It may also be remarked, that, in the case of Rayne and MARY'D. Bell the notice which Lord Ellenborough takes of the case of Sheriff and Potts, virtually admits the doctrine upon which this Court founds its decision.

The terms of this policy so far as connected with this decision, are," with liberty of touching at the Cape de Verd Islands, on her outward passage, for stock, and "to take in water." Touching, in its nautical sense, is known to be the most restrictive word that can be adopted in such a case. Construing the license according to the subject matter, and in its necessary connection with the offer on the freight, it could mean no more than permission to provision the vessel with live stock, such as is usual on a voyage, and may be procured at the Cape de Verds.

It might, indeed, admit of a doubt whether any of the larger animals used for food, were included within the policy. The words of the first offer certainly were intended to confine the permission to the smaller animals. Stock is a term of the most general import: In its pre sent extended application, it would include a great variety of subjects that never could have entered into contemplation of the parties.

In what sense was the term used? Is the question to be decided: not what uses it might have been applied to in other contracts, or between other parties. The general want of precision in the language of maritime contracts, is an endless source of litigation among mercantile men. Courts of justice are therefore obliged to resort to such reasons as the nature, object and terms of the contract present, to determine the precise extent of the obligation of the parties.

We feel no inclination to add to the number of causes which vitiate a policy; but the amount of the premium depends upon such a variety of considerations, (as often suggested by caprice as by judgment,) that the contract, whatever it is, must be substantially adhered to.

Judgment reversed.

INSURANCE CO. v.

LE ROY &

OTHERS'

The courts of

diction in cases

Absent....Washington, justice.

THIS was a case certified from the Circuit Court the U. States for the District of Connecticut, in which, upon argument have no com- of a general demurrer to an indictment for a libel on the mon law juris- President and Congress of the United States, contained of libel against in the Connecticut Currant, of the 7th of May, 1806, the govern charging them with having in secret voted two millions United States. of dollars as a present to Bonaparte for leave to make But they have a treaty with Spain, the judges of that Court were dithe power to vided in opinion upon the question, whether the Circuit tempts, to im- Court of the United States had a common law jurisdiction prison for con- in cases of libel.

ment of the

fine for con

tumacy, and to enforce the observance of their orders,

PINKNEY, Attorney General, in behalf of the United States, and DANA for the Defendants, declined arguing the case.

The Court, having taken time to consider, the following opinion was delivered (on the last day of the term, all the judges being present) by JOHNSON, J.

The only question which this case presents is, whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases. We state it thus broadly because a decision on a case of libel will apply to every case in which jurisdiction is not vested in those Courts by statute.

Although this question is brought up now for the first time to be decided by this Court, we consider it as having been long since settled in public opinion. In no other case for many years has this jurisdiction been asserted; and the general acquiescence of legal men shews the prevalence of opinion in favor of the negative of the proposition.

The course of reasoning which leads to this conclu- U. STATES sion is simple, obvious, and admits of but little illustra

v.

tion. The powers of the general Government are made HUDSON & up of concessions from the several states-whatever is GOODWIN. not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions-that power is to be exercised by Courts organized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the Courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it. All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer.

It is not necessary to inquire whether the general Government, in any and what extent, possesses the power of conferring on its Courts a jurisdiction in cases similar to the present; it is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those Courts as a consequence of their creation.

And such is the opinion of the majority of this Court: For, the power which congress possess to create Courts of inferior jurisdiction, necessarily implies the power to limit the jurisdiction of those Courts to particular objects; and when a Court is created, and its operations confined to certain specific objects, with what propriety can it assume to itself a jurisdiction-much more extended-in its nature very indefinite-applicable to a great variety of subjects-varying in every state in the Union-and with regard to which there exists no definite criterion of distribution between the district and Circuit Courts of the same district?

The only ground on which it has ever been contended that this jurisdiction could be maintained is, that, upon the formation of any political body, an implied power to preserve its own existence and promote the end and object of its creation, necessarily results to it. But, VOL. VII.

6

ช. HUDSON &

GOODWIN.

U. STATES without examining how far this consideration is applicable to the peculiar character of our constitution, it may be remarked that it is a principle by no means peculiar to the common law. It is coeval, probably, with the first formation of a limited Government; belongs to a system of universal law, and may as well support the assumption of many other powers as those more peculiarly acknowledged by the common law of England.

1812.

Feb. 13th.

A mortgage of

land, made by

But if admitted as applicable to the state of things in this country, the consequence would not result from it which is here contended for. If it may communicate certain implied powers to the general Government, it would not follow that the Courts of that Government are vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power. The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.

Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt-imprison for contumacy-inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.

ALEXANDER SHIRRAS, JOHN BLACK, WILLIAM MILLIGAN, WILLIAM BLACKLOCK, & JOSEPH VERREES,

v.

JOHN CAIG & ROBERT MITCHEL.

Absent....Washington, justice.

ERROR to the Circuit Court for the district of

one who has a Georgia, by Shirras and others original Complainants,

against Caig and Mitchel, original Defendants, in a suit SHIRRAS in equity to foreclose a mortgage of a lot, houses and & OTHERS wharf in Savannah, called Gairdner's wharf, which were in the possession of the Defendants.

v.

CAIG & MITCHEL.

property

The mortgage was made on the 1st of December, 1801, legal and equiby Edwin Gairdner, in his own name, and also as at- table title to a torney for the Defendant, Caig, (but without any autho- moiety of the rity from Caig so to do,) to secure the payment of 130,000 which the sterling, for which E. Gairdner had, on the same day, executed a bond for himself and Caig.

mortgage purports to convey, passes only his legal right, although

person who

In the year 1796, this property had been purchased by he had a powJames Gairdner, Edwin Gairdner, and Robert Mitchel er, from the as joint tenants, who took a conveyance from Levi Shef- held the resi tall to themselves, by the description of James Gairdner, due of the leEdwin Gairdner and Robert Mitchel, merchants and gal, but not of the equitable co-partners of the city of Savannah. The name of the estate in the firm was Gairdners and Mitchel. In 1799 this firm was land, to sell and convey his dissolved, and the business was carried on in Charleston right also; the by Edwin Gairdner alone under the firm of Edwin Gaird- mortgagor not ner and Co.; and by mutual consent, in December, 1799, to convey any having affected an entry was made in the books of Gairdners and Mit- part of it under chel, by James Gairdner, charging this property, to the the other peraccount of Edwin Gairdner and Co. at the price of 20,000 son, although dollars. In 1800, Edwin Gairdner entered into part- his deed purnership, with John Caig, the Defendant, at Savannah, mortgage the under the firm of Edwin Gairdner and Co.-under whole; and which name he continued to carry on business alone at title not being the equitable Charleston; and upon his books at that place, made an in the person entry charging this property to the Savannah house who gave the (consisting of himself and Caig) at an agreed price; A plat referand the Savannah house by an entry on their books red to in the deed as being credited the same on the account of the Charleston house annexed to it, consisting of Edwin Gairdner alone.

ported to

power.

but which was never in fact annexed, and

corded with

On the 7th of January, 1802, Edwin Gairdner and was not reJohn Caig dissolved their partnership at Savannah, the deed, afand a new firm was established consisting of Edwin fords no eviGairdner, John Caig and the Defendant, Robert Mit-dence in aid of chel, under the name of Gairdner, Caig and Mitchel, who of the properby their articles of co-partnership under seal, agreed ty mentioned to take the property in question, at a valuation and hold in the deed. it as their joint property.

the description

A person can~

not be charged