as an original question, precisely as it presented itself, sixty years ago, to the first judicial tribunal that had to pass upon it. To us, however, it does-fiot present itself as a naked question of original speculation. It comes prejudged by a contemporaneous construction,. and by the uniform and unvarying practice of more than half a century. In looking for the contemporaneous construction of the constitution, our attention is naturally first turned to the Federalist The eightieth number treats of the extent of the judicial power. In that, Gen. Hamilton says, “It seems hardly to admit of controversy, that the judiciary authority ought to extend to these several descriptions of cases.” He enumerates five classes, the fifth of which is, “all those which originate on the high seas, and are of admiralty or maritime jurisdiction.” After commenting more at large on the previous classes, he adds: “The fifth point will demand little animadversion. The most bigoted idolizers of state authority have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes.” The commentators on the Code Napoleon habitually refer to the discussions at the tribunate, and in the council of state, on the several articles of the Code, as of high authority in the interpretation of any doubtful or ambiguous language. We have not, for our aid in explaining and opening the sense of any obscure article in our constitution, the benefit of the debates upon it in the convention; but we have what all will admit to be of equal, if not of much higher authority. We have a commentary, deliberately prepared by three of the most accomplished statesmen which this country has yet produced, published immediately after the constitution was made, while all the discussions were fresh in their minds, and before it was adopted by the people. The number quoted was written by Gen. Hamilton, but it is fair to presume that all concurred in the general opinions that were entertained by each. Can any one suppose, when it is said that the judicial power under the constitution extends to all cases, that arise on the high seas; when after-wards recurring to the subject, seemingly ex industria, the word “admiralty” is dropped, and the word “maritime” used alone, as descriptive of the constitutional jurisdiction, thus presenting it as the leading and important feature in the clause: I ask. can any man imagine that the Federalist supposed
We have in the judiciary act (Sept. 24, ¡1789, c. 20 [1 Stat. 7G]) a contemporaneous construction of this clause of the constitution, of the highest authority. In apportioning to the several courts the judicial power, the ninth section assigns to the district court “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten' or more tons burden, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”
The first -case in which the question was raised was that of U. S. v. The Vengeance (1796) 3 Dall. [3 U. S.] 297. The vessel was seized for a violation of an act of congress, of May 22, 1794 [1 Stat. 369], prohibiting, for a limited period, the exportation of arms and ammunition. The vessel was condemned in the district court, and on appeal the decree was reversed by the circuit court, and a decree of restoration pronounced. Prom the circuit court the case was carried, by writ of error, to the supreme csourt. On the opening of the case, the court, supposing the attorney-general did not intend to enter into any further discussion, expressed their opinion; but being informed by Lee, the attorney, that on account of the importance of the subject he wished to be heard further, they gave him time. In his argument, he took the ground that this was not a cause of admiralty and maritime jurisdiction, because it was not so in England at.the time of the Revolution. After he had closed his argument, the chief justice (Ellsworth) informed the opposite counsel, that the court saw no reason to change the opinion which they had expressed on opening the cause, and that they would dispense with further argument; and the next day pronounced the following judgment: By the Court. “We are perfectly satisfied upon the two points that have been agitated in this cause. In the first place, we think it is a cause of admiralty and maritime jurisdiction. The exportation of arms and ammunition is simply the offense, and exportation is entirely a water transaction. It appears, indeed, on the face of the libel, to have commenced at Sandy Hook,” which must certainly have been on the water. In the next place, we are unanimously of opinion that it is a civil cause; it is a process of the nature of a libel in rem, and does not, in any degree, touch the person of the offender. In 1his view of the subject, it follows that no jury was necessary, as it was a civil cause; and the appeal to the circuit court was regular, as it was a cause of admiralty and maritime jurisdiction.” The question was again raised, in the case of U. S. v. The Sally (1805) 2 Cranch [6 U. S.] 406. The same objection was taken, and was again unanimously overruled. In the year ISOS, it was again brought up, in the case of U. S. v. The Betsey and Charlotte, 4 Cranch [8 U. S.; 443, a seizure made in the port of Alexandria, under a law for suspending commercial intercourse with certain ports in the island of St. Domingo. The question was again most thoroughly argued against the jurisdiction, by Lee, twelve years after he argued the case of U. S. v. The Vengeance [supra]. In this argument, as is truly said by Judge Nelson, “will be found the ground and substance of all the arguments that have been urged in favor of the limited construction of the admiralty powers under the constitution.” [New Jersey Steam Nav. Co. v. Merchants’ Bank] 6 How. [47 U. S.] 388. It was contended, with perfect justice, by Mr. Lee, that if this was not a case of admiralty and maritime jurisdiction under the constitution, it could not be made so by congress, and in that case, the law which put such causes on the admiralty side of the court was unconstitutional. The court again, without hearing a reply, unanimously overruled the objection and sustained the jurisdiction. The first and last of these cases were fully and earnestly argued, and with such learning and ability, that, in the opinion of Judge Nelson, those who have followed on the same side have done nothing more than expand the argument and accumulate citations. They abundantly prove, what nobody ever doubted, that in England th$ jurisdiction of the admiralty has been, since the controversy in which Lord Coke figured, so little to his reputation either as a lawyer or a man, restricted within very narrow limits
The only real question is on the meaning of this clause of the constitution, all causes of admiralty and maritime jurisdiction; the sense in which these words were understood by those who made, and those who adopted it, for it may well be assumed that both understood the words alike. We have the contemporaneous declarations of every branch of the government, of the legislature which passed the law of Sept. 24, 1789, and of the executive who approved it, a series of deliberate and well-considered decisions-of the judiciary, and the quiet assent of the people to an unbroken and unvarying practice continued for more than half a century, all concurring in one point, that the admiralty and maritime jurisdiction, under the constitution, is of larger extent than that ■of the English court of admiralty, and all repudiating the assumption that we are to look to the laws of England for the definition of these terms in the constitution. If this cannot now be considered as a settled •question of American jurisprudence under the great organic law of the government, ■we may, it seems to me, well say not only that no such question is settled, but that none ever will be or ever can be settled. And if every officer of the United States, who is intrusted with a portion of the constitutional powers of the government, is at liberty to carry those powers into practice as he understands the constitution, without any reference to the opinions of others, or to any settled and long-continued construction, this sacred instrument becomes a piece of wax, to be moulded into every variety of arbitrary and fantastic form that' will harmonize with the varying idiosyncrasies of these various officers.
The only object of these observations, is, to vindicate the court in taking cognizance of causes of this description, and not to enumerate all the causes that are embraced by the terms of the constitution; and if a contract for the transportation of goods on the high seas is not a case of maritime jurisdiction, then it seems to me that there is no such case.
Reeipit autem salvum fore, utrum si in navem res missae ei assignatae sunt, an etsi non sint assignatae. hoc tamen ipso quod in navem missae sunt receptae videntur. Dig. 4, !». 1, § S.
If the word “maritime” is merely exegetieal of “admiralty.” one word includes the other, and they may be used interchangeably. Admiralty is maritime jurisdiction, and maritime.is admiralty jurisdiction, without limitation or exception. But it is well known that the admiralty jurisdiction is twofold, a prize jurisdiction exercised j ure belli, extending to all captures in war, as prize, whether on sea or on land; and a civil jurisdiction over causes civil and maritime, springing from a consideration purely maritime. They are so distinct that it has been doubted, in England! whether the judge of the admiralty court can exercise both jurisdictions under one commission. 2 Brown, Civ. & Adm. Law, c. 1, p. 29; Id., c. 6, p. 208; &c.; Lindo v. Rodney. Doug. 613, note. The addition of the word “maritime,” in the constitution, closes the door against all doubt or cavil whether both branches of the jurisdiction are granted. See 2 Brown, Civ. & Adm. Law, 210.
For more than a century before the formation of the constitution, that is, from the early part of the reign of Charles II. revenue causes had been heard and tried in the colonies by eourts of vice admiralty. How extensively the
This is the reason given by Judge Chase,’ why revenue seizures were, by the act of congress. put on the admiralty side of the court. [U. S. v. The Betsy and Charlotte] 4 Cranch [8 U. S.] 446.
It is a universal rule dictated by common sense, for the interpretation of contracts, and equally applicable to all instruments, that if there is anything ambiguous in the terms in which they are expressed, they shall be explained by the common use of those terms in the country tihere they are made. Poth. Obi. No. 94. Domat. Bes Lois Civiles, liv. 1, § 2, No. IX. Semper in stipulationibus et caeteris contractibus id sequimer quod actum est. aut si non pareat quid actum est. erit consequens, ut id sequimer quod in regione in qua actum est frequentatur. Dig. 50, 17, 34.
This was the opinion of Judge Story. De Lovio v. Boit [Case No. 3,776]. In the case of Davis v. The Seneca [Id. 12,670], decided in 1829, Judge Washington says, “As preliminary to the investigation of this question. I not only admit but insist: First, that the judicial power of the United States under the constitution, and the jurisdiction of the district courts under the 9th section of the judiciary act of 1789 [1 Stat. 76]. embrace all cases of a maritime nature, whether they be particularly of admiralty cognizance or not. Second, that this jurisdiction, and the law regulating its exercise, are to be sought for in the general maritime law of nations, and are not confined to’that of England, or of any other particular maritime nation.” It is supposed that the late Chief Justice Marshall’ fully concurred with Judges Washington and Story on this subject. The jurisdiction of the adinirtilty in England, before the statutes of Richard II. and Henry IV. and the construction put upon them by the common law courts, it is admitted, was as large as that of courts of admiralty in other maritime nations of Europe. It is certain that these laws did not originally extend to the colonies because the colonies were not then in existence. If they were ever in force here they must have been subsequently adopted. But the commissions from the crown to the vice admiralty judges, show most conclusively that they never were adopted. These confer all that general jurisdiction over maritime causes, that was anciently exercised by the admiralty court of England. and has always been by the admiralty and maritime courts of every other country of Europe. If these laws, with their construction, were in force in this country, then all these commissions were illegal, because a commission from the crown could not abrogate an act of parliament. But it was never pretended that these commissions were illegal. It follows, therefore, whether we refer for the meaning of these terms to the general maritime law of nations, or to the well known and well established laws of our own country, that we are brought to the same conclusion. For the jurisdiction of the admiralty in this country, prior to the adoption of the constitution, I would refer to the opinion of Judge Wayne, in the case of Waring v. Clarke, 5 How. [46 U. S.] 454, 458. In that very learned and able opinion it is conclusively shown, that the admiralty jurisdiction of England was not that exercised and acknowledged in this country. It was here larger, and. by the commission of the judges, as ample as it
This act bears internal marks of having been prepared with great care, by men who well understood the state of the law. This clause is a proof of it. In the ease of U. S. v. The Vengeance, 3 Dall. [3 U. S.] 297, the court decided that a revenue seizure, made on the water, was a civil cause of admiralty and maritime jurisdiction. Independent of the local law and the usages of this country, it is not properly a cause of admiralty jurisdiction. In the celebrated case of The Columbus, .in 1789. Sir James Harriot says, that “the court of admiralty derives no jurisdiction in causes of revenue from the patent of its judge, or from the ancient, customary, and inherent jurisdiction of the prerogative of the crown in the person of the lord high admiral.” 1 Coll. Jurid. p. 97. As an instance court, it takes cognizance of maritime contracts and torts between party and party, by virtue of its general and inherent power. Its jurisdiction in revenue causes is superinduced bv special acts of the legislature, but does not belong to it merely as a maritime court. In this country, revenue causes had so long been the subject of admiralty cognizance, that congress considered them as civil causes of admiralty and maritime jurisdiction, and to preclude any doubt that might arise, carefully added the clause, “including,” etc. This is a clear proof that congress considered these words to be used in the sense which they bore in this country, and not in that which they had in England. The act gives exclusive admiralty and maritime jurisdiction to the district court. As a court of the law of nations, as a court of prize, its jurisdiction is. and was intended to be, in every sense, exclusive of that of the state courts. As a maritime. or instance court, its jurisdiction is also exclusive where the remedy can be given only by a court of admiralty. But in cases where the courts of common law have always exercised a concurrent jurisdiction, the jurisdiction is not, and was never intended by the constitution to be. exclusive, though the subject-matter be maritime. To take the familiar case of mariner's wages: if they mean to look to the vessel, and proceed on the maritime hypothecation, they must go to the admiralty; the jurisdiction is ex-elusive, because the hypothecation cannot be enforced in a suit according to the forms of the common law’. But if they proceed in personam against the master or owners, no man ever doubted that the courts of common law have jurisdiction. But here, to preclude the possibility of doubt, congress added the clause saving to suitors a common law remedy where that law could give it. Saving to suitors; undoubtedly to the creditor party, the actor. He has his choice of jurisdiction, and the debtor party must abide that jurisdiction, as in common sense and common right it ought to be; as It in fact is in all other cases of concurrent jurisdiction, between that of common law and equity, as w’ell as between common law and admiralty. The case of The Coiumbus is quoted by Brown as The Columbia, decided in 1782. The whole case will be found in the first volume of the Collectanea Jurídica, a curious, and, in this country, rare collection of law tracts, published in London, in 1791.
William Samuel Johnson, of Connecticut. Robert Morris, of Pennsylvania, George Reed and Richard Bassett, of llelaware. John Blair, of Virginia. Pierce Butler, of South Carolina, and Win. Few, of Georgia.
The state of mind in which Lord Coke went into the controversy on the subject of the admiralty jurisdiction does not deserve the respectable name of prejudice. It was mere willfulness and passion. Brown says that he hated the civil law and everything connected with it. He was undoubtedly a man of an acute and vigorous mind, but it ran in a narrow groove. No man knew better the old law of England in all its ramifications of feudal technicalities and quibbling subtleties; but this was all, except the-temporary politics of the day, that he did know. He talks about the gladsome light of jurisprudence, but no one at this day will look for-this light in his ponderous volumes of insufferable tediousness, in which all things are jumbled together in a perfect chaos. As a jurist, in-the liberal and philosophical sense of the word, Lord Mansfield was as much his superior as. light is better than darkness.
These three were Wm. Patterson. James Wilson, and John Blair. Their names appear ■among those who signed the constitution, and .are supposed to be the same persons who were afterwards appointed judges of the supreme -court.