It would be extraordinary, indeed, for this to do this, if we make the change by construcourt to undertake to exercise a legislative | ing the case to be one legitimately of admiralty power as to this point, and without warrant to jurisdiction. search the world over and select, for the trial Finally, then, the law, as it existed in Engof private rights, any law they may prefer. land at the time of the *Revolution, as [*477 On the contrary, its duty rather is to declare to admiralty jurisdiction over torts, is the only the law which has already become ours, which certain and safe guide, unless it has been clearwe inherited from our ancestors or have enact-ly changed in this respect, either by the Coned ourselves, and which is not vagrant and stitution or acts of Congress, or some colonial 476*] *uncertain, but to be found in our own authority. We have already seen that the judicial history and institutions, our own Con- Constitution has not used words which are stitution, acts of Congress, and binding prece- fairly open to the idea that any such change dents. Congress also might, in many instances, was intended. Nor has it made any alteration perhaps, make the law better than it is, and in terms as to torts. And no act of Congress mould it so as to meet new exigencies in soci- has introduced any change in respect to torts, ety, and suit different stages of business and having in this respect merely conferred on the civilization; and, by new laws as to navigable district courts cognizance of "all civil cases" waters, judicial tribunals, and various other in admiralty, without in a single instance dematters, is yearly doing this. But does this fining what shall be such cases in connection court possess that legislative power? And if with torts. The next inquiry, then, is, whether Congress chooses to give additional jurisdiction the colonies changed the law as to the locality to the District Court on the lakes, or tide of torts, and exercised jurisdiction over them waters, or navigable streams between them, in admiralty, though committed within a county and allow jury trials when desired, under its and not on the high seas. power to regulate commerce and collect a revenue, will this not answer every valuable purpose, and supply any new want or fancied improvement in a more satisfactory and more constitutional manner than for courts to do it without consulting Congress?

That Congress possess the power to do this cannot be plausibly questioned. The late law as to jurisdiction over the lakes, which is given to the District Court, but not as an admiralty case under the Constitution, and with a jury when desired, is a strong illustration of legislative opinion being the way we contend.

Any expansion or enlargement can be thus made, and by withdrawing in part the jurisdiction now conferred on the district courts in any matters in admiralty, Congress can also abridge the exercise of it as experience and time may show to be wise. For this reason, we are unable to see the force of the argument just offered by four members of this court, that if the English admiralty law was referred to in the expression of "all cases of admiralty and maritime jurisdiction," no change in it could be made, without being at the trouble and expense of altering the Constitution.

But in further answer to this, let me ask if the Constitution, as they contend, was meant to include cases in admiralty as on the continent of Europe rather than in England, could the law as to them be more easily altered than if it was only the law of England? And would it not take the interpretation of the admiralty law as much from the courts in one case as in the other?

I am compelled to go into these details more than would otherwise be done, considering their tediousness, on account of the great reliance on them in one of the opinions just read. In order to operate on the point under consideration, it will be seen that any colonial change must have been so clear and universal as to have been referred to in the Constitution and the Act of Congress of 1789, and to be the meaning intended by their makers to be embraced in the expression of "cases of admiralty and maritime jurisdiction," rather than the meaning that had usually been attached to them by the English language and the judicial tribunals of England, for centuries. And this change, likewise, must have been clearly meant to be referred to and adopted, notwithstanding its great encroachment in torts on the boasted trial by jury, and which encroachment they were denouncing as tyranny in other cases, and notwithstanding its natural consequences would be new collisions with the powers of the State tribunals, which they were most anxious to avoid. I have searched in vain to find acts of Assembly in any of the thirteen colonies, before 1776, making such a change, much less in a majority or all of them. Nor can I find any such judicial decisions by vice-admiralty courts in any of them, much less in all. Nor is it pretended that any acts of Parliament or judgments in the courts in England had prescribed a different rule in torts for the colonies from what prevailed at home.

It would be difficult, then, to show that a law had become changed in any free country, except by evidence contained in its legislation, or constitutions, or judicial decisions. But some persons, and among them a portion of this bench, have referred to commissions of office to vice-admirals as evidence of a change here; and some, it is feared, have been misled by them. 1 Kent's Com. 367, note; 2 Gall. 373. them. 1 Kent's Com. 367, note; 2 Gall. 373.

It is conceded, next, that legislation has, in some respects, in England, since 1789, changed and improved her admiralty proceedings; but this only furnishes additional evidence that the this only furnishes additional evidence that the law was different when our Constitution was framed, and that these changes, when useful and made at all, should be made by legislation and not by judicial construction, and they can These commissions, in the largest view, only rightfully have no force here till so made. United States v. Paul, 6 Peters. 141. The indicated what might be done, not what was difference, too, between a change by Congress actually afterwards done under them. In the and by this court alone is, futhermore, that next place, all must see, on reflection, that a the former, when making it, can and doubtless commission issued by the king could not rewill allow a trial by jury, while we are unable peal or alter the established laws of the land.

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478*] *Besides the forms of some of these commisions, referred to in De Lovio v. Boit, 2 Gall. 398, an entire copy of one of them is in Stokes, and another in Duponceau on Jurisdiction, p. 158, and in Woodcock's Laws of the British Colonies, p. 66. It will be seen that they are much alike, and though there are expressions in them broad enough to cover all "fresh waters" and "rivers," and even "banks of any of the same" (Woodcock, 69), yet tide waters are never named as the limit of jurisdiction; and, over and paramount to the whole, the judge is required to keep and cause to be executed there "the rights, statutes, laws, ordinances, and customs anciently observed." Where anciently observed? In England, of course; and thus, of course, were to comply with the English statutes and decisions as to admiralty matters.

This limitation is inserted several times, from abundant caution, in the commission in Woodcock, 66, 67, 69.

life, liberty, and property of the subject, "remained in full force therein until repealed, altered, or amended by the legislative authority of the colonies respectively, or by the constitutional acts of the same when they became sovereign and independent States." See, also, to this effect, Montgomery v. Henry, 1 Dall 49; 1 Chalmers's Op. 195; Woodcock, 156. But what seems to settle this inquiry is the treatise of a colonial judge, giving some data on this very subject, and of course well informed on the subject. Stokes's View of Constitution of British Colonies (p. 270) contains an account of the admiralty jurisdiction in the colonies before the Revolution.

Two things are clearly to be inferred from him: 1st. That admiralty and maritime cases extended only to matters "arising on the high seas"; and, 2d. That the practice and rules of decision in admiralty were the same here as in England.

that it proceeds in the same manner that the High Court of Admiralty in England does." "The only book that I have met with, which treats of the practice of the High Court of Admiralty in England, is Clarke's Praxis Admiralitatis, and this is the book used by the practitioners in the colonies."

Thus, in chapter 13, page 271, he says: "In But besides these conflicting features in dif- the first place, as to the jurisdiction exercised ferent parts of them, the commissions of vice- in the court of vice-admiralty in the colonies, admirals here seem, in most respects, copies of in deciding all maritime causes, or causes arismere forms of ancient date in England (Wood-ing on the high seas, I have only to observe, cock's Brit. Col. 123), and, of course, were never intended to be used in the colonies as alterations of the laws, and were, as all know, void and obsolete in England when differing from positive statutes. So virtually it was held in the colonies themselves. The Little Joe, Stewart's Ad. R. 405; and The Apollo, 1 Hag. Ad. 312; Wookcock's Laws and Const. of the Colonies, 123. These commissions, also, if they prove anything here actually done different from the laws in England, except what was made different by express statute, as to matters connected with breaches of the laws of revenue and trade, and not as to torts, prove quite too much, as they go above tide water and even on the land.

But it is not believed that they led to any practices under them here different from the laws at home in respect to torts. None can now be found stated, either in reports of cases or contemporaneous history. Probably in the colonies the same rules as at home prevailed on this, for another reason; because no statute was passed as to torts here, and appeals to the admiralty at home existed, on the instance side of the court, till a recent change, so as to preserve uniformity in the colonies and at home. Bains v. The James, Baldw. 549; Woodcock, 242. A case of one of those appeals is reported in 2 Rob. 248, 249 (The Fabius). There the enlarged powers conferred on vice admiralty courts by the 6 and 7 of William III., as to seizures and prosecutions for breaches of the laws of trade and revenue, are not, as I understand the case, considered admiralty pow ers, and we all know they were not so per se or proprio vigore. A looser practice in the colonies, but no difference of principle, except under statute, appears to have been tolerated. Wood cock's Laws, etc. 273.

In accordance with this, Tucker, in his Ap 479*] pendix to Part I. *of 1 Black. Com. 432, after a careful examination of charters and other documents, comes to the conclusion, that the laws at home before emigration, both statute and common law, so far as applicable to the condition of the colonies, and in favor of

In connection with this, all the admiralty reports we have of cases before the Revolution, and of cases between 1776 and 1789, seem to corroborate the same view, and are worth more to show the actual jurisdiction here than hundreds of old commissions containing obsolete powers never enforced. There is a manuscript volume of Auchmuty's decisions made in the Vice-Admiralty Court in Massachusetts, about 1740. See Curtis's Merchant Seamen, 348, note. It will be difficult to find in them, even in one colony, much more in the thirteen, clear evidence of any change here, before the Revolution, in respect to the law concerning the locality of torts.

The very first case of Quitteville v. Woodbury (April 15, 1740) is a libel for trespass. But it is carefully averred to have taken place "at the Bay of Hondurus, upon the open sea, on board the ship King George."

*No other case of tort is printed, and [*480 on a careful examination of what has not been printed no case is found varying the principle. There is one for conversion of a vessel and cargo, July 30th, 1742, tried before George Cradock, deputy-judge in admiralty, Farrington v. Dennis. But the conversion happened on the high seas, or what in those days was often termed the "deep sea." So a decision in the State of Delaware, in 1788, reported in the

1.-Woodcock on the British Colonies is equally explicit, that the vice-admiralty courts in the colonies were called so because in fact subordinate to the admiralty at home, and with like jurisdiction, except where altered by positive statute. Thus, speaking of "the jurisdiction of the admiralty over subjects of maritime contract," he says: With respect to this authority it may be only necessary to observe, that in such matters the Adto the course of the same court in England.” (P. miralty Court in the colonies holds plea agreeably 272).


Introduction to 4 Dall. 2 (last edit.); the judge | jury trials and encroaching on State jurisdicseems to concede it to be law in that colony, tions, without any express grant or authority that all cases, except prize ones, must happen to that effect, let me ask, what are the analo"on the high seas" in order to give the ad-gies? The only ones which can be imagined miralty jurisdiction over them. are cases of crimes, contracts, and seizures for So a few cases before the adoption of the breaches of laws of revenue and trade. But Constitution are reported in Bee's Admiralty the decisions as to crimes prove directly the reDecisions, though they are mostly on contracts. | But they all make a merit of conforming to the course in the English admiralty, rather than exhibiting departures from and enlargements of its jurisdiction. See one in A. D. 1781 (Bee's Adm. 425), and another in the same year (p. 419), and another in 1785 (p. 369). But the most decisive of all is a case in A. D. 1780, in the High Court of Appeals in Pennsylvania, Montgomery v. Henry et al. 1 Dall. 49.

It was a proceeding in admiralty, regarded by some as sounding in tort, and by some in contract; but as to the line of jurisdiction, this having happened, as averred, on the River Delaware, the court say, through Reed, their president: "But it appears to us, that from the 13th and 15th Richard II. the admiralty has had jurisdiction on all waters out of the body of the county. There has been great debate as to what is meant by high seas. A road, haven, or even river, not within the body of the county, is high sea in the idea of civilians. Therefore, if the River Delaware is out of the body of any county, we think it clear that it is within the admiralty jurisdiction."

In respect to them, no change whatever on this point has occurred, and the rule recognized in this country as the true one concerning their locality is, like that in England, if tried in admiralty as being crimes by admiralty law, they must have been committed without the limits of a county or State. 4 Mason, C. C. 308; 5 Ibid. 290; 1 Dall. 49; 3 Wheat. 336, 371; 5 Ibid. 76, 379; 12 Ibid. 623; 4 Wash. C. C. 375; Baldw. C. C. 35.

And all crimes on the waters of the United States made punishable in the courts of the United States, by acts of Congress, with few or no exceptions, if connected solely with admiralty jurisdiction, are scrupulously required to have been committed on the sea or the high seas, "out of the jurisdiction of any particular State."

In all criminal cases in admiralty in England, the trial has also been by jury, by an express act of Parliament, ever since the 32 Henry VIII. (Com. Dig. Admiralty), and SO far from the same principle not being considered in force here, the Constitution itself, before any amendments, expressly provided for ail criminal trials of every kind being by a jury. Art. 3, sec. 2, and Federalist, No. 81.

In short, as to this matter the first principles of English jurisprudence, as applicable to her colonies, show that there could be no difference here on a matter of this kind, unless authorized So, the old Confederation (article 9th) auby express statute at home, extending to the thorized Congress to provide courts for the colonies, or by acts of Assembly here, express-trial "of piracies and felonies committed on ly sanctioned at home. the high seas." 1 Laws, Bioren's edit. p. 16. Blackstone says: "For it hath been held, And when Congress did so, they thought it exthat if an uninhabited country be discovered pedient to adopt the same mode of trial for acts and planted by English subjects, all the En-"on the sea" as on the land, and "according glish laws then in being, which are the birthright of every subject, are immediately there in force." 1 Bl. Com. 108; 2 P. Wms. 75. Exceptions of course exist as to matters not applicable to their condition, but none of them reach this case, and require consideration.

Were not we then British colonies, and beginning here in an uninhabited country, or, what is equivalent, tenanted by a people not having any civilized laws? Why, then, were not the principles of English admiralty law in force here in the vice-admiralty courts, as much 481*] *as the English common law in other courts and which has been declared by this tribunal to have been the basis of the jurisprudence of all the States in 1789? 3 Peters, 444. Indeed, any laws in the plantations contrary to or repugnant to English laws were held to be void, if not allowed by Parliament at home. 3 Bl. Com. 109. App. 380, by Tucker.

What is left, then, for the idea to rest on of a change in respect to the locality of torts here, to give admiralty courts jurisdiction over them different from what existed in England in 1776? We have already seen that there is nothing in the Constitution, nothing in any acts of Congress, nothing in any colonial laws, or colonial decisions in the vice-admiralty courts. Some venture to infer it merely from analogies. But denying the competency for courts of limited jurisdiction, like ours, to do this, if impairing

to the course of the common law"; and under a sort of mixed commission, as under the 28 Henry VIII., to try these offenses, consisting of the justices of the Supreme Court in each State, united with the admiralty judge, they imperatively required the use of a jury. Journ. of Ŏld Cong. 65; Duponceau on Juris, 94, 95, note.

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*Finding, then, that any analogy [*482 from crimes directly opposes, rather than favors, any change as to torts, let us proceed to the case of contracts. It will be necessary, before they can be allowed any effect, for their friends to show, that the locality of contracts has been changed here, and then that such change should operate on torts. Contracts, in one aspect of the subject, did not differ as to their locality from torts and crimes before Richard II. any more than after.

But as the question in relation to the locality of contracts here is still undecided, and is before this court awaiting another argument, on account of divisions of opinion among its members in respect to it, no analogy can be drawn to govern other questions from what is itself thus uncertain; and it is not deemed decorous by me to discuss here the moot question as to contracts, or, till the other action pending in relation to them is itself settled, to draw any inference from what I may suppose to be, or not to be, their locality.

Without, then, going farther into the subtilties as to the locality or want of locality of contracts within admiralty jurisdiction, so fully discussed in 2 Gallison, 475, by Judge Story, on the one hand, and in 12 Wheaton, 622, by Justice Johnson, on the other, as well as in the case of The Lexington, at this term, it is enough to say, that is not the question now under consideration. It is, at the nearest, but collateral, and differently situated. For in trespass it was always a test, not only that it happened on the sea, instead of merely tide water, but out of the body of a county.

So thought Congress, likewise, when, Feb. 13th, 1801 (sec. 11th), it conferred on the Circuit Court jurisdiction over "all seizures on land or water, and all penalties and forfeitures made, arising, or accruing under the laws of the United States." This was original cognizance, though not in a court of admiralty, and properly treated seizures on water as on land, and to be all of course tried by a jury. 2 Stat. at Large, 92. This was a change made by Congress itself, aided by some of the first lawyers in the country. But as the whole statute was repealed, on account of the obnoxious circumstances as to the judges under which it was passed, all the changes fell with it.

And above all this, those very writers who contend that locality does not govern the jurisdiction over contracts admit that it controls, The admiralty in England did not exercise and always has controlled, the right to try both any jurisdiction over seizures for revenue, torts and crimes (with the exceptions before though on the ocean. 8 Wheat. 396, note. named, and not influencing this question), dur- But it was in the Court of Exchequer, and was ing all the fluctuations and struggles about devolved on admiralty courts in the colonies contracts during the last four hundred years. for convenience, as no court of exchequer exIn the resolutions said to have been prepared isted there. Duponceau's Jurisdiction, 139, by the judges in 1632, with a view to arrange and note. This additional jurisdiction, howdifferences concerning jurisdiction, no change ever, was not an admiralty one, and ought to or modification is made as to torts. Dunlap's have been used with a jury, if desired, as in the Prac. 13, 14; Bevans's case, 3 Wheat. 365, note. Exchequer. Powers not admiralty are for conNor was there any in the mutual arrange-venience still devolved on admiralty courts; and ment between the different courts in 1575. it was a great grievance, complained of by our See it in 3 Wheat. 367; note; Prynne's Ani- ancestors here, that such a trial was not allowed madversions, 98, 99. And in Crowell's Ordinance of 1648, on the jurisdiction of the admiralty, so much relied on by those friendly to the extension of it, and by some supposed to have been copied and followed in this country, damages by one ship to another were included, but it was meant damages on the sea, being described as "damages happening thereon, or arising at sea in any way." Dunlap's Ad. 16.

in such cases before the Revolution. Undoubtedly it was the expectation of most of those who voted for the Act of 1789, that the trial by jury would not be here withheld in cases of seizures for breach of laws of the revenue, which they had always insisted on as their constitutional right as Englishmen, and, a fortiori, as Americans.

*They had remonstrated early and [*484 Hence, even in admiralty writers and ad- late, and complained of this abridgment of the miralty courts, it is laid down repeatedly, "in trial by jury even in the Declaration of Indetorts, locality ascertains the judicial powers." pendence, and as one prominent cause and jusAnd again, "in all matters of tort, locality is tification of the Revolution. 1 Journal of Old the strict limit." 2 Bro. Civ. and Ad. Law, Congress, 45; 6 Dane's Abr. 357; Baldw. C. 110. So in The Eleanor, 6 Rob. Ad. 40, Lord C. 551. As plenary evidence of this, it is nec483*] *Stowell said, "the locality is every-essary to quote here but a single document, as thing," instead of holding it to be an obsolete or immaterial form.

Lastly, in respect to analogies in seizures for breaches of the laws of revenue and trade, it is claimed that some change has occurred there, which should influence the jurisdiction over torts. But these seizures are not for torts, nor has the change in relation to the trial of them happened on any principle applicable to torts. Moreover, it has been made as to seizures only under express statutes, and the construction put on those statutes; and if this is to be followed by analogy, no change can be made as to torts except by express statutes.

that was drawn up by John Jay, afterwards the Chief Justice of this court. It is the address by the old Congress, October 21st, 1774, to the people of Great Britain, and among other grievances says: "It was ordained, that whenever offenses should be committed in the colonies against particular acts imposing duties and restrictions upon trade, the prosecutor might bring his action for the penalties in the courts of admiralty; by which means the subject lost the advantage of being tried by an honest, uninfluenced jury of the vicinage, and was subjected to the sad necessity of being judged by a single man-a creature of the crown-and according to the course of a law (civil) which exempts the prosecutor from the trouble of proving his accusation, and obliges the defendant either to evince his innocence or to suffer."

Now, after these reprobations of such a practice-after two specific amendments to the Con

But there has never been any such statute as to them, and if without it the change was made by analogy, tide waters would not be the test, as is here contended, but, like cases of seizures, any waters navigable by a boat of ten tons burthen. It is even a matter of very grave doubt, whether a mistake was not committed in refus-stitution to secure the trial by jury in cases being a trial by jury in cases of seizure, under our Judiciary Act, whenever desired, or at least whenever not made on the high seas. Kent, Dane, and several others, think the early decisions made on this, and which have since been merely copied, were probably erroneous. 1 Kent's Com. 376; 6 Dane, 357.

fore doubtful-and after three clauses in the Judiciary Act expressly allowing it in all proper cases, who can believe that they intended in the ninth section of that very act to use language which ought to be construed so as to deprive them entirely of a jury trial in that very class of cases where the refusal of it had long

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been denounced by them as oppressive, unlawful, and one of the grounds for a revolution? Should we thus brand them with duplicity, or tyranny?

of presumption without sufficient data is it to infer that this resisted case of seizures is first strong evidence of a larger jurisdiction in admiralty established here, and likely to be adopted under the Constitution by those who had always ardently opposed it, and next is evidence of a larger jurisdiction in other matters, disconnected entirely with that and all the reasons ever urged in support of it?

The last inquiry on this question of jurisdiction is, What have been the decisions concerning the locality of torts in admiralty in the courts of the United States since the Constitution was adopted?

It is the uncertainty and conflict concerning these, which has in part rendered it necessary to explore with so much care how the law was here, when our present system of government went into operation.

It is a matter of surprise, on a critical examination of the books, to see upon how slight foundations this claimed departure from the *established law in force in England as [*486 to torts rests, when looking to precedents in this country. I do not hesitate to concede to the advocates of a change, that the doctrine has been laid down in two or three respectable compilers. Curtis on Merchant Seamen, 362; Dunlap's Ad. 51. But others oppose it; and we search in vain for reasons assigned anywhere in its favor. The authorities cited from the books of reports in favor of a change here are not believed, in a single instance, to be in point, while several appear to maintain a contrary doctrine.

As a single illustration that their views in the Act of 1789 have probably been misconstrued or misapprehended, if seizures for breaches of the laws of revenue and trade were in reality "cases of admiralty and maritime jurisdiction," as meant in the Constitution, then no statute was necessary, like a clause in that of 1789, to make them so, and to make them so not at the line of tide water, which is here contended for, but wherever a boat of twenty tons could go from the ocean. And if they were not such cases to that extent and in that manner without a statute, but were common law and exchequer cases, then it is certain a statute would not make them "admiralty cases," but might devolve their trial on the District Court, allowing a jury, as that trial was expressly reserved by the amendment to the Constitution in all common law cases. Stokes discloses the derogatory | reason assigned for such a violation of our forefathers' rights by some of the British statutes before the Revolution. Stokes on Constitution of Colonies, 360. With much naiveté, he says: "In prosecutions in the courts of vice-admiralty in the colonies for the breach of any act of Parliament relating to the trade and revenue of the colonies, all questions as well of fact as of 485*] *law are decided by a judge alone, without the intervention of a jury; for such was the inclination of the colonists in many provinces to carry on a contraband trade, that to try the fact of an information by a jury would be al- They are sometimes mere dicta, as the leadmost equivalent to the repealing of the act of ing case of De Lovio v. Boit, in 2 Gall. 467, Parliament on which such information was 424, that having been a case of a contract and grounded. In other respects, I apprehend the not a tort; or as in 1 Mason C. C. 96, that proceedings should be conducted as near as having occurred on the high seas. So Thomas may be to the practice of the Court of Excheq- v. Lane, 2 Sumner, 1; Ware, 75, 96; 4 Mason, uer in England." And the reason said to have C. C. 380. Or they are cases cited, such as been assigned by Judge Chase for the construc- Montgomery v. Henry, 1 Dall. 49, which retion first put on the Judiciary Act-that sei- late to contracts alone. See, also, case by Judge zures for violation of the laws of revenue and Conkling, in New York Leg. Ob. Oct. 1846; trade were meant by Congress to be treated as The Mary, 1 Paine's C. C. 673. Or they hapcases in admiralty, and tried without a jury, pened, as was averred in 1 Dall. 53, on waters though they never had been so tried in Eng- out of any county. Or they are cases of seiland till the encroaching statutes, and never zure for breaches of the laws of trade, and navhere except as our fathers declared to be illegal-igation and revenue, depending on express ly-is almost as harsh, and more derogatory on statute alone. The Vengeance, 3 Dall. 297; our fathers themselves, as being an act done by The Betsy, 4 Cranch, 447; Wheelan v. The themselves, in saying it was to avoid "the great United States, 7 Ibid. 112; Conkling's Pr. 350; danger to the revenue if such cases should be 1 Paine's C. C. 504; Gilp. 235; 1 Wheat. 9, left to the caprice of juries. The United States | 20; 8 Ibid. 391. And are, as before explained, v. Betsey, 4 Cranch, 446, note. probably misconstrued.

case of The Vengeance, in 3 Dall. 297, a case which Chancellor Kent, in his Commentaries, justly says “was not sufficiently considered." Vol. I. p. 376. It was not a case of tort, as some seem to suppose; nor even a seizure, under the act of 1789, for a breach of the laws as to revenue and trade. But it was an information for exporting arms, prohibited by a special act, passed 22d May, 1793.

Whoever could conjecture, for such a reason, The parent of many of these mistaken referthat a statute was intended to have such a con-ences, and of the decisions as to seizures, is the struction, seems to have forgotten the remonstrances of our fathers against the odious measures of England corresponding with such a construction; and to have overlooked the probable difference in the feelings of juries towards laws made by themselves or their own representatives, and those made by a Parliament in which they were not represented, and whose doings seemed often designed to oppress, rather than protect, them. And what presumption is there that an exclusion of juries from trials as to trade and revenue, for causes like these, was meant to be extended to torts?

The reason is totally inapplicable, and hence the presumption entirely fails. What a stretch

Some of the references, likewise, are to cases of prize, which in England as well as here never depended on locality, like the high seas, but might be even on land, and were at first conferred on the admiralty courts by special commission, and were not originally a part of

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