صور الصفحة
PDF
النشر الإلكتروني

hearing. For this purpose, it would seem, the two Judges divided, in order that it might be carried, (as in fact it was) up to the Supreme Court of the United States.

If this desire, which it seems was general among the profession, had not prevailed, it is probable that the difference between the case of the United States v. Hudson and Goodwin and the present one, would have been immediately perceived. The former was a case of libel of which no express cognisance is given by the Constitution to the federal Courts, while this was one of admiralty jurisdiction, committed exclusively to those tribunals in the most direct and explicit terms. The admiralty is governed by a peculiar law of its own, which may be called (as it is the fashion to call every thing) a part of the common law; still it is not the common law in its usual and more restricted acceptation. Whether or not the offence charged was indictable under the admiralty law, is the simple question which appeared to result from the state of the case; yet so much did ideas turn upon the common law and common law jurisdiction, that Mr. Gallison at the head of his report of this case, states the question to have been, Whether the Circuit Court of the United States has jurisdiction over common law offences against the United States? It is highly probable that this was the point of view in which it was considered by the counsel who argued the cause. Their argument is not in print.

Judge Story, however, did not express himself

[ocr errors]

thus. The simple question," said he "is whether the Circuit Court of the United States has jurisdiction to punish offences against the United States, which have not been previously defined, and a specific punishment affixed, by some statute of the United States." This was coming much nearer to the true point in controversy; but still, I shall, with due respect to the opinions of this learned and able Judge, endeavour to show, that it is stated in too general a manner, and that had it been confined to a Court sitting in the exercise of admiralty jurisdiction, it would have admitted of a more complete and more easy solution.

But it is evident, (to me at least) that Judge Story had the general question, which had so much and so long agitated the bar and the bench, always before his eyes.

This question the learned Judge decided in the affirmative. As applied to the case before him, there can be no doubt of the correctness of his decision, any more than of that of the Supreme Court of the United States, in the case of the United States v. Hudson and Goodwin, although they seem to be in direct opposition to each other. The reason is, in my opinion, that in both these cases, the Judges were led by the counsel into too wide a field of argument, and assumed as general principles, rules which, although correct, as applied to particular cases, were not so as applied to all. This is what I shall endeavour to demonstrate in the following address.

It is remarkable that the decisions of the Judges in each of the four above mentioned cases, although on general principles, they are apparently irreconcilable, yet are all perfectly correct as applied to each particular case. In the United States v. Worrall, Judge Chase, and in the United States v. Hudson and Goodwin, the Supreme Court were right in deciding that their respective tribunals had not jurisdiction of the particular case, while in the United States v. Coolidge Judge Story was also right in deciding the reverse. In like manner, in the case of the United States v. Burr, Mr. Chief Justice Marshall, decided with great propriety, in refusing to follow the course pointed out by the local law of Virginia. I shall not attempt to disturb any of these decisions.* The difficulty of the questions which I have undertaken to examine, will be found all to result from the obites dicta of the Judges.

The case of the United States v. Coolidge was carried up by appeal to the Supreme Court. Richard Rush, Esq. then Attorney General of the United States, a gentleman whose talents do honour to his profession, being persuaded that the opinion of the majority of the Court was fixed on the general question, and that it would be in vain to attempt to discriminate between particular cases, gave up the cause without argument. The Court,

* I do not consider the reversal of the judgment in the United States v. Coolidge, as a deliberate decision of the Supreme Court, as it was not given upon a full view of the facts, and was submitted to by counsel without argument.

therefore, did no more than confirm their former decision in the case of the United States v. Hudson and Goodwin, under the belief that the one submitted arose from similar facts. Several of the Judges, however, expressed a wish to hear an argument whenever a proper opportunity should offer.

How came the

That the bar and the bench should take a legal question in too general a point of view, and fix their minds so steadily upon it, as to be unwilling to believe that it may admit of distinctions in particular cases, is a thing not at all to be wondered at, or to be interpreted to the disparagement of their learning or sagacity. Similar things have happened in every country. English bar and bench, and even that truly great man, Lord Mansfield, in the case of BERNARDI v. MOTTEUX,* and in every subsequent case until very lately, to take it at once for granted, by an overstrained extension of the principle laid down by the Court, in the case of HUGHES v. CORNELIUS,† that the sentence of a foreign Court of admiralty, was conclusive against all the world, not only as to its effects, but as to every matter of fact which it professed to decide? By what strange hallucination did they persuade themselves that this doctrine was a settled principle of the law or comity of nations, while the opposite doctrine is laid down by all the foreign writers, who have

* Douglas, 554.

2. Shower, 232.

taken the subject into their consideration? How came they not to perceive that the moral character of their nation, was implicated in a principle which permitted English underwriters to receive high war premiums for insuring neutral property against capture by belligerents, and its attendant confiscation, and to refuse paying the loss when it happened, on the ground that the property was not neutral, because it had been condemned? This is not said with a view to depreciate the talents or impeach the rectitude of the English Judges, but to show that the best and the greatest men will sometimes receive impressions, which are afterwards difficult to be eradicated. Besides, this is not written with a view to Europe, but to this country, where the doctrine of conclusiveness of foreign sentences has still too many friends.

The distribution of powers under the Constitution of the United States is so entirely new, and involves so many nice, and difficult questions of

*

Regis et principis factum connumeratur inter casus fortuitos. Roccus, de assec. not. 65. Merces captæ à potestate, seu judice administrante in illo loco, tenentur assecuratores.-Quod judex facit injustè, dicitur casus fortuitus, and in assecuratione pertinet ad illum qui in se suscepit casum fortuitum. Ibid. not. 54. quotes Straccha, and numerous other authors.

Le fait du Prince est mis dans la classe des cas fortuits. Scaccia, quest. 1. No. 136. Ibib. No. 137. Peu importe que l'injustice procède de la corrup tion du Juge ou de son ignorance. Quid refert sordibus judicis, an stultitiá res perierit, ff. de evictionib. l. 51.-Il est donc certain que les assureurs répon dent de la confiscation injuste prononcée par le tribunal du lieu où le navire pris a été conduit. Emérigon, sur les Assurances, Vol. 1. p. 457.

See also the opinion of this eminent jurist in the case of Angles and others v. The Underwriters, in Valin's Commentary on the Marine Ordinance of Louis XIV. vol. 2. p. 120. in conformity to which the Parliament of Aix gave their sentence on the 28th of June 1759, on the report of M. de Coriolis, Falin. ibid.

« السابقةمتابعة »