of the vessel and the lives and property on board and in their charge, that such conduct was contrary to common honesty, and that the master and owners were liable for loss by reason of such recklessness, as they would have been in case of an affirmative and meditated fraud that had occasioned the same loss, and that this burning was a tort. Whether it is evidence of fraud in fact, as Sir William Jones intimates, or whether it is not, as other writers on bailments declare, is not worthy of discussion. The question is this: Is the measure or liability the same where a ship is burned because the master and crew did not observe the lowest degree of purdence to prevent it, and in a case where she is willfully burned? This is the question for our consideration. In the civil law, I apprehend no distinction in the cases put exists; nor do I believe any exists at common law. But by the laws of the United States, such gross and reckless negligence as that proved in the case before us was a fraud and a tort on the shippers, and the fire that occurred, and conséquent loss of life, a crime on the part of the master. By the twelfth section of the Act of 1338; chap. 191, every person employed on any steam394*] boat or vessel, by whose negligence to his respective duty the life of any person shall be destroyed, shall be deemed guilty of manslaughter, and subject to conviction and imprisonment at hard labor for a time not exceeding ten years. (5 Statutes at Large, 306.) Here the Legislature have put gross negligence in the category of crimes of a high grade, and of frauds of course; nor can this court assume a less stringent principle, in a case of loss of property, than Congress has recognized as the true one, if life be destroyed by such negligence. From the facts before us, I feel warranted in saying, that, had the captain survived the destruction of the ship and the loss of many lives by the disaster, he would have been clearly guilty according to the twelfth section. One single circumstance is decisive of the culpable negligence. By section ninth of the above act, it is made "the duty of the master and owner of every steam vessel employed on the sea. to provide, as a part of the necessary furniture, a suction hose and fire engine and hose suitable to be worked on said boat in case of fire, and carry the same upon each and every voyage, in good order." This vessel had something of the kind; but it was in no order for use, and a mere delusion, and a sheer fraud on the law and public. Had there been such an engine and hose, the fire could have been extinguished in all probability, as I apprehend. 2. There was only a single rigged bucket on board, and nothing else to reach the water with, and the money of libelants was thrown from the boxes, and they used to lift water. 3. The flue from the furnace ran through three decks, and was red hot through the three decks, and the cotton was stowed within eigh teen inches on all sides of this red hot flue, and the bales pressed in, three tiers deep, from the boiler deck to the next deck so that it would have been with much difficulty that the cotton could have been removed should a fire occur; there the fire did occur, and the cotton was not removed-wherefore the vessel was burnt. And from the mode of stowage a fire could hardly be avoided, and was to be expected and guarded against. Then as to the jurisdiction. The fire occurred on the high sea. It was a tort there. The case depends not on any contract, but on mere tort standing beyond the contract. The locality of the tort is the locus of jurisdiction. Locality is the strict limit. (2 Bro. Adm. Law, 110; 3 Bl. Com., 106; the conflict between the Luda and De Soto, in Louisiana, 1847, 5 Howard.) But especially 2 Bro. Adm. Law. 144, which lays down the true doctrine as follows: "We have now done with the effect of the master's contracts *or violence, as to [*395 his owners, and proceed to consider how he and they are affected by his negligence. And, first, as soon as merchandises and other commodities be put on board a ship, whether she be riding in a port or haven, or upon the high sea, the master is chargeable therewith; and if the same be lost or purloined, or sustain any damage, hurt, or loss, whether in the haven or port before, or upon the seas after, she is upon her voyage, whether it be by mariners or by any other through their permission, the owner of the goods has his election to charge either master or owners, or both, at his pleasure-though he can have but one satisfaction-in a court of common law, if the fault be committed infra corpus comitatus; in the admiralty, if super altum mare; and if it be on a place where there is divisum imperium, then in one or the other, according to the flux or reflux of the sea." I think the libel in this case covers my view of it. It sets out the facts of how the money was shipped in general terms, but avers it was lost by fire, and by reason of an insufficient furnace, insufficient machinery, furniture rigging, and equipments, and the careless, negligent, and improper management of said steamboat Lexington by the servants and agents of the Navigation Company. If this technical objection had been addressed to the court below, it could have been easily remedied, and cannot be favorably heard here, now, no doubt, made for the first time. I therefore think there was jurisdiction in the Circuit Court to try the libel; and, second, that the decree was proper, and ought to be affirmed, without alteration. Mr. Justice DANIEL: The inquiries presented for consideration in this cause resolve themselves into two obvious or natural divisions; the one involving the rights of the parties as growing out of their alleged undertakings; the other the right of the libelant to prosecute his claim in the mode adopted in the court below, and the power of the court to adjudicate it in that or in any other mode whatever. This latter inquiry, embracing as it does the nature and extent of the admiralty powers of the government of the United States, and by consequence the construction of that article of the Constitution by which alone those powers have been invested, challenges the most solemn, deliberate, and careful investigation. I approach that investigation with the diffidence which its wide spread interest and importance, and a deep conviction of my own deficiences, cannot but awaken. The foundation, nay, the whole extent and 396*] fabric, of the admiralty power of the government are to be found in that portion of the second section of the third article of the Constitution which declares that the judicial power shall extend (amongst other subjects of cognizance there enumerated) "to all cases of admiralty and maritime jurisdiction." The distribution of this admiralty power so created by the Constitution, with reference to the tribunals by which, and the modes in which, it shall be executed, is contained in the Act to establish the judicial courts of the United States of 1789, section ninth, which constitutes the district courts of the United States courts of exclusive original cognizance of all civil causes of admiralty and maritime juris diction, and of certain seizures under the laws of imposts, concluding or qualifying this investment of power with these plain and significant terms: saving to suitors, in all cases, the right of a common law remedy, where the com mon law is competent to give it.' 64 Looking now to the provisions of the third article of the Constitution, and to those of the ninth section of the Judiciary Act, we recur to the inquiry, What is this civil and maritime jurisdiction derived from the Constitution, and vested by the Judiciary Act in the district courts —what the standard by which its scope and power, its "space and verge," are to be measured-what the rules to be observed in the mode of its execution? Although the Constitution and Act of Congress do not precisely define nor enumerate the former, nor prescribe in forms and precedents the latter, yet it will hardly be pretended, that either the substance or the forms of admiralty jurisdiction were designed by the founders of our jurisprudence to be left without limit, to be dependent on surmise merely, or controlled by fashion or ca price. They were both ordained in reference to some known standard in the knowledge and contemplation of the statesman and legislator, and the ascertainment of that standard by his tory, by legislative and judicial records, must furnish the just response to the inquiry here propunded. In tracing the origin, existence, and progress of the colonial institutions, or in seeking illus trations or analogies requisite for the comprehension of those institutions down to the period of separation from the mother country, it is to the laws and policy of the latter that we must chiefly look as guides to anything like accurate results in our investigations. For the necessity here intimated, various and obvious causes will at once be perceived. As instances of these may be exemplified-1st, similarity of education and opinion, strengthened by intercourse and habit; 2d, national pride, and the partiality which naturally creates in the offspring admiration and imitation of the parent; 3d, identity of civil and political rights in the 397*] *people of both regions: 4th, and chiefly, perhaps the jealousy of the mother country with regard to her national unity, power, and greatness-a principle which has ever prompted her to bind in the closest practicable system of efficient uniformity and conformity the various members of her extended empire. These causes have had their full ef fect in rugulating the rights of person and of property amongst British subjects everywhere within the dominions of England. There is not, and never has been, a question connected with either, in which we do not find every En glishman appealing to the common law, or to the charters and statutes of England, as defining the nature and as furnishing the best protection of his rights. He uniformly clings to these as constituting at once his birthright, his pride, and his security. (Vide 1 Bl. Com., 127, 128.) Would it not be most strange, then, with this strong tenacity of adherance to their peculiar national polity and institutions, that we should suppose the government or the people of England disposed to yield their cherished laws and customs in matters which peculiarly affect them in a national point of view, to wit, the administration of their maritime and commercial rights and interests? It would seem to me equally reasonable to expect that the admiralty courts of England, or any part of the dominions of England, in order to define or settle their jurisdiction, would as soon be permitted to adopt, as the source and foundation and measure of their power, the ordinances, if such there be, of China or Thibet, as those of France, Genoa, or Venice, or of any other portion of the continent of Europe, whether established by the several local governments on the continent or based upon the authority of the civil law. With respect to the realm of England, the origin and powers of the Court of Admiralty are placed upon a footing which leaves them no longer subjects of speculation or uncertainty. Sir William Blackstone, in his Commentaries (Vol. III., chap., 5, p. 69), informs usupon the authority of Sir Henry Spelman (Glossary, 13), and of Lambard (Archeion, 41) that the Court of Admiralty was first erected ed by King Edward III. Sir Matthew Hale, in his History of the Common Law (Vol. I., p. 51, London editition of 1794, by Runnington), speaking of the Court of Admiralty, says: This court is not bottomed or founded upon the authority of the civil law, but hath both its powers and jurisdiction by the law and custom of the realm in such matters as are proper for its cognizance." And in a note (m) by the editor to the page just cited, is is said, "The original jurisdiction of the admiralty is either by the connivance or permission of the common court laws. The statutes are only in affirmance of the common law, and to *prevent [*398 the great power which the admiralty had gotten in consequence of the Laws of Oleron. That, generally speaking, the courts of admiralty have no jurisdiction in matters of contracts done or made on land; and the true reason for their jurisdiction in matters done at sea is, because no jury can come from thence; for if the matter arise in any place from which the pais can come, the common law will not suffer the subject to be drawn ad aliud examen." And for this doctrine are cited 12 Reports, 129; Roll. Abr., 531; Owen, 122; Brownlow, 37 a; Roll. Rep., 413; 1 Wilson, 101; Hobart, 12; and Fortescue, De Laudibus, 103. edit. 1775.) Again, Lord Hale (Vol. I., pp. 49-51), speaking of the jurisdiction of the admiralty, lays down the following limits to its power: The jurisdiction of the Admiralty Court, as to the matter of it, is confined by the laws of the realm to things done upon the high sea only: as depredations and piracies upon the high sea, time" in the section just mentioned. What I would principally advert to here is the description of the causes denominated "maritime," and as falling solely and peculiarly within the admiralty jurisdiction, and to the reason why they are thus denominated "maritime," and as such assigned to the admiralty. They are, says this learned commentator, "maritime, or such injuries as, although they are in their nature of common law cognizance, yet, being commited on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must, therefore, be causes arising wholly upon the sea, and not within the precincts of any county." Here, then, is the explicit declaration, that it is the theatre, the place of their origin and performance, exclusively, not their relation to maritime subjects, which determines their forum; for they offenses of masters and mariners upon the high placed upon the second section of the third sea; maritime contracts made and to be execu- article of the Constitution, as implying an ented upon the high sea; matters of prize and re- largement of the powers conferred, from a conprisal upon the high sea. But touching connection of the terms "admiralty" and "maritracts or things made within the bodies of the English counties, or upon the land beyond the sea, though the execution thereof be in some measure upon the high sea, as charter parties or contracts made even upon the high sea-touching things that are not in their own nature maritime, as a bond or contract for the payment of money; so, also, of damages in navigable rivers, within the bodies of counties, things done upon the shore at low water, wreck of the sea, &c.; these things belong not to the admiral's jurisdiction. And thus the common law and the statutes of 13 Richard II., cap. 15, and of 15 Richard II., cap. 3, confine and limit their jurisdiction to matters maritime, and such only as are done upon the high sea. In this cursory view of Lord Hale of the admiralty jurisdiction, there is one feature which cannot escape the most superficial observation; and that is, the extraordinary care of this learned judge to avoid every implication from un-are causes, says he, which in their nature may certainty or obscurity of terms, which might be wrested as a pretext for the assumption of power not clear, well founded, and legitimate. In the extract above given, it will be seen that the sea, as the theatre of the admiralty power, is mentioned in eight different instances, in every one of which it is accompained with the adjunct high. Altum mare is given as the only legitimate province of the admiral's authority; and then, as if to exclude the possibility of improper implication, are placed in immediate and striking contrast the transactions and the situations as to which, by the common law and the statutes of England, the interference of the admiralty was utterly inhibited. But," he 399*] *proceeds to say, "touching contracts or things made within the bodies of the English counties, or upon the land beyond the sea, though the execution thereof be in some measure upon the high sea, as charter-parties or contracts made even upon the high sea-touching things that are not in their own nature maritime, as a bond or contract for the payment of money: so, also, of damages in navigable rivers, within the bodies of English counties, things done upon the shore at low water, wreck of the sea, &c.; these things belong not to the admiral's jurisdiction.' Sir William Blackstone, treating of the cognizance of private wrongs (Book 3, chap. 7, p. 106), speaks of injuries cognizable by the maritime or admiralty courts. "These courts," say this writer, "have jurisdiction and power to try and determine all maritime causes, or such injuries as, although they are in their nature of common law cognizance, yet, being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must, therefore, be causes arising wholly upon the sea.' He then cities the statutes 13 and 15 Rich. II., Co. Litt., 260, Hob., 79, and 5 Reports 106, for the positions thus asserted. I shall, in the progress of this opinion, have occasion further to remark upon this language, "courts maritime or admiralty courts," here used by this learned commentator, when I come to speak of an interpretation be of common law cognizance In this connection it seems not out of place to advert to the discrimination made by the same author between the pretensions to power advanced by *certain tribunals which subsisted and [*400 grew up rather by toleration than as forming any fundamental and regular portions of the British constitution. Thus, in Book 3, chap. 7, pp. 86, 87, speaking of the ecclesiastical, military and maritime courts, and the courts of common law, he says: And with regard to the three first, I must beg leave, not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction by the officers and judges of those respective courts, but what the common law allows and permits to be so. For these eccentrical tribunals (which are principally guided by the rules of the imperial and canon laws), as they subsist and are admitted in England, not by any right of their own, but upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden to be discussed or drawn in question before them. It matters not what the Pandects of Justinian or the Decretals of Gregory have ordained; they are of no more intrinsic authorty than the laws of Solon or Lycurgus; curious, perhaps, for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by its own municipal laws, which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance which other nations have referred entirely to the temporal courts, as concerning wills and successions to intestates' chattels; and perhaps we may, in our turn, prohibit them from interfering in some controversies which, on the Continent, may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to deter 400 SUPREME COURT OF THE UNITED STATES. mine the jurisdiction of our courts; and if any tribunals whatsoever attempt to exceed the limits so prescribed to them, the king's courts of common law may and do prohibit them, and in some cases punish their judges." So far, then, as the opinions of Hale and Black stone are entitled to respect-so far as the writings and decisions of the venerable expounders of the British constitution to which they refer may be regarded as authority-the orgin and powers of the admiralty in England, the subjects permitted to its peculiar cognizance, the control exerted to restrict it to that peculiar cognizance by the common law tribunals, would seem not to be matters of uncertainity. Sir William Blackstone, too, is a writer of modern date, and, as such, his opinions may claim exemption from the influence of conflict of 401*] *bigotry or prejudice, which the advocates of the admiralty seem disposed to attribute to the opinions or the times of Spelman, of Fortescue, and Coke. 1848 with the general conclusion to which his investigations on this head had conducted him, in the following words: "The result of our inquiries in the present chapter, as to the extent of the jurisdiction of the Instance Court of Admiralty which is at present seemingly allowed by the common law courts, is, that it is confined in matters of contract to suits for sea- [*402 men's wages (on all hands admitted to be an exception to the rule restricting the admiralty to the sea), or to those on hypothecations. In matters of tort, to actions for assault, collision, and spoil and in quasi contracts, to actions by part owners for security, and actions of salv age; but if a party," says he, institute a suit in that court on a charter-party, for freight, in a cause of average and contribution, or to decide the property of a ship, and be not prohibited, I do not see how the court could refuse to retain it." In this concluding passage from Mr. Browne's chapter on the jurisdiction of the instance courts, there are two circumstances Passing from the testimony of the writers which impress themselves upon our attention, already mentioned, let us call in a witness as as seemingly, indeed palpably, irreconcilable to the admiralty powers and jurisdiction, as with the law or with each other. The first is existing in England for a century past, at least, the concession (a concession said to be made whom no one will suspect of disaffection to upon a general survey of the subject) as to the that jurisdiction. I allude to Mr. Arthur limit imposed by the common law tribunals Browne, Professor of Civil Law in the Univer- upon the admiralty; the second, the opinion, in sity of Dublin, in whose learned book scarcely the very face of this concession, that the adany assertion of power ever made by the admiralty, if it should not be actually prohibited, miralty courts, however reprobated and denied if it could only escape the vigilance of the by the common law tribunais, is not com common law courts, might proceed, might mended, if not justified, and scarcely one re- make an incursion within this established, this trenchment or denial of power to the former is prohibited, nay, conceded boundary. Opinions not as zealously disapproved. Let us hear what like these evince an adherence to the admiralty this witness is compelled, though_multo cum apparently extreme, and almost contumacious; gemitu, to admit, with respect to the jurisdic- and it may be owing to this division, that detion of the instance court in cases civil and cisions have been pressed into its support, maritime cases identical in their character which, to my apprehension, do not come diwith that now under consideration. After directly up to the point they are called to fortify, lating upon the resolutions of 1632, and upon what by him are designated as the irresistible arguments of Sir Leoline Jenkins in favor of the powers of his own court, Professor Browne is driven to the following concessions. Of the common law courts he says (Vol. II., p. 74): "Adhering on their part to the strict letter of the rule, that the business of the admiralty was only with contracts made upon the sea, they here tock locality as the only boundary, though in the instances before mentioned, of contracts made on sea, they refused this limit; and having insisted, as indeed Judge Blackstone has even of late done, that contracts upon land, though to be executed on the sea, and contracts at sea, if to be executed on land, were not cognizable by the admiralty, they left to it the idle power of trying contracts made upon the sea to be also executed upon the sea, of which one instance might not happen in ten years.' Again (p. 85), speaking of what he characterizes as the torrent of prohibitions which poured forth from the common law courts." he tells us, that "little was left for the authority of the admiral to operate upon, in the subject of contracts, amidst those curbs so eagerly and rapidly thrown upon him in the last century, save express hypothecations of ship or goods made at sea or in foreign ports, and suits for seamen's wages." At the close of this chapter on the jurisdiction of the instance courts, Mr. Browne presents his readers This or, if they did, are too few in number and too previously (2 T. R., 649), in which a [*403 natural distinction is taken between the extent of the right to prohibit the jurisdiction of the admiralty before sentence, and the right to if authority at all. to sustain the theory or the impeach its proceedings after they are con- partialties of Professor Browne. Indeed, the summated and carried into execution without utmost that can be drawn from this case in interference. In the latter case, Buller, whose favor of those theories is an expression of be remarks have been quoted from Menetone v. Giblief, by Justice Buller, that my Lord Coke bons, says (p. 654): There is a great difference entertained not only a jealousy of, but an enbetween applications to this court for prohibi- mity against, the admiralty; a belief which, tions to the admiralty pending the suit and after whether well or ill founded, must be equally sentence: in the first case, this court will ex- unimportant-equally impotent to impugn an amine the whole case, and see the grounds of inveterate, a confirmed, nay, an admitted the proceedings in the admiralty: but the rule course and body of jurisprudence. Upon a is quite the reverse after sentence is passed: in review of all the authorities to which I have such a case, they will not look out of the pro- had access, the conclusion of my mind is cerceedings; for the party who applies for a pro-tain and satisfactory, that, with some temporary hibition after sentence must show a nullity of deviations or irregularities, such as the resolu jurisdiction on the face of the proceedings; tions of 1632, the jurisdiction of the Instance therefore the plaintiff in this case could not go Court of the Admiralty, both by the common into evidence at the trial to impeach the decree law and by the statutes of 13 and 15 Richard II., of the Court of Admiralty. The case states, in down to the period at which, during the reign general terms, that that court did pronounce a of the present queen, that jurisdiction was ecree for the sale of the ship in question, and enlarged, was, in matters of contract (with the that a warrant issued out of that court for known exception of seamen's wages), limited seizing and selling the ship. So that we must to maritime contracts made and to be executed take it that they had jurisdiction, for nothing upon the high sea, and to cases of hypothecation appears on the face of the decree to show that of the ship upon her voyage; and in matters they had not." Showing, conclusively, that of civil tort, to cases also occurring upon the this case determined nothing as to the original sea. without the body of the country. But legitimate powers either of the common law or this restriction upon the jurisdiction of the inadmiralty tribunals, but positively refusing to stance courts of England, so uniformly maininstitute a comparison between them. The next tained by the common law courts of that case adduced by Mr. Browne, and the last country-acknowledged, however condemned, which I shall notice, is that of Smart v. Wolf by Mr. Browne, and admitted in argument in (3T. R., 323). The first remark which is per- this case-it is contended, does not apply to tinent to this case is, that it was a case of prize, the powers and jurisdiction of the like courts one of a class universally admitted to belong in the United States, and did not apply at the peculiarly and exclusively to a court of ad period when the federal Constitution was miralty; and the question propounded in it, adopted, but that a jurisdiction more varied and the only question, was as to the proceeding and enlarged, as practiced in the British colopracticed by the court for carrying into effect nies in North America, and under the general this, its undoubted jurisdiction. There the confederation at the adoption of the Constitugoods had been, by an interlocutory order, tion, was in the contemplation of the framers delivered to the captors, upon a stipulation to of this Constitution, and must therefore be rerespond for freight, if allowed on the final ferred to as the measure of the powers condecree; and the amount of freight ultimately ferred in the language of the second section of allowed being greater than that covered by the the third article--all cases of admiralty and stipulation, the curt, by a proceeding sub- maritime jurisdiction." In testing the accuracy stantially in rem, ordered the captors to bring of these positions, it would be asking too much in so much of the cargo as would be equal to of this court to receive as binding authority the excess of the allowancs beyond the amount the decisions of *tribunals inferior to it- [*405 of the stipulation. A rule for a prohibition self, farther than they rest upon indisputable obtained from the King's Bench was, upon full and clear historical truths in our colonial hisargument, discharged, and the grounds of the tory; truths, too, which shall sustain a regular court's decision are fully disclosed in the opin- and recognized system of jurisdiction. It will ion of all the judges, in accordance with the not be sufficient to allege some obscure, eccen reasoning of Mr. Justice Buller, who is here tric, or occasional exertions of power, if they particularly quoted because he has been referred could be adduced, and upon these to attempt to as favorable to the doctrines of Mr. Browne, to buid up an hypothesis or a system-nay. and who thus expresses himself: Every case more, to affirm them to be conclusive proofs of 404*] that I know on this subject is a *clea a system established, general, well known to authority to show that questions of prize and and understood by the framers of the Constitutheir consequences are solely and exclusively tion, and therefore entering necessarily into of the admiralty jurisdiction. After the cases of their acceptation of the terms “ admiralty and Lindo v. Rodney, Le Caux v. Eden, and Liv maritime jurisdiction." The danger of yieldingston v. McKenzie, it would only be a waste ing to such scanty and inadequate testimony of time to enter into reasons to show that this must be obvious to every mind. The still court has no jurisdiction over those subjects. greater danger of theorizing upon words not Still less reason is there for saying, that the of precise or definite import. freed from the admiralty shall be prevented from proceeding restraints of settled acceptation, has been exafter it has made an interlocutory decree; be- emplified in our own time and country, in an cause that would be to say, that the admiralty able, learned and ingenious effort to confer on has jurisdiction at the beginning of the suit, the admiralty here powers not merely co-extenand not at the end of it." The case of Smart | sive with the most ambitious pretensions of the v. Wolf, then, is assuredly no direct authority, English admiralty at any period of its exist | |