CASES ARGUED AND ADJUDGED nr She Supreme tfaurt OT g THE UNITED STATES,. o S? DECEMBER TERM, 1870. « § Xti S' ft E- S § ” * Q REPORTED BY E~< JOHN WILLIAM WALLACE. S O VOL. XI. THE BANKS LAW PUBLISHING COMPANY 21 Murray Street, NEW YORK, 1899. Entered according to Act of Congress, in the year 1871, By W. H. & O. H. Morrison, In the Office of the Librarian of Congress, at Washington. JUDGES OF THB SUPREME COURT OF THE UNITED STATES, DURING THE TIME OF THESE REPORTS. CHIEF JUSTICE. HON. SALMON PORTLAND CHASE. ASSOCIATES. Hon. Samuel Nelson, Hon. Nathan Clifford, Hon. Noah H. Swayne, Hon. Samuel F. Miller, Hon. David Davis, Hon. Stephen J. Field, Hon. William Strong, Hon. Joseph P. Bradley. ATTORNEY-GENERAL. Hon. Amos T. Akerman. CLERK. Daniel Wesley Middleton, Esquire. (iil) ALLOTMENT, ETC., OF THE JUDGES OF THE SUPREME COURT OF THE UNITED STATES, As madb April 4, 1870, under the Acts of Congress of July 23, 1866, and March 2, 1867. NAME OF THE JUDGE, AND STATE WHENCE COMING. NUMBER AND TERRITORY OF THE CIRCUIT. DATE AND AUTHOR OF THE JUDGE’S COMMISSION. CHIEF JUSTICE. Ho». S. P. CHASE, Ohio. FOURTH. Maryland, West Virginia, VIRGINIA, N ORTH Carolina, and South Carolina. 1864. December 6th. President Lincoln. ASSOCIATES. Hon. SAML. NELSON, New York. second. New York, Vermont, and Connecticut. 1845. February 14th. President Tyler. Hon. WM. STRONG, Pennsylvania. third. Pennsylvania, New Jersey, and Delaware. 1870. February 18th. President Grant. Hon. N. CLIFFORD, Maine. first. Maine, New Hampshire, Massachusetts, and Rhode Island. 1858. January 12th. President Buchanan. Hon. J. P. BRADLEY, New Jersey. fifth. Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. 1870. March 21st. President Grant. Hon. N. H. SWAYNE, Ohio. sixth. Ohio, Michigan, Kentucky, and Tennessee. 1862. January 24th. President Lincoln. Hon. S. F. MILLER, Iowa. eighth. Minnesota, Iowa, Missouri, Kansas, and Arkansas. 1862. July 16th. President Lincoln. Hon. DAVID DAVIS, Illinois. seventh. Indiana, Illinois, and Wisconsin. 1862. December 8th. President Lincoln. Hon. S. J. FIELD, California. ninth. California,Oregon, and Nevada. 1863. March 10th. President Lincoln. ( v ) MEMORANDA The Chief Justice, though on the bench and presiding at the argument of some of the cases heard during the time embraced by this volume, was not sufficiently well to participate in the judgment of any here reported. Mr. Justice Nelson having been appointed by the President one of the Joint High Commissioners who assembled at Washington in the spring of 1871, with a view to a settlement by treaty of questions between the United States and Great Britain, was constantly engaged in its discussions during the sittings of the Commission. He accordingly was able to participate in but few of the decisions here reported, beyond those in which he is represented as delivering the judgment of the court ( vtt) GENERAL RULES, PROMULGATED MAY 1st, 18ÏL RULE N.O. 21. TWO COUNSEL. 1. Only two counsel shall be permitted to argue for each party, plaintiff and defendant, in a cause. TWO HOUES. 2. Two hours on each side shall be allowed in the argument of a cause, and no more, without special leave of the court, granted before the argument begins. But the time thus allowed may be apportioned among counsel on the same side, as they choose: Provided always, a fair opening of the case shall be made by the party having the opening and closing argument. BBIEES. 3. Counsel will not be heard unless a printed brief or abstract of the case be first filed, together with the points made, and the authorities cited in support of them, arranged under the respective points. 4. The brief filed on behalf of a plaintiff in error or an appellant shall also contain a statement of the errors relied upon, and in case of an appeal an abstract of the pleadings and proofs, exhibiting clearly and succinctly the issues presented. 5. Each error shall be separately alleged and particularly specified; otherwise it will be disregarded. 6. When the error alleged is to the charge of the court, the part of the charge referred to shall be quoted totidem verbis in the specification. 7. When the error alleged is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence offered, or copy the offer as stated in the bill ofexcep- ( « ) X GENERAL RULES. tions. Any alleged error not in accordance with these rules will be disregarded. 8. Counsel will be confined to a discussion of the errors stated, but the court may, at its discretion, notice any other errors appearing in the record. 9. The same shall be signed by an attorney or counsellor of this court. 10. If one of the parties omits to file such a statement, he cannot be heard, and the case will be heard ex parte upon the argument of the party by whom the statement is filed. 11. Twenty printed copies of the abstract, points, and authorities required by this rule shall be filed with the clerk by the plaintiff in error or appellant six days, and by the defendant in error or appellee three days, before the case is called for argument. 12. When no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel will be heard for the adverse party; but if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel. Ordered, That the second paragraph of the twenty-third rule be a‘mended so as to read as follows, viz.: 2. In all oases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of 10 per cent., in addition to interest, shall be awarded upon the amount of the judgment. TABLE OF OASES. PASS Amy v. The Supervisors,........................136 Bailey Company, Eureka Company v...............48? Bank v. Carrollton Railroad,.................... 62«t “ v. Lanier,................................. 369 “ of Leavenworth v. Hunt, assignee, . . . .391 u Rock Island, Mann v........................650 Blatchford, Coal Company v....................■ 172 Bloomshire, Edmondson v........................382 Burke, New Albany v. ....... 96 Burnley, Cook v........................... 659, 672 Campbell, Generes v......... 193 Carrollton Railroad, Bank v....................624 Case v. Terrell,...............................199 Cherokee Tobacco, The,.........................616 Chicago, City of, Dows v.......................108 City of Chicago, Dows v. . 108 Coal Company v. Blatchford, . . . ■ . . 172 Collector, The, v. Day,........................113 Cook v. Burnley,. . .................... 659, 672 Cowdrey, Galveston Railroad v. ..... 459 Day, The Collector v...........................113 Defrees, Tyler v...............................331 Dewing v. Sears,...............................379 Distilled Spirits, The,........................356 Downer, Transportation Company v...............129 Dows v. City of Chicago,.......................108 Dunham, Insurance Company v. . ... . . 1 Dunphy v. EJeinsmith,....................... . 610 Edmondson v. Bloomshire,.......................382 Eureka Company v. Bailey Company, . . ... 488 ( xi ) XÜ TABLE OF CASES. PAGB Fannie, The,.............................238 Farr v. Thomson et al.,..................139 Ferry Company, The, St. Louis v..........423 Forsyth v. Woods, ........ 484 Francis, Insurance Company v. . . • . . . 210 Galceran, Leon v. ........ 185 Galveston Railroad v. Cowdrey,...........459 Garnett v. United States,................256 Generes v. Campbell, . . . . . . ♦ .193 Halliday v. Hamilton,....................560 Hamilton, Halliday v................... 560 Henderson’s Tobacco, . 652 Howell, United States v..................432 Hunt, Assignee, Bank of Leavenworth v....391 Insurance Company v. Dunham,...............1 “ “ v. Francis,..................210 “ “ v. The Treasurer, . ♦ . . 204 u “ v. Weide,.........................438 Kahn, Stewart v. ......... 493 Kentucky, Missouri v. ....... 395 Kirby, Whiteley v......... 678 Kleinsmith, Dunphy v........ 610 Lanier, Bank v.......... 369 Lawrence, Parmelee v......................36 Leavenworth, Bank of, v. Hunt, assignee, .... 391 Le Claire, May v.........................217 Legal Tender Cases,......................682 Leon v. Galceran,........................185 Levy v. Stewart,.........................244 Ludlow v. Ramsey,........................581 Lynde, United States ....................632 McVeigh v. United States,................259 Mann v. Rock Island Bank,................650 May v. Le Claire,........................217 Meader et al. v. Norton,.................442 TABLE OF CASES. XIÜ PA6I Miller v. United States,.........................268 Missouri v. Kentucky,............................395 Moncure v. Zuntz,................................416 Montello, The,................................. 411 Morgan v. Thornhill, . • • • • • . . 65 New Albany v. Burke, . ...................96 Norton, Meader et al. v. . • • • • . 442 O’Keefe, United States v, . • • • . • • 178 Osborne, Seymour v. .,••••• . 516 Parmelee v. Lawrence, ....... 36 Porter, Cook v........................... 659, 672 Protector, The,...............................82 Ramsey, Ludlow v. . • • . • • . . 581 Rankin v. The State,.........................380 Reed v. United States,.......................591 Rock Island Bank, Mann v.....................650 Sac County, Smith v........................«... 139 St. Louis v. The Ferry Company,..............423 Sapphire, The,.......................... 164 Sears, Dewing v. ........ . 379 Seymour v. Osborne,..........................516 Smith v. Sac County,.........................139 Spirits, The Distilled,......................356 State, The, Rankin v. . 380 Steinback v. Stewart,........................566 Stewart v. Kahn,.............................493 “ Levy v..................................244 “ Steinback v......... 566 Supervisors, The, Amy v. . . . . . . . 136 Terrell, Case v. . , ... . . . . . 199 The Cherokee Tobacco, ... . . . . . 616 “ Collector u. Day, ..........................113 “ Distilled Spirits,..........................356 “ Fannie,.....................................238 “ Ferry Company, St. Louis v...... 423 ¿V TABLE OF CASES. * PAGB The Montello,...........................................411 “ Protector*,........................... . . .82 “ Rock Island Bank, Mann v.............................650 “ Sapphire, ...........................................164 “ State, Rankin v.................................. . 380 “ Supervisors, Amy v...................................136 “ Treasurer, Insurance Company v. . . . 204 Thomson et al., Farr v..................................139 Thornhill, Morgan v. . ........................65 Tobacco, The Cherokee, . . . . . . 616 “ Henderson’s.......................................652 Transportation Company v. Downer, .... 129 Treasurer, The, Insurance Company v.....................204 Tyler v. Defrees,..................................... 331 Tynen, United States v...................................88 United States, Garnett v. 265 “ “ v. Howell, ....... 432 “ “ v. Lynde, . 632 “ “ McVeigh v..................................259 u “ Miller v...................................268 “ “ v. O’Keefe,................................178 “ “ Reed v.....................................591 u “ v. Tynen,...................................88 “ “ v. Wiley,..................................508 “ “ v. Wright, . . •.....................648 Virginia v. West Virginia,...............................39 Weide, Insurance Company v.......................... . 438 West Virginia, Virginia v................................39 Whiteley v. Kirby,.................................. . 678 Wiley, United States v..................................508 Woods, Forsyth v........................................484 Wright, United States v. . 648 Zuntz, Moncure v. . . , . . , . , 416 O 00 DECISIONS^ e CO w « "*“ s § SUPREME COURT OF THE Ul^fife STATES, Q-t Q DECEMBER TERM, 1870^ § Insurance Company v. Dunham. 1. The admiralty and maritime jurisdiction of the United States is not limited by the statutes or judicial prohibitions of England. First. The locus, or territory, of maritime jurisdiction where loris must be committed, and where business must be transacted in order to be maritime in their character, extends not only to the main sea, but to all the navigable waters of the United States, or bordering on the same, whether land-locked or open, salt or fresh, tide or no tide. Secondly. As to contracts, the true criterion whether they are within the admiralty and maritime jurisdiction, is their nature and subject-matter, as, whether they are maritime contracts, having reference to maritime service, maritime transactions, or maritime casualties, without regard to the place where they were made. In view of these principles it was held that the contract of marine insurance is a maritime contract, within the admiralty and maritime juris, diction, though not within the exclusive jurisdiction of the United States courts. 2. The case of De Lovio v. Boil (2 Callison, 398), affirmed. 8. This court has jurisdiction, under the act of 1802, of a certificate of division of opinion between the associate justice of the Supreme Court and the Circuit judge, together holding the Circuit Court, under the act of 1869, as well as between either of the said judges, and the District judge. On certificate of division in opinion between the judges of the Circuit Court for the District of Massachusetts. P) 1 vol.. XI. 2 Insurance Company v. Dunham. [Sup. Ct. Statement of the case. The act of Congress of April 29th, 1802,* provides that “ Whenever any question shall occur before a Circuit Court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, at their next session to be held thereafter, and shall by the said court be finally decided.” At the time when this statute was passed the Circuit Court, when consisting of more than a single judge, was composed of a judge of the Supreme Court of the United States and the District judge of the district sitting together, and this organization remained until April 10th, 1869. By act of that day,f “ to amend the judicial system of the United States,” it was enacted: “That for each of the nine existing judicial circuits there shall be appointed a Circuit judge, who shall reside in his circuit, and shall possess the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit. The Circuit Courts in each circuit shall be held by the justice of the Supreme Court allotted to the circuit; or by the Circuit judge of the circuit; or by the District judge, or by the justice of the Supreme Court and Circuit judge sitting together, ... or, in the absence of either of them, by the other . . . and the District judge.” • in this state of enactment a libel in personam had been filed in the District Court for the District of Massachusetts, by one Dunham against the New England Mutual Marine Insurance Company, on a policy of insurance, dated at Boston on the 2d day of March, 1863, whereby the insurance company, a corporation of Massachusetts, agreed to insure Dunham, the libellant, a citizen of New York, in the sum of $10,000, for whom it might concern, on a vessel called * 2 Stat, at Large, 159. * 16 Id. 44. Dec. 1870.] Insurance Company v. Dunham. & Statement of the case. the Albina, for one year, against the perils of the seas and other perils in the policy mentioned; and the libellant alleged that within the year the said vessel was run into by another vessel on the high seas, through the negligence of those navigating the said other vessel, and sustained much damage, and that the libellant had expended large sums of money in repairing the same, of which he claimed payment of the insurance company. The question was whether the District Court, sitting in admiralty, had jurisdiction to entertain a libel in personam on a policy of marine insurance to recover for a loss. The Constitution ordains, it will be remembered, that “The judicial power shall extend . . to all cases of admiralty and maritime jurisdiction.” And the Judiciary Act of 1789, which established the District Courts, declares that they shall have “ exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . saving to suitors in al] cases the right of a common law remedy where the common law is competent to give it.” The District Court decreed in favor of the libellant, and the insurance company appealed to the Circuit Court. The judges of that court were opposed in opinion on the point raised, and it was accordingly certified to this court. Two questions were thus before this court: 1. Whether since the reorganization of the Circuit Courts under the act of 1869, a difference of opinion between a judge of the Supreme Court and “ the Circuit judge,” created by that act, sitting as the Circuit Court, could be certified to this court under the act of 1802. 2. If it could, what was the proper answer to be returned to the question certified? Had the District Court, sitting in admiralty, jurisdiction to entertain the libel in this case, the same being a libel in personam on a policy of marine insurance to recover for a loss? The latter question was the one to which the briefs of counsel were directed, 4 Insurance Company v. Dunham. [Sup. Ct. Argument in support of the jurisdiction. Mr. F. C. Loring, for the libellants and in support of the jurisdiction : By the universal and unanimous foreign practice and authorities, with one exception only, the contract of marine insurance is considered to be maritime, and a proper subject for the cognizance of a court vested with jurisdiction over maritime cases. It might, therefore, have been anticipated, that when the question came before the admiralty courts of the United States, vested with jurisdiction over all maritime cases, the decision would be in favor of the jurisdiction. This does not seem to have happened for more than twenty years after the adoption of the Constitution. As the courts of common law exercise concurrent jurisdiction over contracts of insurance, and as the plaintiffs in suits thereon would naturally prefer not to waive the benefit of a trial by jury, and of a trial in their own courts; and as the lawyers of that day were brought up according to and by the common law, this is not surprising. No case is found, in the reports of any of the courts of the United States, of an action in the admiralty on a policy of insurance until the year 1815, nor on a charter-party, nor for freight, till 1829.* At the October Terra of the Circuit Court for Massachusetts, in 1815, the question was first presented by a libel on a policy of insurance. A plea to the jurisdiction was interposed, and the result was the opinion of Story, J., in De Lovio v. Boitrf deciding in favor of the jurisdiction. • How this decision was received at the time is not now known. As this court was then constituted, it is probable that the jurisdiction would have been maintained on appeal. Marshall, C. J., affirmed, in The Little Charles,% in 1819, that * No report of a suit in the admiralty on a charter-party or bill of lading has been found before the case of The Spartan (Ware, 149), which was decided in 1829. In 1834, the jurisdiction was denied, and was sustained by Story, J., in The Volunteer (1 Sumner, 551). The question cannot be considered as having been finally settled till the decision of this court in this case of The New Jersey Steamboat Company v. The Merchants' Bank, in 1848 (6 Howard, 344). i 2 Gallison, 398. J 1 Brockenbrough, 380. Dec. 1870.] Insurance Company v. Dunham. $ Argument in support of the jurisdiction. ‘•The courts of the United States have never doubted their right to proceed under their general powers as courts of admiralty, where they are not restrained from the use of these powers by statute.” That Washington, J., would have sustained the jurisdiction, cannot be doubted. In The Seneca* he says: “1 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 ninth section of the Judiciary Act of 1789, embrace all cases of 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.” He afterwards speaks of the ordinances of Louis XIV, as generally adopted, as evidence of the maritime law of nations. Difference of opinion as to the extent of the admiralty jurisdiction has occurred only of late date. It first appears eminently in Ramsay v. Allegro, in 1827, in the dissenting opinion of Johnson, J., with whom have concurred, at different times, Baldwin, and Daniel, and Campbell, JJ., and others to a less extent; but the majority of the court have uniformly held that the practical jurisdiction of the English admiralty affords no rule for the jurisdiction vested in the courts of the United States by the Constitution and by Congress, and that that embraces all maritime contracts. In the reports of this court, and of other courts of the United States, no other reference has been found to the contract of insurance as a matter of admiralty jurisdiction, except in Taylor v. Carrylrf where Taney, C. J., expressed a doubt upon the subject, which had not been presented, or referred to in the argument, and which evidently he had not examined. Considering the authorities apart from the repeated decla- * 18 American Jurist, 486. f 20 Howard, 585. 6 Insurance Company v. Dunham. [Sup. Ct. Argument in support of the jurisdiction. rations of this court, that the admiralty jurisdiction of the District Court extends generally over maritime contracts, and the universal admission that marine insurance is a maritime contract, we have in favor of the jurisdiction three decisions of Story, J., in point.* The opinion of Woodbury, J.,f that insurance is clearly a contract within the admiralty jurisdiction. The fact that Curtis, J., sustained the jurisdiction as a settled practice in the first circuit,J and, as counsel, took no exception to it.§ The decisions of Sprague, J.,|| and Ware, J.,^[ of the District Court, and the opinions of Mr. Dunlap,** Mr. Benedict,fj- Conkling, J.,$J and Chancellor Kent.§§ The weight of authority is in favor of the jurisdiction. Indeed, there is an absence of authority against it, even in England. There is no case on record known, in which the Court of Admiralty has refused to entertain jurisdiction over the subject, or in which the courts of common law have prohibited it. In admiralty commissions, insurance is usually mentioned as a matter over which jurisdiction is to be exercised; and in Scotland, the Court of Admiralty, under similar commissions, constantly entertains such jurisdiction. All that can be said about the exercise of the jurisdiction by the English court is, that, practically, it has not been resorted to. This is no argument against the jurisdiction of the courts of another nation, having jurisdiction over all maritime contracts, which they have exercised for more than fifty years over contracts of insurance. The only * * * § ** * De Lovio v. Boit, 2 Gallison, 398; Peele v. Merchants’ Insurance Co., 8 Mason, 27; Hale v. Washington Insurance Co., 2 Story, 176. f Dean v. Bates, 2 Woodbury & Minot, 88. J Gloucester Insurance Co. v. Younger, 2 Curtis, 322. § Hale v. Washington Insurance Co., supra, *. || Younger v. Gloucester Insurance Co., 1 Sprague, 243. The Spartan, Ware, 152. ** Admiralty Practice, 43. ft Admiralty Practice, 8, 50, 147, 166. ff Admiralty Practice, 13. See note, 1 Kent, 370, in which “Insurance” is mentioned as a matter of settled admiralty jurisdiction. Dec. 1870.] Insurance Company v. Dunham. 7 Argument in support of the jurisdiction. question then, is, whether or not marine insurance is a contract concerning matters of navigation, trade, commerce, &c.; or in other words, a maritime contract. Theie can be only one answer; and the jurisdiction follows of course. An argument in favor of a general jurisdiction of the United States courts in admiralty, over maritime cases, may be drawn from the power vested in Congress to regulate commerce. By virtue of this, Congress may legislate on all commercial matters; it may enact a code of commerce, regulating all affairs of navigation, affreightments, averages, marine insurances, and other maritime matters, and has exercised this power to some extent in those acts which limit the liability of ship-owners, provide for the registration of ships, regulate the carriage of passengers, establish rules for the carrying of lights, the navigation of vessels, &c., &c. It would seem that the jurisdiction of the maritime courts of the United States should be coextensive, and should embrace all commercial and maritime matters which Congress has the power to regulate. The remedies afforded by the United States courts of common law and equity are not adapted to all maritime cases, especially where a lien exists; and as their jurisdiction generally depends on the residence of the parties, it is doubtful whether they could exercise it in all cases; and there might be the anomaly of a government with power to make laws and no tribunals to administer them; and this without remedy; for Congress has vested in the courts it created all the admiralty jurisdiction which the Constitution authorized it to confer. The power is exhausted, and if the United States courts have not jurisdiction over all maritime cases, they cannot acquire it, except by an amendment of the Constitution. If this were attempted, it would be difficult to find words sufficient to create a more ample jurisdiction than those used in the Constitution and consequent act of Congress. If these courts have not jurisdiction over all maritime contracts and cases, it is not for want of certainty and distinctness in the law, but by reason of judicial construction and legislation, limiting the genera] terms used in the Constitution and statute. 8 Insurance Company v. Dunham. [Sup. Ct. Argument in support of the jurisdiction. The question of admiralty jurisdiction is in a measure historical, and to be determined by the jurisdiction actually exercised by the Vice-Admiralty colonial courts before the Revolution; inasmuch as such practical jurisdiction must have been known and contemplated by the framers of the Constitution. Now7 it is a matter of history that the commissions issued by the crown to the judges of the colonial courts of admiralty, conferred, in terms, unlimited jurisdiction over all maritime cases, and usually specified 11 policies of assurance,”* and that these courts, or some of them, exercised this jurisdiction over all maritime cases, without limit or qualification. Until lately not much was known about the jurisdiction actually exercised by these courts. There is little in the books to show what it was. The Province of Massachusetts Bay, which comprised Massachusetts, Maine, and Nova Scotia, was, before the Revolution, probably more largely engaged in commerce than any other, and the records of the Court of Admiralty held in it would be likely to contain more maritime decisions than would be found elsewhere. Under the first charter of the Colony of Massachusetts Bay, admiralty jurisdiction was not reserved to the crown. It was exercised by the Court of Assistants. In Ancient Charters,! will be found a code regulating the rights and duties of mariners, owners, masters, freighters, contributors, &c.; and the last article of the chapter provides that: “ All cases of admiralty shall be heard and determined by the Court of Assistants . . . without jfiry, unless the court shall see cause to the contrary. Provided, always, this act shall not be interpreted to obstruct the just plea of any mariner or merchant impleading any person in any other court, upon any matter or cause that depends upon contract, covenant, or other matter of common equity, in maritime affairs.” In other words, the Court of Assistants was vested with * See the commissions quoted in De Lovio v. Boit, and in .Benedict’s Ad« uuraity Practice, pp. 82,90. He states that he has seen nine commissions. 1 Appendix, 716. Dec. 1879.”] Insurance Company v. Dunham. 9 Argument in support of the jurisdiction. admiralty jurisdiction over all maritime cases of contract, covenant, or other matter of equity, reserving to the courts of common law concurrent jurisdiction, as is done by the Judiciary Act. This act was passed in the year 1673, and shows what was considered to be the proper jurisdiction of the admiralty at that time. No allusion is made to the English practice, though that must have been well known; but the Court of Assistants was vested with the fullest jurisdiction over all maritime contracts, and other matters of (maritime) equity. The act seems to be a code or compilation of rules for the regulation of commerce, navigation, freight, and wages, &c., similar to those to be found in the marine ordinances and other sea-codes, besides appointing a tribunal for their administration. It is quite long, containing thirty sections, of the last of which a part has been quoted. It was probably annulled when the first charter was vacated in 1684. When the charter of the Province of Massachusetts Bay was granted, in 1691, all “ admiral court, jurisdiction, power, or authority,” was reserved to the crown, to be exercised by virtue of commissions to be issued under the great seal.* Some of the commissions issued to the judges of the Admiralty Court provinces may be found in the books, and they confer jurisdiction over all maritime causesand cases in the most unqualified terms.f But until lately, little was known as to what jurisdiction was actually exercised by the judges under these commissions.. In the office,of the District Court for Massachusetts there was only one imperfect volume of the records of the Vice-Admiralty Court of the province. This is not half filled, and contains only a few cases which relate to matters of prize, revenue, and wages. The other * Ancient Charters, p. 36. t A commission is quoted at length in Benedict’s Admiralty, 83, which is stated to be a translation of one issued to Roger Mompesson in 1703, as judge of Vice-Admiralty in the provinces of Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, the Jerseys, New York, and Pennsylvania. In this commission, among other contracts specified, are 11 policies of assurance.'1 10 Insurance Company i Dunham. [Sup. Ct Argument in support of the jurisdiction. volumes were supposed to have been taken to Halifax, at the time of the evacuation of Boston, and to have been lost or destroyed. Lately, two volumes have been found among the papers of a former registrar of the court, and have been deposited in the library of the Boston Athenaeum; they are the second and third volumes, beginning in 1718, and extending to 1733. The first is missing. The one in the clerk’s office extends from 1740 to 1744 only; and the rest are also missing.* An examination of these two volumes discloses that the court exercised jurisdiction over all maritime cases. Besides numerous suits for wages, and liberations, and assaults, they contain records of over fifty cases of libels on maritime contracts. There may be found libels for contribution, both in rem and in personam; on charter-parties, on contracts of affreightment for freight, for nondelivery or damage to goods; between owners for an account; by masters in rem for wages and disbursements; against a mate for non-performance of his contract; for surveys, condemnations, and sales; of material-men, for supplies in home port in rem; against mate, for error in making a bill of lading; by builder of a ship, for its price in rem, after it had been delivered; by passengers, and various other cases. In one case, a consignee sued a master for non-delivery: he answered that the goods were thrown overboard for the common safety; the court found that the jettison was justifiable, and sent the case to commissioners to adjust the average. This decision anticipated that of Dupont v. Vancef more than a century. Another case resembles Taylor v. Carryl.\ It was a suit in rem, by an assignee of a master and mate, for wages, &c. The libel alleged that the vessel had been attached by a creditor at common law. The court ordered the marshal to take possession and sell; and, after satisfying the claim of the libellant, to pay the residue into the registry, to answer the claim of the attaching creditors. In * It is not known that any of the records of the other Vice-Admiralty courts are in existence. They were probably carried oft’ or destroyed at the time of the Revolution. f § 19 Howard, 162. | 20 Id. 583. Dec. 1870.] Insurance Company v. Dunham. 11 Argument in support of the jurisdiction. Taylor v. Carryl, a divided court held that an attachment at common law could not be so subjected to a maritime lien. If a similar jurisdiction was exercised in the admiralty courts of the other colonies, there would be no doubt as to what the framers of the Constitution had in mind.* There is one case reported in Pennsylvania, Talbot’s Caserf which shows that the Court of Admiralty of that province exercised jurisdiction over all maritime cases. An act of Assembly gave the judge of admiralty cognizance of all suits of maritime jurisdiction not cognizable at common law. Literally construed, this would have limited the jurisdiction to matters of prize. But the Supreme Court held that it could not have been so intended, and that the true construction was, that the jurisdiction embraced all suits of a maritime nature not properly cognizable at common law, and, consequently, all those relating to maritime matters over which the common law had usurped or otherwise obtained jurisdiction; thus extending the jurisdiction to the largest limit ever claimed for it. That the framers of the Constitution, and the lawyers of that day, were familiar with a different and more extensive jurisdiction in the colonies than was practiced in the English Court of Admiralty, is asserted by Wayne, J., in his opinion in Waring v. Clarke, and the authorities cited by him maintain the assertion. It will be found, on examining the records referred to, that no objection was made to the extensive jurisdiction exercised. It seems to have been considered a matter about which there could be no doubt. In one case only was there a plea to the jurisdiction. A master sued in rem, in the home port, for wages and disbursements. Such a plea was interposed and overruled. Thus it appears that the jurisdiction claimed by Story, J., Ware, J., and others, for the admiralty courts of the United States, is not anything new and before unknown, but only that it is not so extensive as that which was actually exercised by the colonial courts. If the jurisdiction, known to have been exercised by the * Opinion of Mr. Justice Wayne, 5 Howard, 454. f 1 Dallas, 95 12 Insurance Company v. Dunham. [Sup. Ct Argument in support of the jurisdiction. admiralty courts before the Revolution, is to be taken as the rule, it must be admitted that every case which can properly be defined as maritime, is a proper subject for the jurisdiction of the United States District Court; and, of course, marine insurance. The same conclusion must be drawn from the fact that admiralty jurisdiction was exercised by the Vice-Admiralty Court of Massachusetts, over all maritime contracts and cases. The judge who presided in that court was at the same time the judge of the Vice-Admiralty Courts of New York, Pennsylvania, the Jerseys, New Hampshire, Connecticut, Maine and Nova Scotia,* and it must have been that he held and exercised the same jurisdiction, when holding court in the other colonies or provinces included in his commission, that he did when sitting in Massachusetts. The argument, to be derived from history, is conclusive in favor of a literal construction of the words of the Constitution and statute giving the courts of the United States jurisdiction over all admiralty and maritime cases. For it appears that the commissions, issued to the judges of the ViceAdmiralty courts, before the Revolution, conferred jurisdiction over all maritime cases without restrictions, sometimes specifying “policies of assurances,” and that this jurisdiction was exercised to its fullest extent, without any regard to the practice of the English Court of Admiralty, in most, if not in all, of the colonies or provinces which afterwards became the United States. It is impossible to suppose that this practice was not known to the statesmen and lawyers who framed the Constitution, or that they contemplated any limit to the jurisdiction which the Court of Admiralty they created might exercise over maritime contracts and cases. It appears from The Federalist, that, in the Convention, no disposition was shown to deny the National judiciary the cognizance of maritime cases ; and it does not appear thait any * Benedict, Admiralty Practice, 88, note, contains a memorandum of a commission to Roger Mompesson, dated April, 1703, appointing him judge of admiralty in these colonies. Maine and Nova Scotia then were parts of the Province of Massachusetts Bay. Dec. 1870.] Insurance Company v. Dunham, 13 Argument in support of the jurisdiction. objection was made to this grant in the State conventions which adopted the Constitution.* Another argument in favor of the exercise of a large jurisdiction over maritime contracts, and contracts of marine insurance especially, is that it tends to promote uniformity of principle and practice throughout the different States in the administration of law. The practical reasons in support of such a jurisdiction generally, are stated by Taney, C. J., in Taylor v. Carryl. Of all maritime contracts, that of insurance is probably the one most extensively in use. It is known and practiced in all civilized countries. It is important that the rules, practice, and laws which relate to it should be the same throughout the world, so far as is possible. That they vary in different places is a source of much confusion and embarrassment, and has been greatly lamented by jurists. This court cannot, of course, influence courts of other countries directly, but it can do much towards establishing uniformity of law and practice in the construction and administration of the law of insurance in this country by exercising jurisdiction over the subject. It can, by so doing, establish rules and principles for the regulation of this contract, which will bind all the other courts of the United States. Now, the contract and the rights and liabilities of the parties to it, are construed differently in almost every State. Probably in no two States are the laws and practices, concerning insurance, the same. In Massachusetts, an insurer may take a vessel into his possession and repair it, without being held to have accepted an abandonment. This court, and some State courts, hold that he cannot. This court holds that if a ship be voluntarily stranded and lost, and the cargo saved thereby, it and its insurers are subject to a contribution for the loss. In Massachusetts, until lately, and in other States, a different rule prevails. This court holds that an insurer is not liable for the damage which the offending vessel in a collision is obliged to pay. The contrary is the rule in the courts of * See Elliot’s Debates. 14 Insurance Company v. Dunham. [Sup. Ct Argument in support of the jurisdiction. Massachusetts. Kumberless illustrations might be adduced to show the want of uniformity and chaotic state of the law and practice of insurance; but it is, unhappily, too notorious. If a suit on a contract of insurance can be maintained in the admiraltv, it must be decided according to the rules and principles of this court, and that would establish absolute uniformity in one court in every State in the Union, and have a strong tendency to establish it in the State courts, because of the great dignity of the court, the respect paid to its decisions, and its controlling influence over all matters over which it exercises jurisdiction. If the admiralty cannot exercise this jurisdiction, it must be left principally to the State courts, and the differences of opinion and practice, so much deplored, will remain and increase. The jurisdiction of the Federal courts, at law and in equity, being generally dependent on the citizenship of the parties, cannot often be invoked; and the decisions of these courts, however highly respected, are not conclusive and binding on the State courts in matters depending on private contracts. If, on the other hand, the jurisdiction of the admiralty over insurance should be established, the great advantage of its process, the celerity of its proceedings, and its other advantages, will cause it to be largely resorted to, and the thirty-seven District Courts, and all the Circuit Courts, being subject to one rule, uniformity of principle and decision will be established through all the States, the advantages of which in a nation of such commerce as this, and where contracts of insurance are made, a thousand or more every day, cannot be overstated. The libellants therefore submit, that to exercise jurisdiction over policies of marine insurance is the established law and practice of the Circuit Court for the first circuit held by justices of this court; that such practice is in conformity with the universal maritime law and usage; with the decisions of this court affirming jurisdiction over charter-parties, and maritime contracts generally; with the jurisdiction exercised by the Vice-Admiralty courts before the Revolution, which must have been known to the makers of the Constitution ; and is imperatively required to carry into effect the Dec. 1870.] Insurance Company v. Dunham. 15 Argument against the jurisdiction. provisions of the Constitution touching the jurisdiction of its courts and the regulation of commerce, and to establish uniformity of principle and practice throughout the Union in one of the most important branches of commercial law. It cannot now be questioned that the framers of the Constitution intended to vest in Congress the power to establish courts to exercise admiralty jurisdiction over all admiralty and maritime cases. Congress* in the exercise of its discretion, might have conferred upon the courts it was to create such jurisdiction as it should see fit, and limit it to certain cases, but nothing of the kind was done. The Judiciary Act confers on the District Courts unqualified jurisdiction over all civil admiralty and maritime cases. If, then, the contract of marine insurance is “maritime” it is a subject over which the District Courts of the United States must exercise jurisdiction. Mr. H, C. Hutchins, contra, against the jurisdiction : A policy of marine insurance is not a maritime contract within the meaning of that clause of the Constitution which delegates to the judicial power of the United States cognizance of “all cases of admiralty and maritime jurisdiction.” 1. Because this clause is to be construed with reference to the restricted jurisdiction of the admiralty a« recognized both in this country and England at the time when the Constitution was adopted. And admiralty has never claimed jurisdiction over insurance ifi England. 2. The decisions of the American courts at the period of the Revolution, and immediately after, conclusively prove the restricted jurisdiction of admiralty as fixed by the Constitution. In L’Arina v. Manwaring,* A. D. 1803, Bee, J., said : “Bills of lading, policies of insurance, and bottomry bonds, where the vessel is not hypothecated according to the marine law, are all suable at common law only. Yet these contracts are ull more or less connected with a voyage.” * Bee, 200. 16 Insurance Company v. Dunham. [Sup. Ct. Argument against the jurisdiction. So in Dean v. Angus,* per Hopkinson, J., as early as 1785, the same is intimated. So in The Two Friends,] per Bee, J. (A. D. 1786), it was held that admiralty extended only to maritime causes, and did not embrace “any transactions or contracts which arise on land.” So again in 1784, it was held in Pennsylvania that admiralty jurisdiction was confined to “ things done upon the seas.”] A shipwright cannot sue in the admiralty.§ Material-men could not sue there either.|| Nor could contracts for necessaries be sued, if furnished before the voyage was begun. Nor ransom bills. Nor charter-parties.^ Nor was there any jurisdiction over cases of hypothecation, where the hypothecation took place before the commencement of the voyage, not even if the ship was hypothecated for necessaries without which the ship could not proceed to sea.** Nor could a master sue for his wages; nor a physician, for his services on a voyage, ff This last case limits the jurisdiction to such claims as are either of themselves, or in their origin, liens on the ship; and this was the rule which Judge Peters said he always observed in determining whether a given case was within the j urisdiction. Certainly such a rule could not apply to policies of insurance ; for they create no lien. The cases cited above are the decisions of Judges Bee, Hopkinson, and Peters, all men of the revolutionary era, who were well acquainted with the limits of the admiralty jurisdiction as understood by the jurists and statesmen who framed the Constitution. They furnish the most trustworthy means for construing the admiralty powers as conferred by the Constitution. 3. No case can be found in the history of the admiralty of this country prior to the case of De Lovio v. Boit, in 1815, thad * Bee, 375, 376. f lb. 435. J Talbot®. The Commanders, 1 Dallas, 98. § Clinton v. The Brig Hannah and Ship General Knox, Bee, 419, per Hopkinson, J. (A. D. 1781). || O’Hara v. Ship Mary, Bee, 100, per Bee, J. (A. D. 1798). V lb. 845, per Hopkinson, J. (A. D. 1785). ** Turnbull v. The Ship Enterprise, Bee, 345, 375 (A. D. 1785). Gardner v. Ship New Jersey, 1 Peters, Admiralty, 228 (A- P-1806), — Dee. 1870.] Insurance Company v. Dunham. 17 Argument against the jurisdiction. affirms the jurisdiction of admiralty over a policy of insurance before or after the Revolution. The only one from which jurisdiction in admiralty over insurance may be even inferred, is Stevens v. Sandwich,* in the District Court of Maryland, which holds that a shipwright may sue in admiralty, making no distinction between home and foreign ports. But this decision may be considered as overruled in People’s Ferry Co. of Boston v. Beers et al.\ It decides nothing with reference to insurance. 4. The extension of admiralty jurisdiction is in abridgmen5. of trial by jury, so carefully guarded by the Constitution The encroachments of the admiralty were among the grievances of our revolutionary fathers.^ Is it reasonable, therefore, to suppose, that, after they had achieved their independence, they would have formed a Constitution which guaranteed the very thing they before complained of? 5. The doctrine of Be Lovio v. Boit has never been affirmed outside the first circuit, but has frequently been questioned in the Supreme Court of the United States, and by some of the judges expressly denied. It should also be remarked that Davis, J., who had a large experience as an admiralty judge, dismissed the libel in the District Court for want of jurisdiction, as appears by the record, although this is not stated in the decision. In Ramsay v. Allegre,§ Johnson, J., in referring to the case, said, that a contrary decision had been made in the sixth circuit, and that they must both fall together, as nisi prius decisions were of no weight in the Supreme Court. In Waring v. Clarke,\\ the question of jurisdiction came up; and Justices Woodbury and Daniel dissented in favor of a limited jurisdiction. In Jackson v. * Gardner v. Ship New Jersey, 1 Peters, Admiralty, 233, note, per Winchester, J. t 20 Howard, 393. » t See address by the Continental Congress, Oct. 21,1774, to the people of Great Britain, drawn by John Jay, afterwards Chief Justice of the United States; also Waring v. Clarke, 5 Howard, 484; Bains v. Schooner dames et al., 1 Baldwin, 544, 550, 551. I 12 Wheaton, 614, 622, 638. V 6 Howard, 461, 467. 2 VOL. XI. 18 Insurance Company v. Dunham. [Sup. Ct Argument against the jurisdiction. Steamboat Magnolia* Campbell, J., says he thinks he speaks the universal opinion of the legal profession in saying that the judgment in De Lovio v. Boit was “ erroneous.” So also in Taylor et al. v. Carry I,\ Taney, C. J., in pronouncing his opinion in regard to admiralty jurisdiction, and referring to a note in 1 Kent, 871, 372, said: “ I think it is stated too broadly, broader than this court has sanctioned; for, as regards the jurisdiction in policies of insurance, 1 believe it has never been asserted in any circuit but the first, and certainly it has never been brought here for adjudication.” And in Cutler v. Rae,% the case is virtually overruled. In Gloucester Insurance Co. n. Younger,§ Curtis, J., refers to the case of Cutler v. Rae, last cited, and says it goes pretty far towards overruling De Lovio v. Boit; and although he adhered to the latter case in deciding the case before him, for special reasons, yet he intimated a doubt whether the doctrine would be sustained in the appellate court. 6. Aside from the authorities, it is submitted, from the reason of the thing, that a policy of insurance is not a maritime contract. It is an agreement to indemnify the owner of the ship, cargo, or freight, against loss by perils of the seas. The suit is an action for damages for breach of the agreement. There is no lien, and the contract is in no sense maritime. It begins and ends on land. A maritime contract is where the thing to be done is itself, and in its essence, maritime. Suppose a policy upon a vessel upon the stocks, or after she is launched, and while waiting for her equipments or for a harbor risk, and the vessel is burnt by negligence or design, would admiralty take jurisdiction ? Here is no voyage, no perils of the sea. The parties are the same, the subjectmatter the same. What is the real distinction between such a policy and the present one ? Is it said that the distinction is in the fact, that, in one case the vessel is water-borne or afloat, and in the other not ? Suppose a policy upon a cargo * 20 Howard, 835. f lb. 615. J 7 lb. 729. g 2 Curtis, 838. Dec. 1870.] Insurance Company v. Dunham. 19 Reply. In support of the jurisdiction. temporarily landed by reason of a disaster to the ship, and, while on shore, is destroyed by fire, or plundered. In such a case, the policy still attaches.* But would admiralty take jurisdiction ? 7. It is not enough that as good a remedy may be afforded in admiralty as at common law. Such a rule would open the door of admiralty to suits of every kind, and end in confusion. So long as a master cannot sue for his wages in admiralty nor part owners, for matters of account between them;| nor a mortgagee, to enforce payment of his mortgage^ nor a shipbuilder, for building a ship ;|| nor material-men who furnish supplies, for a vessel in a home port ;^[ nor any owner, for contribution by way of general average,**— it is not easy to see how, or on what principle, a policy of insurance can be regarded as within the limits of admiralty jurisdiction. It is against law, precedent, and reason. If these libels are dismissed, no harm comes to the plaintiff; for he is only sent to other tribunals of admitted jurisdiction. Reply: The decisions in Bee’s Reports of an early date, to the effect that the admiralty courts have no jurisdiction over matters suable at common law, and a few more found elsewhere, are entitled to no consideration now, and it would be a waste of time to examine them in detail. They are opposed to the decisions of this court. The jurisdiction exercised by the colonial courts of admiralty before the Revolution, was, as has been shown, liberal and comprehensive, and gives no support to the construction for which the respondents contend. If the existence and contents of the records lately found had been earlier known, the courts would have been saved the necessity of considering arguments against the admiralty jurisdiction, based on the practical jurisdiction * Bryan£ v. Com. Ins. Co., 13 Pickering, 543, 558. f 11 Peters, 175. J lb. g 17 Howard, 399. || People's Ferry Co. v. Beers, 20 Id. 393. j Pratt v. Reed, 19 Id. 359, ** Cutler v. Rae, 7 Id. 729. 20 Insurance Company v. Dunham. [Sup. Ct. Reply. In support of the jurisdiction. exercised in England and in the colonies, and much litigation have been prevented. Again, it is urged that the extension of admiralty jurisdiction was one of the grievances which led to the Revolution, and therefore it is not reasonable to suppose that the framers of the Constitution would have perpetuated the very evil of which they complained. But it is matter of history that the extension complained of related exclusively to revenue and criminal cases, that the evil was the taking away of trial by jury in cases where it previously existed. The civil jurisdiction was exercised under the King’s commission, always, without a jury. It never was matter of legislation or of complaint, nor extended by statute. It is said that a cargo insured might be destroyed while ashore; and it is asked if the Admiralty Court would then exercise jurisdiction. The answer is, that undoubtedly it would, if insurance is a maritime contract. The accident of the loss happening on land, does not alter the nature of the contract, if the cargo is covered by the policy. It is said that the doctrine of De Lovio v. Boit is unsound, has not been approved of by the profession generally, and that it has been overruled by this court. It may be admitted that it has been sometimes questioned and sometimes denied by individual justices of this court, but never by the court or a majority of it. It has not been approved of by Daniels, Baldwin, Campbell, or Woodbury, Justices; but it may be said to have had the support of Marshall, Chief Justice, and Washington, Wayne, McLean, Justices, not to mention others now living; and the principles on which it is founded have been repeatedly affirmed in the decisions of this court sustaining jurisdiction over charter-parties, averages, and other maritime cases. It is insisted that the case is virtually overruled by the decision in Cutler v. Rae. But we now know that Cutler v. Rm was not thoroughly considered; that the printed argument in favor of the jurisdiction was not before all of the court, and was not alluded to in conference; that the decision was made by a divided court, Catron, J., not giving an opinion, Dec. 1870.] Insurance Company v. Dunham. 21 Opinion of the court. because he was “ not satisfied either way/’ “ that the remaining eight judges were at first equally divided, and that it was finally disposed of rather from acquiescence in what was thought to be English authority against the jurisdiction, than from a close and searching scrutiny into the practice and jurisdiction of courts of admiralty.”* Mr. Justice BRADLEY delivered the opinion of the court. This case comes before us on a certificate of division in opinion between the judges of the Circuit Court for the District of Massachusetts on appeal from the District Court of that district. When this division of opinion occurred the Circuit Court was being held by the associate justice of this court allotted to the first circuit and the circuit judge of that circuit, sitting together. It becomes necessary, therefore, in the first place, to decide whether a difference of opinion between these judges sitting in the Circuit Court may be certified to this court under the act of April 29, 1802. The language of the act is broad enough to include the case. It is as follows: “ Whenever any question shall occur before a Circuit Court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, at their next session to be held thereafter, and shall by the said court be finally decided.” But it has been suggested that, although the case is included in the terms of the act, it is not within its meaning, because the constitution of the circuit has been changed by the recent act creating circuit judges, passed April 10, 1869. There is nothing in this act which alters the powers of the court, or obviates the difficulty which a certificate of division was intended to meet. That difficulty arose from * See the statement by Wayne, J., in the Appendix to 8 Howard ; also Dike v. The St. Joseph 6 McLean , 573; Taylor v. Carryl, 20 Howard, 583. 22 Insurance Company v. Dunham. [Sup. Ct. Opinion of the court. the fact that the court was constituted of two judges, between whom a difference of opinion would be likely often to occur, and thus block the wheels of justice. Other things being equal, a division of opinion is far more probable between two persons than is an equal division between any other even number of persons. This renders it desirable, when a court consists of the former number, to have some method provided for overcoming the intrinsic difficulty. Such a method was provided by the act of 1802 to meet the then constitution of the court, which consisted of a justice of the Supreme Court and the district judge. The act of 1869 has created a new circuit judge, it is true, but he is invested with precisely the same power and jurisdiction in his circuit as the justice of the Supreme Court has therein, whilst the powers of the latter, as judge of the circuit, are the same as before, and the court is to be held either by one of them or the district judge, or any two of the three. Thus the same necessity exists as before for the power to certify questions to the Supreme Court. As the mischief remains the same, and the terms of the act of 1802 are general and adequate to continue the remedy, such a construction of it as will have that effect seems to be fairly warranted.* We, therefore, conclude that the case is properly brought before us by certificate. The case, as thus brought before us, presents the question, whether the District Court for the District of Massachusetts, sitting in admiralty, has jurisdiction to entertain a libel in personam on a policy of marine insurance to recover for a loss. This precise question has never been decided by this court. But, in our view, several decisions have been made which determine the principle on which the case depends. The general jurisdiction of the District Courts in admiralty and maritime cases has been heretofore so fully discussed that it is only necessary to refer to them very briefly on this occasion. * See Ex parte Zellner, 9 Wallace, 244. Dec. 1870.] Insurance Company v. Dunham. 23 Opinion of the court. The Constitution declares that the judicial power of the United States shall extend “ to all cases of admiralty and maritime jurisdiction,” without defining the limits of that jurisdiction. Congress, by the Judiciary Act passed at its first session, 24th of September, 1789, established the District Courts, and conferred upon them, among other things, “ exclusive original cognizance of all civil cases of admiralty and maritime jurisdiction.” As far as regards civil cases, therefore, the jurisdiction of these courts was thus made coextensive with the constitu-' tional gift of judicial power on this subject. Much controversy has arisen with regard to the extent of this jurisdiction. It is well known that in England great jealousy of the admiralty was long exhibited by the courts of common law. The admiralty courts were originally established in that and other maritime countries of Europe for the protection of commerce and the administration of that venerable law of the sea which reaches back to sources long anterior even to those of the civil law itself; which Lord Mansfield says is not the law of any particular country, but the general law of nations; and which is founded on the broadest principles of equity and justice, deriving, however, much of its completeness and symmetry, as well as its modes of proceeding, from the civil law, and embracing, altogether, a system of regulations embodied and matured hy the combined efforts of the most'enlightened commercial nations of the world. Its system of procedure has been established for ages, and is essentially founded, as we have said, on the civil law; and this is probably one reason why so much hostility was exhibited against the admiralty by the courts of common law, and why its jurisdiction was so much more crippled and restricted in England than in any other state. In all other countries bordering on the Mediterranean or the Atlantic the marine courts, whether under the name of admiralty courts or otherwise, are generally invested with jurisdiction of all matters arising in marine commerce, as well as other marine matters of public concern, such as crimes 24 Insurance Company v. Dunham. [Sup. Ct. - Opinion of the court. committed on the sea, captures, and even naval affairs. But in England, partly under strained constructions of parliamentary enactments and partly from assumptions of public policy, the common law courts succeeded in establishing the general rule that the jurisdiction of the admiralty was confined to the high seas and entirely excluded from transactions arising on waters within the body of a county, such as rivers, inlets, and arms of the sea as far out as the naked eye could discern objects from shore to shore, as well as from transactions arising on the land, though relating to marine affairs. With respect to contracts, this criterion of locality was carried so far that, with the exception of the cases of seamen’s wages and bottomry bonds, no contract was allowed to be prosecuted in the admiralty unless it was made upon the sea, and was to be executed upon the sea ; and even then it must not be under seal. Of course, under such a construction of the admiralty jurisdiction, a policy of insurance executed on land would be excluded from it. But this narrow view has not prevailed here. This court has frequently declared and decided that the admiralty and maritime jurisdiction of the United States is not limited either by the restraining statutes or the judicial prohibitions of England, but is to be interpreted by a more enlarged view of its essential nature and objects, and with reference to analogous jurisdictions in other countries constituting the maritime commercial world, as well as to that of England. “Its boundary,” says Chief Justice Taney,* “ is to be ascertained by a reasonable and just construction of the words used in the Constitution, taken in connection with the whole instrument, and the purposes for which admiralty and maritime jurisdiction was granted to the Federal government. “ Courts of admiralty,” says the same judge in another case,! “ have been found necessary in all commercial coun- * The Steamer St. Lawrence, 1 Black, 527. t The Genesee Chief, 12 Howard, 454. Dec. 1870.] Insurance Company v. Dunham. 25 Opinion of the court. tries, not only for the safety and convenience of commerce, and the speedy decision of controversies where delay would often be ruin, but also to administer the laws of nations in a season of war, and to determine the validity of captures and questions of prize or no prize in a judicial proceeding. And it would be contrary to the first principles on which the Union was formed to confine these rights to the States bordering on the Atlantic, and to the tide-water rivers connected with it, and to deny them to the citizens who border on the lakes and the great navigable streams which flow through the Western States.” In accordance with this more enlarged view of the subject, several results have been arrived at widely differing from the long-established rules of the English courts. First, as to the locus or territory of maritime jurisdiction; that is, the place or territory where the law maritime prevails, where torts must be committed, and where business must be transacted, in order to be maritime in their character; a long train of decisions has settled that it extends not only to the main sea, but to all the navigable waters of the* United States, or bordering on the same, whether landlocked or open, salt or fresh, tide or no tide. “ Are we bound to say,”—says Justice Wayne, delivering the opinion of the court in Waring v. Clarke,*—“ Are we bound to say, because it has been so said by the common law courts of England in reference to the point under discussion, that sea always means high sea or main sea ? ... Is there not a surer foundation for a correct ascertainment of the locality of marine jurisdiction in the general admiralty law than the designation of it by the common law courts? . . . We think, in the controversy between the courts of admiralty and common law upon the subject of jurisdiction, that the former have the best of the argument; that they maintain the jurisdiction for which they contend with more learning, more directness of purpose, and without any of that verbal sub-tilty which is found in the arguments of their adversaries.” * 5 Howard, 462. 26 Insurance Company v. Dunham. [Sup. Ct. Opinion of the court. It was a long time, however, before the full extent of the admiralty jurisdiction was firmly established. The Judiciary Act expressly extended it to seizures, under laws of impost, navigation, or trade of the United States, where made on waters navigable from the sea by vessels of ten or more tons burden as well as upon the high seas, thus at once ignoring the English rule ; but for some time it was held that the jurisdiction could not go ’further, and that this grant was confined to tide-waters. But in the case of fThe Genesee Chief* decided in 1851, it was expressly adjudged that tide was no criterion of admiralty jurisdiction in this country; that it extended to our great internal lakes and navigable rivers as well as to tide-waters. “ It is evident,” says Chief Justice Taney ,f “that a definition which would at this day limit public rivers in this country to tide-water rivers is utterly inadmissible. We have thousands of miles of public navigable water, including lakes and rivers, in which there is no tide. And certainly there can be no reason for admiralty power over a public tide-water which does not apply with equal force to any other public water used for commercial purposes and foreign trade. The lakes and the waters connecting them are undoubtedly public waters, and, we think, are within the grant of admiralty and maritime jurisdiction in the Constitution of the United States.” This judgment has been followed by several cases since decided, and the point must be considered as no longer open for discussion in this court. Secondly, as to contracts, it has been equally well settled that the English rule which concedes jurisdiction, with a few exceptions, only to contracts made upon the sea and to be executed thereon (making locality the test) is entirely inadmissible, and that the true criterion is the nature and subject-matter of the contract, as whether it was a maritime contract, having reference to maritime service or maritime transactions. Even in England the courts felt compelled to rely on this criterion in order to sustain the admiralty juris- * 12 Howard, 443. f Id. 457. Dec. 1870.] Insurance Company v. Dunham. 27 Opinion of the court. diction over bottomry bonds, although it involved an inconsistency with their rules in almost every other case. In Menetone v. Gibbons* Lord Kenyon makes this sensible remark: “If the admiralty has jurisdiction over the subjectmatter, to say that it is necessary for the parties to go upon the sea to execute the instrument, borders upon absurdity.” In that case there happened to be a seal on the bond, of which a strong point was made. Justice Buller answered it thus: “ The form of the bottomry bond does not vary the jurisdiction; the question whether the court of admiralty has or has not jurisdiction depends on the subject-matter’1 Had these views actuated the common law courts at an earlier day it would have led to a much sounder rule as to the limits of admiralty jurisdiction than was adopted. In this court, in the case of The New Jersey Navigation Company v. Merchants’ Bankrf which was a libel in personam against the company on a contract of affreightment to recover for the loss of specie by the burning of the steamer Lexington on Long Island Sound, Justice Nelson, delivering the opinion of the court, says: J “If the cause is a maritime cause, subject to admiralty cognizance, jurisdiction is complete over the person as well as over the ship. . . . On looking into the several cases in admiralty which have come before this court, and in which its jurisdiction was involved, it will be found that the inquiry has been, not into the jurisdiction of the court of admiralty in England, but into the nature and subject-matter of the contract, whether it was a maritime contract, and the service a maritime service, to be performed upon the sea or upon waters within the ebb and flow of the tide.” [The last distinction based on tide, as we have seen, has since been abrogated.] Jurisdiction in that case was sustained by this court, as it had previously been in cases of suits by ship-carpenters and material-men on contracts for repairs, materials, and supplies, and by pilots for pilotage: in none of which would it have been allowed to the admiralty courts in England.§ In the subsequent case of * 8 Term, 269. f 6 Howard, 344. J lb. 892. j See cases cited by Justice Nelson, 6 Howard, 390, 891. 28 Insurance Company v. Dunham. [Sup. Ct Opinion of the court. Morewood v. Bnequist,* decided in 1859, which was a case of charter-party and affreightment, Justice Grier, who had dissented in the case of The Lexington, but who seems to have changed his views on the whole subject, delivered the opinion of the court, and, amongst other things, said: “ Counsel have expended much learning and ingenuity in an attempt to demonstrate that a court of admiralty in this country, like those of England, has no jurisdiction over contracts of charter-party or affreightment. They do not seem to deny that these are maritime contracts, according to any correct definition of the terms, but rather require us to abandon our whole course of decision on this subject and return to the fluctuating decisions of English common law judges, which, it has been truly said, ‘ are founded on no uniform principle, and exhibit illiberal jealousy and narrow prejudice.’ ” He adds that the court did not feel disposed to be again drawn into the discussion; that the subject had been thoroughly investigated in the case of The Lexington, and that they had then decided “ that charter-parties and contracts of affreightment were * maritime contracts,’ within ne true meaning and construction of the Constitution and act of Congress, and cognizable in courts of admiralty by process either in rem or in personam.” The case of The People’s Ferry Co. v. Beers,f being pressed upon the court, in which it had been adjudged that a contract for building a vessel was not within the admiralty jurisdiction, being a contract made on land and to be performed on land, Justice Grier remarked: “ The court decided in that case that a contract to build a ship is not a maritime contractbut he intimated that the opinion in that case must be construed in connection with the precise question before the court; in other words, that the effect of that decision was not to be extended by implication to other cases. In the case of The Moses Taylor,X it was decided that a contract to carry passengers by sea as well as a contract to carry goods, was a maritime contract and cognizable in ad- * 23 Howard, 492 f 20 lb. 401. J 4 Wallace, 411 Dec. 1870.J Insurance Company v. Dunham. 29 Opinion of the court. miralty, although a small part of the transportation was by iand, the principal portion being by water. In a late case of affreightment, that of The Belfast* it was contended that admiralty jurisdiction did not attach, because the goods were to be transported only from one port to another in the same State, and were not the subject of interstate commerce. t But as the transportation was on a navigable river, the court decided in favor of the jurisdiction, because it was a maritime transaction. Justice Clifford, delivering the opinion of the court, says: f “ Contracts, claims, or service, purely maritime, and touching rights and duties appertaining tc commerce and navigation, are cognizable in the admiralty courts. Torts or injuries committed on navigable waters, of a .civil nature, are also cognizable in the admiralty courts. Jurisdiction in the former case depends upon the nature of the contract, but in the latter it depends entirely upon the locality.” It thus appears that in each case the decision of the court and the reasoning on which it was founded have been based upon the fundamental inquiry whether the contract was or was not a maritime contract. If it was, the jurisdiction was asserted; if it was not, the jurisdiction was denied. And whether maritime or not maritime depended, not on the place where the contract was made, but on the subject-matter of the contract. If that was maritime the contract was maritime. This may be regarded as the established doctrine of the court. The subject could be very copiously illustrated by reference to the decisions of the various District and Circuit Courts. But it is unnecessary. The authoritative decisions of this court have settled the general rule, and all that remains to be done is to apply the law to each case as it arises. It only remains, then, to inquire whether the contract of marine insurance, as set forth in the present case, is or is not a maritime contract. * 7 Wallace, 624. f 7 lb. 637. 30 Insurance Company, v. Dunham. [Sup. Ct. Opinion of the court. It is objected that it is not a maritime contract because it is made on the land and is to be performed (by payment of the loss) on the land, and is, therefore, entirely a common law transaction. This objection would equally apply to bottomry and respondentia loans, which are also usually made on the land and are to be paid on the land. But in both cases payment is made to depend on a maritime risk; in the one case upon the loss of the ship or goods, and in the other upon their safe arrival at their destination. So the contract of affreightment is also made on land, and is to be performed on the land by the delivery of the goods and payment of the freight. It is true that in the latter case a maritime service is to be performed in the transportation of the goods. But if we carefully analyze the contract of insurance we shall find that, in effect, it is a contract, or guaranty, on the part of the insurer, that the ship or goods shall pass safely over the sea, and through its storms and its many casualties, to the port of its destination; and if they do not pass safely, but meet with disaster from any of the misadventures insured against, the insurer will pay the loss sustained. So in the contract of affreightment, the master guarantees that the goods shall be safely transported (dangers of the seas excepted) from the port of shipment to the port of delivery, and there delivered. The contract of the one guarantees against loss from the dangers of the sea, the contract of the other against loss from all other dangers. Of course these contracts do not always run precisely parallel to each other, as now stated; special terms are inserted in each at the option of the. parties. But this statement shows the general nature of the two contracts. And how a fair mind can discern any substantial distinction between them on the question whether they are or are not, maritime contracts, is difficult to imagine. The object of the two contracts is, in the one case, maritime service, and in the other maritime casualties. And then the contract of insurance, and the rights of the parties arising therefrom, are affected by and mixed up with all the questions that can arise in maritime commerce,—jet- Dec. 1870.J Insurance Company v. Dunham. 31 Opinion of the court. tison, abandonment, average, salvage, capture, prize, bottomry, &-o. Perhaps the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed. And it is well known that the contract of insurance sprang from the law maritime, and derives all its material rules and incidents therefrom. It was unknown to the common law; and the common law remedies, when applied to it, were so inadequate and clumsy that disputes arising out of the contract were generally left to arbitration, until the year A. D. 1601, when the statute of 43 Elizabeth was passed creating a special court, or commission, for hearing and determining causes arising on policies of insurance. The preamble to that act, after mentioning the great benefit arising to commerce by the use of policies of insurance, has this singular statement: “ And whereas, heretofore such assurers have used to stand so justly and precisely upon their credits as few or no controversies have arisen thereupon, and if any have grown the same have, from time to time, been ended and ordered by certain grave and discreet merchants appointed by the lord mayor of the city of London, as men, by reason of their experience, fittest to understand and speedily to decide those causes, until of late years that divers persons have withdrawn themselves from that arbitrary course, and have sought to draw the parties assured to seek their moneys of every several assurer by suits commenced in her majesty’s courts, to their great charges and delays.” The commission created by this act was to be directed to the judge of the admiralty for the time being, the recorder of London, two doctors of the civil law, and two common lawyers, and eight grave and discreet merchants. The act was thus an acknowledgment of the jurisdiction to which the case properly belonged. Had it not been for the jealousy exhibited by the common law courts against the court of admiralty, in prohibiting its cognizance of policies of insurance half a century before,* the * 4 Institutes, 139. Insurance Company v. Dunham. [Sup. Ct Opinion of the court. latter court, as the natural and proper tribunal for determining all maritime causes, would have furnished a remedy at once easy, expeditious, and adequate. It was only after the common law, under the influence of Lord Mansfield and other judges of enlightened views, had imported into itself the various provisions of the law maritime relating to insurance, that the courts at Westminster Hall began to furnish satisfactory relief to suitors. And even then, as remarked by Sir W. D. Evans, “ the inadequacy of the existing law to settle, proprio vigore, complicated questions of average and contribution, is very manifest and notorious. Such questions are, by consent, as matter of course, and from conviction of counsel that justice cannot be attained in any other way, referred to private examination; but a law can hardly be considered as perfect which is not possessed of adequate powers within itself to complete its purpose, and which requires the extrinsic aid of personal consent.”* The contrivances to which Lord Mansfield resorted to remedy in a measure these difficulties are stated by Mr. Justice Parke in the introduction to his work on insurance. These facts go to show, demonstrably, that the contract of marine insurance is an exotic in the common law. And we know the fact, historically, that its first appearance in any code or system of laws was in the law maritime as promulgated by the various maritime states and cities of Europe. It undoubtedly grew out of the doctrine of contribution and general average, which is found in the maritime laws of the ancient Rhodians. By this law, if either ship, freight, or cargo was sacrificed to save the others, all had to contribute their proportionate share of the loss. This division of loss naturally suggested a provisional division of risk; first, amongst those engaged in the same enterprise; and, next, amongst associations of ship-owners and shipping merchants. Hence it is found that the earliest form of the contract of insurance was that of mutual insurance, which, according to Pardessus, dates back to the tenth century, if not earlier, * Evans’s Statutes, vol. ii, p. 226, 3d ed. Dec. 1870.] Insurance Company v. Dunham. 33 Opinion of the court; and in Italy and Portugal was made obligatory. By a regulation of the latter kingdom, made in the fourteenth century, every ship-owner and merchant in Lisbon and Oporto was bound to contribute two per cent, of the profits of each voyage to a common fund from which to pay losses whenever they should occur.* The next step in the system was that of insurance upon premium. Capitalists, familiar with the risks of navigation, were found willing to guaranty against them for a small consideration or premium paid. This, the final form of the contract, was in use as early as the beginning of the fourteenth century,f and the tradition is, that it was introduced into England in that century by the Lombard merchants who settled in London and brought with them the maritime usages of Venice and other Italian cities. Express regulations respecting the contract, however, do not appear in any code or compilation of laws earlier than the commencement of the fifteenth century. The earliest which Pardessus was able to find were those contained in the Ordinances of Barcelona, A.D. 1435; of Venice, A.D. 1468; of Florence, A. D. 1523; of Antwerp, A. D. 1537, &c.t Distinct traces of earlier regulations are found, but the ordinances themselves are not extant. In the more elaborate monuments of maritime law which appeared in the sixteenth and seventeenth centuries, the contract of insurance occupies a large space. The Guidon de la Mer, which appeared at Rouen at the close of the sixteenth century, was an elaborate treatise on the subject; but, in its discussion, the principles of every other maritime contract were explained. In the celebrated marine ordinance of Louis XIV, issued in 1681, it forms the subject of one of the principal titles.§ As is well known, it has always formed a part of the Scotch maritime law. Suffice it to say, that in every maritime code of Europe, unless England is excepted, marine insurance constitutes one of the principal heads. It is treated in nearly every * 2 Pardessus, Lois Maritimes, 369; 6 Id. 303. t Id. vol. 2, pp. 369, 370; vol. 4, p. 566; vol. 5, pp. 331, 493. t Id. vol. 5, pp. 493, 65; vol. 4, pp. 598, 37, ' $ Lib. 3, title 6. 3 VOL. XI. 34 Insurance Company v. Dunham. [Sup. Ct Opinion of the court. one of those collected by Pardessus, except the more ancient ones, which were compiled before the contract had assumed its place in written law. It is, in fact, a part of the general maritime law of the world; slightly modified, it is true, in each country, according to the circumstances or genius of the people. Can stronger proof be presented that the contract is a maritime contract ? But an additional argument is found in the fact that in all other countries, except England, even in Scotland, suits and controversies arising upon the contract of marine insurance are within the jurisdiction of the admiralty or other marine courts.* The French Ordinance of 1681 touching the Marine, in enumerating the cases subject to the jurisdiction of the judges of admiralty, expressly mentions those arising upon policies of assurance, and concludes with this broad language: “And generally all contracts concerning the commerce of the sea.”j" The Italian writer, Roccus, says: “ These subjects of insurance and disputes relative to ships are to be decided according to maritime law, and the usages and customs of the sea are to be respected. The proceedings are to be according to the forms of maritime courts and the rules and principles laid down in the book called ‘ The Consulate of the Sea/ printed at Barcelona in the year 1592.”t It is also clear that, originally, the English admiralty had jurisdiction of this as well as of other maritime contracts. It is expressly included in the commissions of the Admiral.§ Dr. Browne says: “ The cognizance of policies of insurance was of old claimed by the Court of Admiralty, in which they had the great advantage attending all their proceedings as to the examination of witnesses beyond the seas or speedily going out of the kingdom.”|| But the intolerance of the common law courts prohibited the exercise of it. In the early ease of Crane v. Bell, 38 Hen. VIII, A. D. 1546, a * See Benedict’s Admiralty, § 294, ed. 1870. J Roccus on Insurance, note 80. || 2 Browne’s Civil and Admiralty Law, 82. f Sea Laws, 256. g Benedict, I 48. Dec. 1870.] Insurance Company v. Dunham. 35 Opinion of the court. prohibition was granted for this purpose.* Mr. Browne says, very pertinently: “ What is the rationale, and what the true principle which ought to govern this question, viz.: What contracts should be cognizable in admiralty ? Is it not this? All contracts which relate purely to maritime affairs, the natural, short, and easy method of enforcing which is found in the admiralty proceedings. Another consideration bearing directly on this question is the fact that the commissions in admiralty issued to our colonial governors and admiralty judges, prior to the Revolution, which may be fairly supposed to have been in the minds of the Convention which framed the Constitution, contained either express jurisdiction over policies of insurance or such general jurisdiction over maritime contracts as to embrace them, J The discussions that have taken place in the District and Circuit Courts of the United States b^ve not been adverted to. Many of them are characterized by much learning and research. The learned and exhaustive opinion of Justice Story, in the case of De Lovio v. Doit,§ affirming the admiralty jurisdiction over policies of marine insurance, has never been answered, and will always stand as a monument of his great erudition. That case was decided in 1815. It has been followed in several other cases in the first circuit. || In 1842 Justice Story, in reaffirming his first judgment, says that he had reason to believe that Chief Justice Marshall and Justice Washington were prepared to maintain the jurisdiction. What the opinion of the other judges was he did not know.^ Doubts as to the jurisdiction have occasionally been expressed by other judges. But we are of opinion that the conclusion of Justice Storv was correct. The answer of the court, therefore, to the question propounded by the Circuit Court will be, that the District Court * Seo 4 Institutes, 139. j- 2 Civil and Admiralty Law, 88. f Benedict, chap. ix. $ 2 Gallison, 398. || Gloucester Insurance Co. v. Younger, 2 Curtis, 332-333. ’I Hale «. Washington Insurance Co., 2 Story 183. 36 Parmelee v. Lawrence. [Sup. Ct Statement of the case. for the District of Massachusetts, sitting in admiralty, has jurisdiction to entertain the libel in this case. Answer accordingly. Parmelee v. Lawrence. 1. To authorize the re-examination of a question brought here as within the 25th section of the Judiciary Act, the conflict of the State law with the Constitution of the United States, and a decision by a State court in favor of its validity, must appear on the face of the record. And the question must have been necessarily involved in the decision, so that the State court could not have given a judgment without deciding it. (Railroad Company v. Rock, 4 Wallace, 177, affirmed.) Accordingly, where no question of such conflict was made in the pleadings, nor in the evidence, nor at the hearing in the court where the suit was brought; and the question was first made in the Supreme Court where the certificate of the presiding judge showed only that it was taken in argument and overruled, the writ was dismissed. 2. The office of the certificate from the Supreme Court, as it respects the Federal question, is to make more certain and specific what is too general and indefinite in the record, but it is incompetent to originate the question within the true construction of the 25th section. On motion to dismiss a writ of error to the Supreme Court of Illinois, brought here on the assumption that the case was shown to be within the 25th section of the Judiciary Act; the idea of the plaintiff in error having been that a statute of the State of Illinois, on the subject of interest, was brought in question in this suit, and was upheld by the court below, though repugnant to the Constitution of the United States, as impairing the obligation of contracts. It appeared by the record that Parmelee & Co. filed their bill in chancery, in the Superior Court of Chicago, against one Lawrence, in which they sought to enforce the specific performance of what they alleged to be a contract, by Lawrence, to convey to them certain lots in Chicago for the consideration of $50,000, and interest at 10 per cent., free and clear of incumbrance. The bill set forth that they were Dec. 1870.] Parmelee v. Lawrence. 37 Statement of the case. ready to pay on receiving such a conveyance, but that Lawrence was unable to make title to the land; that he had demanded the money, and was threatening to eject them. Lawrence in his answer set up that the transaction was not, as represented in the bill, a naked agreement to convey, but was a mortgage to secure the loan of $50,000, and he tendered a reconveyance on payment of the principal and interest. He also filed his cross-bill for a foreclosure of the mortgage in the usual form. The complainants, in answer to this cross-bill, asserted as before, that the agreement had been simply an agreement to sell; but further insisted that, if the agreement was a mortgage, then the loan was usurious, and that Lawrence thereby forfeited, under the laws of Illinois, threefold the whole interest so received. They also set up, that the rate of interest was 12 per cent., and that they had given Lawrence their bond for the 2 per cent, interest, above the ten as already mentioned. The cause was finally heard on the cross-bill, answer, replication, and proofs in the case. The Superior Court decreed that the plaintiffs should pay to the defendant the amount of the loan remaining due, with 6 per cent, interest from date of the last payment, but he to retain the 12 per cent, already paid. The defendant appealed to the Supreme Court, which reversed this decree, holding that the usurious interest already paid should be credited on the principal, and that interest should be allowed at the rate of 10 per cent. The cause was remanded to the Superior Court for a new trial, where a decree was rendered in conformity with the above opinion, and this was afterwards affirmed by the Supreme Court. ‘ The record showed that the litigation resulted in a question as to the rate of interest to be allowed to Lawrence, the lender, according to the laws of Illinois, and that neither in the pleadings, nor in the evidence, nor at the hearing in the Superior Court, was any question made as to the validity of any statute of the State on the ground of its repugnancy to the Constitution of the United States. This question was 38 Parmelee t. Lawrence. [Sup. Ct Opinion of the court. first made before the Supreme Court on the appeal. The certificate of the presiding judge showed that the objection was taken in the argument there and overruled, and this furnished the only evidence that any Federal question was raised in the case. Messrs. G. Payson and C. A. Gregory, in support of the motion, argued that the certificate alone was not sufficient to show the existence of any Federal question, citing the Pailroad Company v. Pock.* Mr. Beckwith, contra. Mr. Justice NELSON delivered the opinion of the court. In Lawler et al. v. Walker et al.,-\ it is said that the 25th section of the Judiciary Act required something more definite than the certificate of the Supreme Court to give this court jurisdiction. The conflict of the State law with the Constitution of the United States, and a decision by a State court in favor of its validity, must appear on the face of the record before it can be re-examined in this court. It must appear in the pleadings of the suit, or from the evidence in the course of the trial, in the instructions asked for, or from exceptions taken to the rulings of the court. It must be that such a question was necessarily involved in the decision, and that the State court would not have given a judgment without deciding it. The decision in this case was approved, and applied in Pailroad Company v. Pock. The certificate was as full in that case as in the present, but it was the only evidence of the fact that a Federal question had been presented. The judge, in delivering the opinion of the court in that case, observed that “ it is probable that counsel in the argument of the case in the Supreme Court of Iowa, insisted that these matters were involved, and that the chief justice felt bound tc certify, when requested, that they were drawn * 4 Wallace, 177. f 14 Howard, 152. Dec. 1870.] Virginia v. West Virginia. 39 Syllabus. in question. But if the record,” he proceeds, “ does not show that they were necessarily drawn in question, this court cannot take jurisdiction to reverse the decision of the highest court of a State upon the ground that counsel brought them in question in argument.” We will add, if this court should entertain jurisdiction upon a certificate alone in the absence of any evidence of the question in the record, then the Supreme Court of the State can give the jurisdiction in every case where the question is made by counsel in the argument. The office of the certificate, as it respects the Federal question, is to make more certain and specific what is too general and indefinite in the record, but is incompetent to originate the question within the true construction of the 25th section. Motion to dismiss granted. Virginia v. West Virginia. 1. This court has original jurisdiction, under the Constitution, of contro- versies between States of the Union concerning their boundaries. 2. This jurisdiction is not defeated because in deciding the question of boundary it is necessary to consider and construe contracts and agree* ments between the States, nor because the judgment or decree of the court may affect the territorial limits of the jurisdiction of the States that are parties to the suit. 8. The ordinance of the organic convention of the Commonwealth of Virginia, under which the State of West Virginia was organized, and the act of May 13th, 1862, of the said Commonwealth, constitute a proposition of the former State that the counties of Jefferson and Berkeley and others might, on certain conditions, become part of the new State; and the provisions of the constitution of the new State concerning those counties are an acceptance of that proposition. 4. The act of Congress admitting the State of West Virginia into the Union at the request of the Commonwealth of Virginia, with the provisions for the transfer of those counties in the constitution of the new State, and in the acts of the Virginia legislature, is an implied consent to the agreement of those States on that subject. 6. The consent required by the Constitution to make valid agreements between the States need not necessarily be by an express assent to every proposition of the agreement. In the present case the assent is an irresistible inference from the legislation of Congress on the subject. 40 Virginia v. West Virginia* [Sup. Ct. Statement of the case. 6. The condition of the agreement on which the transfer of these two coun ties was to be made was, that a majority of the votes cast on that ques- ( tion in the counties should be found in favor of the proposition. 7. The statutes of the Virginia legislature having authorized the governor of that State to certify the result of the voting on that proposition to the State of West Virginia, if, in his opinion, the vote was favorable, and he having certified the fact that it was so, under the seal of the State to the governor of West Virginia, and the latter State having accepted and exercised jurisdiction over those counties for several years, the State of Virginia is bound by her acts in the premises. 8. The State of Virginia cannot under such circumstances be permitted to set aside the whole transaction in a court of equity, on the ground that no fair vote was taken, that her own governor was deceived and misled by the election officers, with no charge of fraud or improper conduct on the part of West Virginia, nor can she withdraw her consent two years after the vote was taken and the transfer of the counties accomplished. On original bill to settle the boundary line between the States of Virginia and West Virginia, the case as existing in well-known public history and from the record being thus: A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called “ ordinance of secession” to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles —“ the Pierpont government”—and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia— passed August 20th, 1861, an ordinance by which they ordained that a new State be formed and erected out of the territory included within certain boundaries (set forth) including within those boundaries of the proposed new State Dec. 1870.] Virginia v. West Virginia. 41 Statement of the case. the counties of, &c. [thirty-nine counties being named]. These counties did not include as within the proposed State the counties of either Greenbrier, Pocahontas, Hampshire, Hardy, Morgan, Berkeley, or Jefferson; but the third section of the ordinance enacted that the convention might change the boundaries described in the first section of the ordinance so as to include within the proposed State the counties of Greenbrier and Pocahontas, or either of them, and also the other counties just above named, or either of them, “ and also all such other counties as lie contiguous to the said boundaries or to the counties named,” if the said counties to be added, or either of them, by a majority of the votes given, &c., should declare their wish to form part of the proposed State, and should elect delegates to the said convention, &c. The name of the new State as ordained by the ordinance was Kanawha. The convention provided for by the ordinance met in Wheeling, November 26th, 1861, and made a “Constitution of West Virginia.” Certain counties named, forty-four in number, “ formerly part of the State of Virginia,” it was ordained should be “included in and form part of the State of West Virginia.” No one of the counties of Pendleton, Hardy, Hampshire, Morgan, Berkeley, or Jefferson, were among these forty-four. The constitution proceeded, in a second section: “ And if a majority of the votes cast at the election or elections held as provided in the schedule hereof, in the district composed of the counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this constitution, the said four counties shall be included in and form part of the State of West Virginia; and if the same shall be so included, and a majority of the votes cast at the said election or elections, in the district composed of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia.” All through the constitution, as, ex. gr., in the fixing of 42 Virginia v. West’Virginia. [Sup. Ct Statement of the case. senatorial and representative districts, and of judicial circuits, provision was made for the case of these two sets of counties coming in, or of one set coming in without the other. A separate section ordained that— “ Additional territory may be admitted into, and become part of this State, with the consent of the legislature.” And it provided for the representation in the Senate and House of Delegates of such new territory. By the terms of this constitution it was to be submitted to a vote of the people on the first Thursday in April, 1862; and on a vote then taken it was ratified by the people of the forty-four counties first named, and by those of Pendleton, Hardy, Hampshire, and Morgan. But no one of the counties of Berkeley, Jefferson, or Frederick, apparently, voted on the matter; owing, as was said by the defendant’s counsel at the bar, to the fact, “that, from the 1st of June, 1861, to the 1st of March, 1862, during which time these proceedings for the formation of a new State were held, those counties were in the possession, and under the absolute control, of the forces of the Confederate States; and that an attempt to hold meetings in them to promote the formation of the new State would have been followed by immediate arrest and imprisonment.” All this being done, the legislature of Virginia, as reorganized, passed, on the 13th May, 1862, an act, in title and body, thus: An Act giving the consent of the Legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State. § 1. Be it enacted by the General Assembly, That the consent of the legislature of Virginia be, and the same is hereby given to the formation and erection of the State of West Virginia, within the jurisdiction of this State, to include the counties of Hancock, &c. [forty-eight counties being named (being the forty-four first mentioned, with Pendleton, Hardy, Hampshire, and Morgan), but the counties of Berkeley, Jefferson, or Frederick, not being included], according to the boundaries and under the provisions set Dec. 1870.] Virginia v. West Virginia. 43 Statement of the case. forth in the constitution for the said State of West Virginia and the schedule thereto annexed, proposed by the convention which assembled at Wheeling on the 26th day of November, 1861. § 2. That the consent of the legislature of Virginia be, and the same is hereby given, that the counties of Berkeley, Jefferson, and Frederick, shall be included in and form part of the State of West Virginia whenever the voters of said counties shall ratify and assent to the said constitution, at an election held for the purpose, at such time and under such regulations as the commissioners named in the said schedule may prescribe. § 3. That this act shall be transmitted by the Executive to the senators and representatives of this Commonwealth in Congress, together with a certified original of the said constitution and schedule, and the said senators and representatives are hereby requested to use their endeavors to obtain the consent of Congress to the admission of the State of West Virginia into the Union. § 4. This act shall be in force from and after its passage. Under this act, no elections apparently were held; and on the 31st December, 1862,* Congress passed An Act for the admission of the State of “West Virginia” into the Union, and for other purposes. Whereas, The people inhabiting that portion of Virginia known as West Virginia, did by a convention assembled in the city of Wheeling, on the 26th November, 1861, frame for themselves a constitution with a view of becoming a separate and independent State; and whereas, at a general election held in the counties composing the territory aforesaid, on the 3d of May last, the said constitution was approved and adopted by the qualified voters of the proposed State; and whereas, the legislature of Virginia, by an act passed on the 13th day of May, 1862, did give its consent to the formation of a new State within the jurisdiction of the said State of Virginia, to be known by the name of West Virginia, and to embrace the following named counties, o wit [the forty-eight counties mentioned in the above-quoted irginia act of May 13, 1862, were here set forth by name, and not including Berkeley or Jefferson]; and whereas, both the con- * 12 Stat, at Large, 633. 44 Virginia v. West Virginia.’ [Sup. Ct. Statement of the case. vention and the legislature aforesaid have requested that the new State should be admitted into the Union, and the constitu. tion aforesaid being republican in form, Congress doth hereby consent that the said forty-eight counties may be formed into a separate and independent State ; therefore, Be it enacted, &c., That the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States, in all respects whatsoever, &c. The act contained a proviso that it should not take effect until after the proclamation of the President of the United States, hereinafter provided for. It then proceeded to recite that it was represented to Congress that since the convention of 26th November, 1861, which framed and proposed the constitution for the said State of West Virginia, the people thereof had expressed a wish to change the 7th section of the 11th article of said constitution, by striking out the same, and inserting the following in its place. The article [on the subject of slavery] was then set forth. It was therefore further enacted that whenever the people of West Virginia should, through their said convention, and by a vote to be taken, &c., make and ratify the change aforesaid, and properly certify the same under the hand of the president of the convention, it should be lawful for the President of the United States to issue his proclamation stating the fact, and that thereupon this act should take effect, and be in force from and after sixty days from the date of the proclamation. This proclamation President Lincoln did issue on the 20th April, 1863,* reciting the act, with, however, a condition annexed ; reciting that proof of compliance with the condition, as required by the second section of the act, had been submitted to him, and in pursuance of the act declaring and proclaiming that the act should take effect, and be in force from and after sixty days from his proclamation. Next in the history came certain acts of the State of Vir« *13 Stat, at Large, 731. Dec. 1870.] Virginia v. West Virginia. 45 Statement of the case. ginia; among them one passed January 31,1863, and which, with its title, ran thus: An Act giving the consent of the State of Virginia to the County of Berkeley being admitted into, and becoming part of, the State of West Virginia. Whereas, By the constitution for the State of West Virginia, ratified by the people thereof, it is provided that additional territory may be admitted into and become part of said State, with the consent of the legislature thereof, and it is represented to the General Assembly that the people of the county of Berkeley are desirous that said county should be admitted into and become part of the said State of West Virginia: Now, therefore, 1. Be it enacted by the General Assembly, That polls shall be opened and held on the fourth Thursday of May next, at the several places for holding elections in the county of Berkeley, for the purpose of taking the sense of the qualified voters of said county on the question of including said county in the State of West Virginia. 2. The poll-books shall be headed as follows, viz.: “ Shall the county of Berkeley become a part of the State of West Virginia T’ and shall contain two columns, one headed “Aye,” and the other “No,” and the names of those who vote in favor of said county becoming a part of the State of West Virginia shall be entered in the first column, and the names of those who vote against it shall be entered in the second column. 3. The said polls shall be superintended and conducted according to the laws regulating general elections, and the commissioners superintending the same at the court-house of the said county shall, within six days from the commencement of the said vote, examine and compare the several polls taken in tho county, strike therefrom any votes which are by law directed to be stricken from the same, and attach to the polls a list of the votes stricken therefrom, and the reasons for so doing. The result of the polls shall then be ascertained, declared, and certified as follows: The said commissioners shall make out two returns in the following form, or to the following effect: “We, commissioners for taking the vote of the qualified voters of Berkeley County on the question of including the said county in the State of West Virginia, do hereby certify that polls for that purpose were opened and .held the fourth Thursday of May, in the year 1863, within said county, pur- 46 Virginia v. West Virginia. [Sup. Ct Statement of the case. suant to law, and that the following is a true statement of the result as ex« hihited by the poll-books, viz.: for the county of Berkeley becoming part of the State of West Virginia, votes; and against it votes. Given under our hands this day of , 1863;” which returns, written in words, not in figures, shall be signed by the commissioners; one of the said returns shall be filed in the clerk’s office of the said county, and the other shall be sent, under the seal of the secretary of this commonwealth, within ten days from the commencement of the said vote, and the governor of this State, if of opinion that the said vote has been opened and held, and the result ascertained and certified pursuant to law, shall certify the result of the same under the seal of this State, to the governor of the said State of West Virginia. 4. If the governor of this State shall be of opinion that the said polls cannot be safely and properly opened and held in the said county of Berkeley, on the fourth Thursday of May next, he may by proclamation postpone the same, and appoint in the same proclamation, or by one to be hereafter issued, another day for opening and holding the same. 5. If a majority of the votes given at the polls opened and held pursuant to this act be in favor of the said county of Berkeley becoming part of the State of West Virginia, then shall the said county become part of the State of West Virginia when admitted into the same with the consent of the legislature thereof. 6. This act shall be in force from its passage. Then followed, four days later, on the 4th of February of the same year, 1863, an act relating to the admission of several other counties, including Jefferson, thus: An Act giving consent to the admission of certain counties into the new State of West Virginia upon certain conditions. 1. Be it enacted by the General Assembly of Virginia, That at the general election on the fourth Thursday of May, 1863, it shall be lawful for the voters of the district composed of the counties of Tazewell, Bland, Giles, and Craig to declare, by their votes, whether said counties shall be annexed to, and become a part of, the new State of West Virginia; also, at the same time, the district composed of the counties of Buchanan, Wise, Bussell, Scott, and Lee, to declare, by theii* votes, whether the counties Dec. 1870.] Virginia v. West Virginia. 47 Statement of the case. of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Alleghany, Bath, and Highland, to declare, by their votes, whether the counties of such last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Frederick and Jefferson, or either of them, to declare by their votes whether the counties of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Clarke, Loudoun, Fairfax, Alexandria, and Prince William, to declare, by their votes, whether the counties of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Shenandoah, Warren, Page, and Rockingham, to declare, by their votes, whether the counties of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; and for that purpose there shall be a poll opened at each place of voting in each of said districts, headed “ For annexation,” and “ Against annexation.” And the consent of this General Assembly is hereby given for the annexation to the said State of West Virginia of such of said districts, or of either of them, as a majority of the votes so polled in each district may determine; provided that the legislature of the State of West Virginia shall also consent and agree to the said annexation, after which all jurisdiction of the State of Virginia over the districts so annexed shall cease. 2. It shall be the duty of the governor of the Commonwealth to ascertain and certify the result as other elections are certified. 3. In the event the state of the country will not permit, or from any cause, said election for annexation cannot be fairly held on the day aforesaid, it shall be the duty of the governor of this Commonwealth, as soon as such election can be safely and fairly held, and a full and free expression of the opinion of the people had thereon, to issue his proclamation ordering such election for the purpose aforesaid, and certify the result as aforesaid. 4. This act shall be in force from its*passage. Under these two acts elections of some sort were held 48 Virginia v. West Virginia. [Sup. Ct Statement of the case. and the governor certified the same to the State of West Virginia, and that State thereupon extended her jurisdiction over the counties of Berkeley and Jefferson, and still maintained it. Next came an act of the State of Virginia, passed December 5th, 1865 : An Act to repeal the second section of an act passed on the 13th day of May, 1862, entitled An act giving the consent of the legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State; also, repealing the act passed on the 81st day of January, 1863, entitled An act giving the consent of the State of Virginia to the county Berkeley being admitted into, and becoming part of, the State of West Virginia ; also, repealing the act passed on the 4th day of February, 1863, entitled An act giving consent to the admission of certain counties into-the new State of West Virginia, upon certain conditions, and withdrawing consent to the transfer of jurisdiction over the several counties in each of said acts mentioned. Whereas, It sufficiently appears that the conditions prescribed in the several acts of the General Assembly of the restored gov ernment of Virginia, intended to give consent to the transfer, from this State to the State of West Virginia, of jurisdiction over the counties of Jefferson and Berkeley, and the several other counties mentioned in the act of February 4th, 1863, hereinafter recited, have not been complied with; and the consent of Congress, as required by the Constitution of the United States, not having been obtained in order to give effect to such transfer, so that the proceedings heretofore had on this subject are simply inchoate, and said consent may properly be withdrawn ; and this General Assembly, regarding the contemplated disintegration of the Commonwealth, even if within its constitutional competency, as liable to many objections of the gravest character, not only in respect to the counties of Jefferson and Berkeley, over which the State of West Virginia has prematurely attempted to exercise jurisdiction, but also as to the several other counties above referred to : 1. Be it therefore enacted by the General Assembly of Virginia, That the second section of the act passed on the 13th day of May, 1862, entitled An apt giving the consent of the legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State be, and the. same is hereby, repealed, Dec. 1870.] Virginia v. West Virginia. 49 Statement of the case. 2. That the act passed on the 31st day of January, 1863, entitled An act giving the consent of the State of Virginia to the county of Berkeley being admitted into and becoming part of the State of West Virginia, be, and the same is, in like manner, hereby repealed. 3. That the act passed February 4th, 1863, entitled An act giving consent to the admission of certain counties into the new State of West Virginia upon certain conditions, be, and the same is, in like manner, hereby repealed. 4. That all consent in any manner heretofore given, or in tended to be given, by the General Assembly of Virginia to thia transfer, from its jurisdiction to the jurisdiction of the State of West Virginia, of any of the counties mentioned in either of the above-recited acts, be, and the same is hereby, withdrawn; and all acts, ordinances, and resolutions heretofore passed purporting to give such consent are hereby repealed. 5. This act shall be in force ■ from and after the passage thereof. On the 10th of March, 1866,* Congress passed a Joint Resolution giving the consent of Congress to the transfer of the Counties of Berkeley and Jefferson to the State of West Virginia. Be it resolved, &c., That Congress hereby recognizes the transfer of the counties of Berkeley and Jefferson from the State of Virginia to West Virginia and consents thereto. In this state of things, the Commonwealth of Virginia brought her bill in equity against the State of West Virginia in this court on the ground of its original jurisdiction of controversies between States under the Constitution, in which it was alleged that such a controversy had arisen between those States in regard to their boundary, and especially as to the question whether the counties of Berkeley and Jefferson had become part of the State of West Virginia or were part of and within the jurisdiction of the Commonwealth of Virginia; and the prayer of the bill was that it might be established by the decree of this court that those * 14 Stat, at Large, 350. 4 VOL. XI. 50 Virginia v. West Virginia. [Sup. Ct. Statement of the case. counties were part of the Commonwealth of Virginia, and that the boundary line between the two States should be ascertained, established, and made certain, so as to include the counties mentioned as part of the territory and within the jurisdiction of the State of Virginia. The stating part of the bill was largely composed of the substance of four acts of the General Assembly of the Commonwealth, already presented at large, in the statement, copies of them being made exhibits and filed with the bill. The bill, in addition to the substance of these statutes, alleged that no action whatever was had or taken under the second section of the act of 1862,* but that afterwards the State of West Virginia was admitted into the Union, under an act of Congress and proclamation of the President, without including either the counties of Berkeley, Jefferson, or Frederick. It further alleged that an attempt was made to take the vote in the counties of Jefferson and Berkeley at the time mentioned in the acts of January 31st, and February 4th, 1863,f but that, owing to the state of the country at that time, no fair vote could be taken; that no polls were opened at any considerable number of the voting places; that the vote taken was not a fair and full expression ; all of which was well known to the persons who procured the certificate of such election. It also alleged that it having been falsely and fraudulently suggested, and falsely and untruly made to appear to the governor of the Commonwealth, that a large majority of the votes wTas given in favor of annexation, he certified the same to the State of West Virginia, and that thereupon, without the consent of Congress, that State extended her jurisdiction over the said counties of Berkeley and Jefferson, and over the inhabitants thereof, and still maintained the same. The State of Virginia, of course, in coming before this court with this case, relied upon that clause of the Federal Constitution which ordains that“ no State shall, without the assent of Congress, enter into any agreement or compact with * Supra, p. 43, f Supra, pp. 45, 47. Dee. 1870.] Virginia v. West Virginia. 51 Argument for Virginia. any other State,” and that one also which ordains that “ the judicial power shall extend . . . to controversies between two or more States.” To the bill thus filed the State of West Virginia appeared and put in a general demurrer. It was not denied that West Virginia had from the beginning continued her assent to receive these two counties. The case was elaborately argued at December Term, 1866, by Messrs. B. R. Curtis and A. Hunter, in support of the bill, and by Messrs. B. Stanton and Reverdy Johnson, in support of the demurrer; and again at this term by Mr. Taylor, Attorney -General of Virginia, Messrs. B. R. Curtis, and A. Hunter, on the former side, and Messrs. B. Stanton, C. J. Faulkner, and Reverdy Johnson, contra. In support of the bill it was argued, among other things, that a State was incapable under the Constitution of making any contract with another State; that States might negotiate with each other, might express a mutual willingness to do the same thing, but that this was all; that Congress by the act of 1862, assenting to the admission of a State composed of but forty-eight counties, had not given its assent to a State having in it the counties of Berkeley and Jefferson; that Congress had never assented to the admission of those counties until its joint resolution of 1866; that previous to that time Virginia had withdrawn, as she had a right to do, her once offered assent to what Congress could alone complete ; that the transfer could exist only by the concurrent assent of all these parties; that therefore no transfer had been made by the joint resolution. Even if this were not so, and if fair elections under the acts of 1863 would be sufficient, the allegations of the bill as to the character of the elections relied on—allegations of partial and fraudulent elections—which allegations on a demurrer were to be taken as true—concluded the matter; for if no elections had ever taken place, then even the condition upon which as between the two States the counties were to pass to West Virginia, had never taken effect, 52 Virginia v. West Virginia. [Sup. Ct. Argument for West Virginia. In support of the demurrer the principal points were, that although this court had jurisdiction over '•controversies between two States,” it was only over controversies in which some question in its nature judicial was involved. This court could not settle a controversy of arms, or force, such as came near arising between Ohio and Michigan, on the matter of their boundary; nor would it settle a political one. Georgia v. Stanton* decided that. Kow, the main question here involved was the political jurisdiction over two counties, and their inhabitants. There was no land that Virginia claims as her individual land. The question then was a political question; one for Congress. Of the disputed questions of boundary which had arisen in this country, Congress had settled most.t In the few cases, where this court had acted, including the case of Rhode Island v. Massachusetts where there was an old colonial agreement of 1710, there had always been some proper subject of judicial action involved ; a question of the specific performance of contract, a question of property, or the like. Even in the great English case of Penn v. Lord Baltimore, A. D. 1750,§ before Lord Hardwicke, to settle the lines between Delaware and Maryland, there was an agreement for settling the boundary; a proper head of equitable jurisdiction. The dicta and much of the argument of Baldwin, J., who gave the opinion in the Rhode Island case, were unnecessary to the judgment. Other cases have followed that. In reply to the other side it was contended that the boundary, as contemplated both by the State of Virginia and the proposed State, was not confined to the limits specifically stated, but was capable of being opened, to the extent provided for, by the two bodies; that this capacity was inherent in the State as constituted; that Congress in 1862 received the State with this capacity; that the right of voting was subsequently exercised by the two counties under the Virginia acts of 1863; that the condition thus became executed, and the two counties transferred to the State of West Vir * 6 Wallace, 50. t 8 Stat, at Large, 751, title, Boundary, in Index. J 12 Peters, 724. g 1 Vesey, 444. Dec. 1870.] Virginia v. West Virginia. 53 Opinion of the court. ginia; that the court could not go behind the official returns of the vote; and, finally, that the purpose of one of the clauses of the Constitution, relied on in the argument of the other side, was not to prevent the States from settling their own boundaries so far as merely affected their relations to each other, but to guard against the derangement of their Federal relations with the other States of the Union, and the Federal government, which might be injuriously affected if the contracting parties might act upon their boundaries at pleasure; and that in this case the boundary having been settled by themselves, between Virginia and the new body to which she was in 1862 assisting to give existence, Virginia could not subsequently revoke her assent against the wish of the other party. Mr. Justice MILLER delivered the opinion of the court. The first proposition on which counsel insist, in support of the demurrer is, that this court has no jurisdiction of the case, because it involves the consideration of questions purely political; that is to say, that the main question to be decided is the conflicting claims of the two States to the exercise of political jurisdiction and sovereignty over the territory and inhabitants of the two counties which are the subject of dispute. This proposition cannot be sustained without reversing ffie settled course of decision in this court and overturning the principles on which several well-considered cases have been decided. Without entering into the argument by which those decisions are supported, we shall content ourselves with showing what is the established doctrine of the court. In the case ‘ofRhode Island v. Massachusetts* this question was raised, and Chief Justice Taney dissented from the judgment of the court by which the jurisdiction was affirmed, on the precise ground taken here. The subject is elaborately discussed in the opinion of the court, delivered * 12 Peters, 724. 54 Virginia v. West Virginia. [Sup. Ct. Opinion of the court. by Mr. Justice Baldwin, and the jurisdiction, we think, satisfactorily sustained. That case, in all important features, was like this. It involved a question of boundary and of the jurisdiction of the States over the territory and people of the disputed region. The bill of Rhode Island denied that she had ever consented to a line run by certain commissioners. The plea of Massachusetts averred that she had consented. A question of fraudulent representation in obtaining certain action of the State of Rhode Island was aiso made in the pleadings. It is said in that opinion that, “title, jurisdiction, sovereignty, are (therefore) dependent questions, necessarily settled when boundary is ascertained, which being the line of territory, is the line of power over it, so that great as questions of jurisdiction and sovereignty may be, they depend on facts.” And it is held that as the court has jurisdiction of the question of boundary, the fact that its decision on that subject settles the territorial limits of the jurisdiction of the States, does not defeat the jurisdiction of the court. The next reported case, is that of Missouri v. Iowa,* in which the complaint is, that the State of Missouri is unjustly ousted of her jurisdiction, and obstructed from governing a part of her territory on her northern boundary, about ten miles wide, by the State of Iowa, which exercises such jurisdiction, contrary to the rights of the State of Missouri, and in defiance of her authority. Although the jurisdictional question is thus broadly stated, no objection on this point was raised, and the opinion which settled the line in dispute, delivered by Judge Oatron, declares that it was the unanimous opinion of all the judges of the court. The Chief Justice must, therefore, have abandoned his dissenting doctrine in the previous case. That this is so is made still more clear by the opinion of the court delivered by himself in the case of Florida v. Georgia^ in which he says that “ it is settled, by repeated decisions, that a question of boundary between States, is * 7 Howard, 660. f 17 Id. 478. Dec. 1870.] Virginia v. West Virginia. 55 Opinion of the court. within the jurisdiction conferred by the Constitution on this court.” A subsequent expression in that opinion shows that he understood this as including the political question, for he says “ that a question of boundary between States is necessarily a political question to be settled by compact made by the political departments of the government. . . . But under our form of government a boundary between two States may become a judicial question to be decided by this court.” In the subsequent case of Alabama v. Georgia,* all the judges concurred, and no question of the jurisdiction was raised. We consider, therefore, the established doctrine of this court to be, that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated, because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render, afiects the territorial limits of the political jurisdiction and sovereignty of the States which are parties to the proceeding. In the further consideration of the question raised by the demurrer we shall proceed upon the ground, which we shall not stop to defend, that the right of West Virginia to jurisdiction over the counties in question, can only be maintained by a valid agreement between the two States on that subject, and that to the validity of such an agreement, the consent of Congress is essential. And we do not deem it necessary in this discussion to inquire whether such an agreement may possess a certain binding force between the States that are parties to it, for any purpose, before such consent is obtained. As there seems to be no question, then, that the State of West Virginia, from the time she first proposed, in the constitution under which she became a State, to receive these * 28 Howard, 505. 56 Virginia v. West Virginia. [Sup. Ct. Opinion of the court. counties, has ever since adhered to, and continued her assent to that proposition, three questions remain to be considered. 1. Did the State of Virginia ever give a consent to this proposition which became obligatory on her? 2. Did the Congress give such consent as rendered the agreement valid ? 3. If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State. To determine these questions it will be necessary to examine into the history of the creation of the State of West Virginia, so far as this is to be learned from legislation, of which we can take judicial notice. The first step in this matter was taken by the organic convention of the State of Virginia, which in 1861 reorganized that State, and formed for it what was known as the Pierpont government—an organization which was recognized by the President and by Congress as. the State of Virginia, and which passed the four statutes set forth as exhibits in the bill of complainant. This convention passed an ordinance, August 30,1861, calling a convention of delegates from certain designated counties of the State of Virginia to form a constitution for a new State to be called Kanawha. The third section of that ordinance provides that the convention when assembled may change the boundaries of the new State as described in the first section, so as to include the “ counties of Greenbrier and Pocahontas, or either of them, and also the counties of Hampshire, Hardy, Morgan, Berkeley, and Jefferson, or either of them,” if the said counties, or either of them, shall declare their wish, by a majority of votes given, and shall elect delegates to the said convention. It is thus seen that in the very first step to organize the new State, the old State of Virginia recognized the peculiar condition of the two counties now in question, and provided that either of them should become part of the new State upon the Dec. 1870. J Virginia v. West Virginia. 57 Opinion of the court. majority of the votes polled being found to be in favor of that proposition. The convention authorized by this ordinance assembled in Wheeling, November 26, 1861. It does not appear that either Berkeley or Jefferson was represented, but it framed a constitution which, after naming the counties composing the new State in the first section of the first article, provided, by the second section, that if a majority of the votes cast at an election to be held for that purpose in the district composed of the counties of Berkeley, Jefferson, and Frederick, should be in favor of adopting the constitution, they should form a part of the State of West Virginia. That constitution also provided for representation of these counties in the Senate and House of Delegates if they elected to become a part of the new State,-and that they should in that event constitute the eleventh judicial district. A distinct section also declares, in general terms, that additional territory may be admitted into and become part of the State with the consent of the legislature. The schedule of this constitution arranged for its submission to a vote of the people on the first Thursday in April, 1862. This vote was taken and the constitution ratified by the people; but it does not appear that either of the three counties of Jefferson, Berkeley, and Frederick, took any vote at that time. Next in order of this legislative history is the act of the Virginia legislature of May 13, 1862, passed shortly after the vote above mentioned had been taken.* This act gives the consent of the State of Virginia to the formation of the State of West Virginia out of certain counties named under the provisions set forth in its constitution, and by its second section it is declared that the consent of the legislature of Virginia is also given that the counties of Berkeley, Jefferson, and Frederick, shall be included in said State “ whenever the voters of said counties shall ratify and assent to said consti- * Supra, p. 42. 58 Virginia v. West Virginia. [Sup. Ct Opinion of the court. tution, at an election held for that purpose, at such time and under such regulations as the commissioners named in the said schedule may prescribe.” This act was directed to be sent to the senators and representatives of Virginia in Congress, with instructions to obtain the consent of Congress to the admission of the State of West Virginia into the Union. Accordingly on the 31st of December, 1862, Congress acted on these matters, and reciting the proceedings of the Convention of West Virginia, and that both that convention and the legislature of the State of Virginia had requested that the new State should be admitted into the Union, it passed an act for the admission of said State, with certain provisions not material to our purpose. Let us pause a moment and consider what is the fair and reasonable inference to be drawn from the actions of the State of Virginia, the Convention of West Virginia, and the Congress of the United States in regard to these counties. The State of Virginia, in the ordinance which originated the formation of the new State, recognized something peculiar in the condition of these two counties, and some others. It gave them the option of sending delegates to the constitutional convention, and gave that convention the option to receive them. For some reason not developed in the legislative history of the matter these counties took no action on the subject. The convention, willing to accept them, and hoping they might still express their wish to come in, made provision in the new constitution that they might do so, and for their place in the legislative bodies, and iu the judicial system, and inserted a general proposition for accession of territory to the new State. The State of Virginia, in expressing her satisfaction with the new State and its constitution, and her consent to its formation, by a special section, refers again to the counties of Berkeley, Jefferson, and Frederick, and enacts that whenever they shall, by a majority vote, assent to the constitution of the new State, they may become part thereof; and the legislature sends this statute to Congress with a request that it will admit the new Dec. 1870.] Virginia v. West Virginia. 59 Opinion of the court. State into the Union. Now, we have here, on two different occasions, the emphatic legislative proposition of Virginia that these counties might become part of West Virginia; and we have the constitution of West Virginia agreeing to accept them and providing for their place in the new-born State. There was one condition, however, imposed by Virginia to her parting with them, and one condition made by West Virginia to her receiving them, and that was the same, namely, the assent of the majority of the votes of the counties to the transfer. It seems to us that here was an agreement between the old State and the new that these counties should become part of the latter, subject to that condition alone. Up to this time no vote had been taken in these counties; probably none could be taken under any but a hostile government. At all events, the bill alleges that none was taken on the proposition of May, 1862, of the Virginia legislature. If an agreement means the mutual consent of the parties to a given proposition, this was an agreement between these States for the transfer of these counties on the condition named. The condition was one which could be ascertained or carried out at any time; and this was clearly the idea of Virginia when she declared that whenever the voters of said counties should ratify and consent to the constitution they should become part of the State; and her subsequent legislation making special provision for taking the vote on this subject, as shown by the acts of January 31st and February 4th, 1863, is in perfect accord with this idea, and shows her good faith in carrying into effect the agreement. 2. But did Congress consent to this agreement ? Unless it can be shown that the consent of Congress, under that clause of the Constitution which forbids agreements between States without it, can only be given in the form of an express and formal statement of every proposition of the agreement, and of its consent thereto, we must hold that the consent of that body was given to this agreement 60 Virginia v. West Virginia. [Sup. Ct. Opinion of the court. The attention of Congress was called to the subject by the very short statute of the State of Virginia requesting the admission of the new State into the Union, consisting of but three sections,* one of which was entirely devoted to giving consent that these two counties and the county of Frederick might accompany the others, if they desired to do so. The constitution of the new State was literally cumbered with the various provisions for receiving these counties if they chose to come, and in two or three forms express consent is there given to this addition to the State. The subject of the relation of these counties to the others, as set forth in the ordinance for calling the convention, in the constitution framed by that convention, and in the act of the Virginia legislature, must have received the attentive consideration of Congress. To hold otherwise is to suppose that the act for the admission of the new State passed without any due or serious consideration. But the substance of this act clearly repels any such inference ; for it is seen that the constitution of the new State was, in one particular at least, unacceptable to Congress, and the act only admits the-State into the Union when that feature shall be changed by the popular vote. If any other part of the constitution had failed to meet the approbation of Congress, especially so important a part as the proposition for a future change of boundary between the new and the old State, it is reasonable to suppose that its dissent would have been expressed in some shape, especially as the refusal to permit those counties to attach themselves to the new State would not have endangered its formation and admission without them. It is, therefore, an inference clear and satisfactory that Congress by that statute, intended to consent to the admission of the State with the contingent boundaries provided for in its constitution and in the statute of Virginia, which prayed for its admission on those terms, and that in so doing it necessarily consented to the agreement of those States on that subject. * Supra, p. 42. Dec. 1870.] Virginia v. West Virginia. 61 Opinion of the court. There was then a valid agreement between the two States consented to by Congress, which agreement made the accession of these counties dependent on the result of a popular vote in favor of that proposition. 3. But the Commonwealth of Virginia insists that no such vote was ever given; and we must inquire whether the facts alleged in the bill are such as to require an issue to be made on that question by the answer of the defendant. The bill alleges the failure of the counties to take any action under the act of May, 1862, and that on the 31st of January and the 4th of February thereafter the two other acts we have mentioned were passed to enable such vote to be taken. These statutes provide very minutely for the taking of this vote under the authority of the State of Virginia ; and, among other things, it is enacted that the governor shall ascertain the result, and, if he shall be of opinion that said vote has been opened and held and the result ascertained and certified pursuant to law, he shall certify that result under the seal of the State to the governor of West Virginia; and if a majority of the votes given at the polls were in favor of the proposition, then the counties became part of said State. He was also authorized to postpone the time of voting if he should be of. opinion that a fair vote could not be taken on the day mentioned in these acts. Though this language is taken mainly from the statute which refers to Berkeley County, we consider the legal effect of the other statute to be the same. These statutes were in no way essential to evidence the consent of Virginia to the original agreement, but were intended by her legislature to provide the means of ascertaining the wishes of the voters of these counties, that being the condition of the agreement on which the transfer of the counties depended. The State thus showed her good faith to that agreement, and undertook in her own way and by her own officers to ascertain the fact in question. 62 Virginia v. West Virginia. [Sup. Ct. Opinion of the court. The legislature might have required the vote to have been reported to it, and assumed the duty of ascertaining and making known the result to West Virginia; but it delegated that power to the governor. It invested him with full discretion as to the time when the vote should be taken, and made his opinion and his decision conclusive as to the result. The vote was taken under these statutes, and certified to the governor. He was of opinion that the result was in favor of the transfer. He certified this fact under the seal of the State to the State of West Virginia, and the legislature of that State immediately assumed jurisdiction over the two counties, provided for their admission, and they have been a part of that State ever since. Do the allegations of the bill authorize us to go behind all this and inquire as to what took place at this voting? To inquire how many votes were actually cast ? How many of the men who had once been voters in these counties were then in the rebel army ? Or had been there and were thus disfranchised ? For all these and many more embarrassing questions must arise if the defendant is required to take issue on the allegations of the bill on this subject. These allegations are indefinite and vague in this regard. It is charged that no fair vote was taken; but no act of unfairness is alleged. That no opportunity was afforded for a fair vote. That the governor was misled and deceived by the fraud of those who made him believe so. This is the substance of what is alleged. No one is charged specifically with the fraud. No particular act of fraud is stated. The governor is impliedly said to have acted in good faith. No charge of any kind of moral or legal wrong is made against the defendant, the State of West Virginia. But, waiving these defects in the bill, we are of opinion that the action of the governor is conclusive of the vote as between the States of Virginia and West Virginia. He was in legal effect the State of Virginia in this matter. In addition to his position as executive head of the State, the legislature delegated to him all its own power in the premises. It vested him with large contro as to the time of taking the pec. 1870.] Virginia v. West Virginia. 63 Opinion of Davis, Clifford and Field, JJ., dissenting. vote, and it made his opinion of the result the condition of final action. It rested of its own accord the whole question on his judgment and in his hands. In a matter where that action was to be the foundation on which another sovereign State was to act—a matter which involved the delicate question of permanent boundary between the States and jurisdiction over a large population—a matter in which she took into her own hands the ascertainment of the fact on which these important propositions were by contract made to depend, she must be bound by what she has done. She can have no right, years after all this has been settled, to come into a court of chancery to charge that her own conduct has been a wrong and a fraud; that her own subordinate agents have misled her governor, and that her solemn act transferring these counties shall be set aside, against the will of the State of West Virginia, and without consulting the wishes of the people of those counties. This view of the subject renders it unnecessary to inquire into the effect of the act of 1865 withdrawing the consent of the State of Virginia, or the act of Congress of 1866 giving consent, after the attempt of that State to withdraw hers. The demurrer to the bill is therefore sustained, and the Bill must be dismissed. Mr. Justice DAVIS, with whom concurred CLIFFORD and FIELD, JJ., dissenting. Being unable to agree with the majority of the court in its judgment in this case, I will briefly state the grounds of my dissent. There is no difference of opinion between us in relation to the construction of the provision of the Constitution which affects the question at issue. We all agree that until the consent of Congress is given, there can be no valid compact or agreement between States. And that, although the point of time when Congress may give its consent is not material, yet, when it is given, there must be a reciprocal and concurrent consent of the three parties to the contract. Without 64 Virginia v. West Virginia. [Sup. Ct Opinion of Davis, Clifford and Field, JJ., dissenting. this, it is not a completed compact. If, therefore, Virginia withdrew its assent before the consent of Congress was given, there was no compact within the meaning of the Constitution. To my mind nothing is clearer, than that Congress never did undertake to give its consent to the transfer of Berkeley and Jefferson counties to the State of West Virginia until March 2, 1866. If so, the consent came too late, because the legislature of Virginia had, on the fifth day of December, 1865, withdrawn its assent to the proposed cession of these two counties. This withdrawal was in ample time, as it was before the proposal of the State had become operative as a concluded compact, and the bill (in my judgment) shows that Virginia had sufficient reasons for recalling its proposition to part with the territory embraced within these counties. But, it is maintained in the opinion of the court that Congress did give its consent to the transfer of these counties by Virginia to West Virginia, when it admitted West Virginia into the Union. The argument of the opinion is, that Congress, by admitting the new State, gave its assent to that provision of the new constitution which looked to the acquisition of these counties, and that if the people of these counties have since voted to become part of the State of West Virginia, this action is within the consent of Congress. I most respectfully submit that the facts of the case (about which there is no dispute), do not justify the argument which is attempted to be drawn from them. The second section of the first article of the constitution of West Virginia was merely a proposal addressed to the people of two distinct districts, on which they were invited to act. The people of one district (Pendleton, Hardy, Hampshire, and Morgan) accepted the proposal. The people of the other district (Jefferson, Berkeley, and Frederick) rejected it. In this state of things, the first district became a part of the new State, so far as its constitution could make it so, and the legislature of Virginia included it in its assent, and Dec. 1870.] Morgan v. Thornhill. 65 Statement of the case, Congress included it in its admission to the Union. But neither the constitution of West Virginia, nor the assent of the legislature of Virginia, nor the consent of Congress, had any application whatever to the second district. For though the second section of the first article of the new constitution had proposed to include it, the proposal was accompanied with conditions which were not complied with; and when that constitution was presented to Congress for approval, the proposal had already been rejected, and had no significance or effect whatever. Morgan v. Thornhill. No appeal lies to this court from a decree of the Circuit Court of the United States, exercising the supervisory jurisdiction Conferred upon it by the second section of the Bankrupt Act of 2d March, 1867. On motion to dismiss an appeal from the Circuit Court from the District of Louisiana; the case being this: “ An act to establish a uniform system of bankruptcy throughout the United States,” approved March 2,1867,* and which gives to the District Courts exclusive original jurisdiction in matters of bankruptcy, authorizes them to declare corporations bankrupt upon certain proceedings had. By the 2d section of the act it is enacted : “ That the several Circuit Courts of the United States, within and for the districts where the proceedings in bankruptcy shall be pending, shall have a general superintendence and jurisdiction of all cases and questions arising under this act, and except when special provision is otherwise made, may upon bill, petition, or other process of any party aggrieved, hear and determine the case as a court of equity. The powers and duties hereby granted may be exercised either by said court or by any justice thereof, in term time or in vacation.” * 14 Stat, at Large, 518. ö vol. XX. 66 Morgan v. Thornhill. [Sup. Ct Statement of the case. By the 8th section of the act it is further provided: “ That appeals may be taken from the District Court to the Circuit Courts in all cases in equity, and writs of error may be allowed to said Circuit Courts in cases at law, under the juris, diction created by this act, when the debt or damages claimed amount to more than $500; and any supposed creditor may appeal whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim may appeal from the decision of the District Court to the Circuit Court.” And by the 9th: “ That in cases arising under this act no appeal or writ of error shall be allowed in any case from the Circuit Courts to the Supreme Court of the United States, unless the matter in dispute exceeds $2000.” Under this bankrupt act the District Court at New Orleans on the 11th of January, 1870, on the petition of one Thornhill, a creditor, decreed the Bank of Louisiana to be bankrupt. The charter of the bank had previously to this date been declared, on proceedings in one of the State courts, forfeited under a statute of the State, and its afiairs had been placed in the hands of one Morgan and others, as commissioners, to liquidate them. These commissioners were in possession of the property of the bank. The decree of the District Court in bankruptcy superseded the action under the State law, ordering as it did “ that the parties holding any of the property of the said bank, surrender the same to the proper officers of this court,” and being followed up soon afterwards (June, 1870) by injunctions against the commissioners to refrain and desist from making any transfer or disposition of any part of the assets of the bank, or any payment out of them, and from all litigation or compromise about them. Hereupon Morgan and the other commissioners filed their petition (no appeal being in any way taken in the matter) m the Circuit Court for the District of Louisiana. In this they represent ” what had been done in the District Court; and having set all this forth proceed; Dec. 1870.] Morgan v. Thornhill. 67 Statement of the case. “Now your petitioners in their said capacities of commissioners of the Bank of Louisiana, respectfully represent that they are aggrieved, and the creditors of said bank are also aggrieved and injured by the proceedings, orders, and judgment rendered in said eases, and believe the same to be erroneous and contrary to law; that the issuing and continuance of said injunctions has been, since the month of June last, and still is, working great injury to the creditors of said bank; that petitioners are prohibited thereby from defending or prosecuting the many suits now pending in which the said bank is a party, or to appear and protect its interests in any litigation now pending in which the said bank is interested, or to institute such legal proceedings as are necessary to interrupt prescription on claims held by them as commissioners; that the judgment rendered in said suit is erroneous.’' The petition concluded with this prayer: “And your petitioners pray that the orders made in said cause be suspended in their operation and legal effect, and that the superintending and revising jurisdiction conferred upon this court in such cases by the act of Congress entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ approved March 2, 1867, inay be exercised by your honor, and that the said orders be examined, and, if found not to be warranted by law, set aside or rescinded, and that your petitioners be allowed to proheed with the execution of the trusts conferred upon them by law.” The Circuit Judge, at chambers, affirmed the action in the District Court, holding that the act of the State of Louisiana was suspended by the Bankrupt Act, and that the proceedings in the State court, under whose judgment the charter of the bank was dissolved and the commissioners appointed, were void for want of jurisdiction. An appeal was afterwards granted by one of the justices of this court, and the bond approved, and supersedeas directed to be issued, the appeal having been prayed and the bond approved within the ten days from the rendition of the decree. 68 Morgan v. Thornhill. [Sup. Ct Argument against the jurisdiction. Jfr. C. Cushing, for the creditors in bankruptcy, appellees in the case, now moved to dismiss the appeal. 1st. Because the decree was rendered by the circuit judge by virtue of the special power conferred on the Circuit Court or the judge thereof to exercise “ a general superintendence and jurisdiction of all cases and questions arising under” the Bankrupt Act, conferred by the 1st section of said act, to be exercised by the said Circuit Court or the judge thereof “in term time or vacation.” From which class of decree no appeal lies. 2d. Because it was not final. In support of his motion he argued: The 8th section of the Bankrupt Act regulating appeals, makes no change in the general law of appeals, except in reference to the amount and time within which an appeal must be taken, in which it is less favorable than the general law on regulating appeals. An appeal, therefore, from the District Court can only be taken to the Circuit Court in the cases in which it can be taken ordinarily; that is, it must be taken from a final decree of the District Court. In all other cases where the Circuit Court acts in matters of bankruptcy, it is by virtue of the special, comprehensive, and almost universal power of superintendence conferred by the 2d section of the act. By that section, the Circuit Court has a general “ superintendence of all cases and questions arising under” the Bankrupt Act. The only exception to this general jurisdiction of superintendence is in the case of appeals and writs of error. It is submitted that the cases in which an appeal lies to the Supreme Court of the United States under the Bankrupt Act are necessarily limited to such final decrees made in the Circuit Court as have been made in cases brought there by appeal as originating there. This case did not come into the Circuit Court by appeal from the District. Court, nor did it originate in the Circuit Court. It was brought before the circuit judge by petition, invoking the special revisory jurisdiction of the circuit judge. The revisory power given by the 2d section embraces all Dec. 1870.] Morgan v, Thornhill 69 Argument in support of the jurisdiction. “questions” which can arise under the act. The word decree or judgment is not used. Obviously and wisely the action of the Circuit Court on these questions was meant to be summary. On any other view every “ question ” that could arise in proceedings in bankruptcy could be brought here, though there was no judgment, no decree, no order. It is a familiar principle of law, that the appellate jurisdiction of this court does not include a decree under a law conferring a new and special jurisdiction, in which no remedy by appeal is granted.* The decree or order appealed from in this case was made under a law conferring a new and special jurisdiction on the circuit judge. From the exercise of this special jurisdiction no appeal is given. And as this court exercises its appellate jurisdiction only under the acts of Congress, the burden is on the appellants to show that an appeal lies in their case. It is to be noted, too, in this case, that the general superintendence granted to the circuit judge by the 2d section of the Bankrupt Act is to be exercised by him in court or at chambers. This is a controlling fact, to show that no right of appeal was intended to be given from the decisions of the circuit judge in the exercise of this power of superintendence. The exercise of the appellate power of this court is confined almost exclusively to the final judgments or decrees of the Circuit Court rendered in term time. This court, in United States v. bourse,f commenting on the fact that in the case then before the court the judge of the court below was authorized to act at chambers, say: “From a decision of the district judge out of court, how could the government appeal to the Circuit Court ?” 2. The decree is not a final decree, having been rendered out of court. Only interlocutory decrees are so rendered. Messrs. W. M. Evarts and P. Phillips, contra: The revisory pow’er of the Circuit Court, in one form or — - ■ *I * United States v. Nourse, 6 Peters, 470, 493. f Cited supra. 79 Morgan v. Thornhill. [Sup. Ct. Argument in support of the jurisdiction. another, and it may be by an appeal as well as a petition, extends, in virtue of the 2d section, over the whole matter intrusted to the jurisdiction of the District Court, and if the act had been silent as to an appeal to this court from the Circuit Court, it would have been maintainable under the acts of 1789 and 1803.* But the act is not silent. The 9th section declares that no appeal or writ of error shall be allowed in any case from the Circuit to the Supreme Court, unless the matter in dispute shall exceed $2000. It is accordingly evident that Congress assumed that appeals would be taken from the Circuit Court, and contented itself with alone regulating the amount which gave the jurisdiction. If, therefore, the decree is final, and the amount in controversy exceeds $2000, the appeal is well taken. Now the District Court, by its judgment, had taken from the administrators appointed by the laws of the State an estate worth many hundreds of thousands of dollars. This judgment was, by the decree of the Circuit Court, affirmed, and the rights set up in the petition of review were denied. It is urged by Mr. Cushing that no appeal lies in this case because the matter was “ before the circuit judge by petition invoking the special revisory jurisdiction.” That is, though it be admitted that the decree is final, and the amount in controversy exceeds $2000, no appeal lies because the case was not carried from the District Court in the form of an appeal or writ of error under the 8th section. But it is a mistake to suppose that the appellate power is confined to any particular form. It is ordinarily exercised by appeal or writ of error. In many cases under statute it is done by a certificate of division; or the legislature may provide that it should be exercised by certiorari, petition for review, or by any other process deemed convenient. It is further objected that no appeal lies when this special jurisdiction is exercised, because it is provided that the decree may be rendered “ by the court or by any justice * Ex parte Zellner, 9 Wallace, 246. Dec. 1.870.] Morgan v. Thornhill. 71 Argument in support of the jurisdiction. thereof in term time or in vacation.” But terms of court are the arbitrary creations of statute, which may be modified or abolished by statute. Is it any less the exercise of judicial power to decide a case in vacation? If this judicial power be exercised by a subordinate tribunal, what is there in the nature of things which should free it from the supervision of the superior court? If there be a lack of formality in the discharge of judicial functions in vacation it would seem to be more, not less, important that such proceeding should be reviewed by the superior court. The 8th section provides that appeals may be taken from the District to the Circuit Court in all cases in equity, and writs of error in cases at law where the amount in controversy exceeds $500. Appeal is also allowed to any creditor whose claim is rejected, or to an assignee dissatisfied with the allowance of a claim. It is tacitly admitted that the present appeal would be sustained if the case had originated under the 8th section and been carried to the Circuit Court, and yet in the large jurisdiction conferred by the 2d section, it is maintained that the design of Congress was to exclude the. appellate jurisdiction of this court. This seems unreasonable. The petition of review filed in the Circuit Court, presented a case under the act for adjudication. The jurisdiction to hear and determine it is not contested. After providing in the 2d and 8th sections for the exercise of the appellate power of the Circuit Court, the 9th section declares as follows: “That in cases arising under this act no appeal or writ of error shall be allowed in any case from the Circuit Court to the Supreme Court, unless the matter in dispute should exceed $2000.” The affirmative form of this proposition is that an appeal or writ of error shall be allowed in cases arising under this act where the amount in controversy exceeds $2000. This would include all casee, and if so important a portion of the Morgan v. Thornhill. [Sup. Ct Restatement of the case in the opinion. Circuit Court’s jurisdiction was intended to be excepted, we should expect to find a special exclusion. 2. A decree which changes and transfers the right of property in litigation is a final decree, for if otherwise irreparable injury would be incurred before redress could be had.* Mr. Justice CLIFFORD delivered the opinion of the court. Exclusive original jurisdiction, in all matters and proceedings in bankruptcy, is conferred by the acts of Congress upon the District Courts, but in case of a vacancy in the office of a district judge, or in case the district judge shall, from sickness, absence, or other disability, be unable to act, the circuit judge may make all necessary rules and orders preparatory to the final hearing, and cause the same to be entered or issued, as the case may require, by the clerk of the District Court.f Certain occurrences, during the late civil war, so crippled the resources of the Bank of Louisiana that the directors became unable to comply with the requisitions of their charter. Proceedings were accordingly instituted by the attorney-general of the State, under the act “ to provide for the liquidation of banks,” in the proper court of the State, to forfeit the charter of the bank, and on the twentieth of May, 1868, a decree was entered in the case that the charter of the bank be declared forfeited, and that its affairs be liquidated according to law. Pursuant to that decree the appellants were appointed commissioners for that purpose, and the record shows that they accepted the trust, that they took the required oaths, that they gave the necessary bonds, that they entered upon the discharge of their duties, and that they continued to administer the affairs of the bank until the twentieth of May ef the following year, when the appellees, or the first three named, filed a petition in the District Court for that district, * Thompson v. Dean, 7 Wallace, 345. f 14 Stat, at Large, 517 ; 16 Id. 174. Dec. 1870.] Morgan v. Thornhill. 73 Restatement of the case in the opinion. praying that the bank and the said commissioners, in their character as such, might be declared a bankrupt, and that a warrant might issue to take possession of the estate of the bank in the hands of the commissioners. They represented in their petition that the bank and the commissioners had each, within six months preceding the date of the petition, committed an act of bankruptcy, that the corporation had for a long time suspended payment of its commercial paper, and that the commissioners had, within the same period, made certain payments, and transferred certain assets of the bank in payment of its debts, with intent to give a preference to certain creditors of the bank. Special reference to the supplemental petition is unnecessary, as the representations of the petition are substantially the same, and the two were heard together in the court below. Three several injunctions were granted in the case by the district judge sitting in bankruptcy, and on the eleventh of January, 1870, the District Court entered a decree that the bank was a bankrupt. Within ten days from the date of the decree a petition for a review of those orders and decrees was filed by the commissioners in the Circuit Court, under the second section of the Bankrupt Act, and the Circuit Court having first heard the parties, on the second of March, 1870, entered a decree affirming the orders and decrees of the District Court. Application was immediately made by the commissioners for an appeal to this court, which was refused by the circuit judge, but it was ultimately granted by one of the associate justices of this court, more than ten days, however, subsequent to the date of the decree of the Circuit Court. Seasonable application for the appeal having been made and a sufficient bond tendered, the appellants contended, and still contend, that the appeal as subsequently allowed operated as a supersedeas from the date of the first application. Different views, however, were entertained by the district judge, and on the twenty-ninth of March, 1870, he passed an order directing the marshal to resume possession 74 Morgan v. Thornhill. [Sup. Ct. Opinion of the court. of all such portion of the assets of the bank as he had surrendered to the commissioners. Dissatisfied with that order the commissioners applied to the associate j ustice of this court assigned to that circuit to vacate that order and to enforce the supersedeas supposed to have been created by the appeal as allowed in pursuance of the last application. His opinion was that the appeal, as allowed, related back to the date of the original application for the same to the circuit judge, and that it operated as a supersedeas, the same as it would have done if it had been granted within ten days from the date of the decree dismissing the petition for a review and affirming the decree adjudging the corporation a bankrupt. Influenced by those views he made a decree that all the orders in the cause subsequent to the twenty-first of January, 1870, should be vacated and annulled, leaving the injunction of that date granted by the circuit judge in full force. Certain other orders, nevertheless, were subsequently made by the district judge; as, for example, he passed an order for the appointment of receivers, and another giving the appointees authority to pay rents, expenses, and charges incurred by them out of the funds of the bank. Special objection is made by the appellants to those orders as forbidden by the supersedeas, but the main purpose of the appeal when taken was to reverse the decree of the Circuit Court affirming the decree of the District Court, and dismissing their petition praying for a reversal of that decree. Since the appeal was entered the appellees have filed a motion to dismiss the same, upon the ground that no appeal lies to this court from a decree of the Circuit Court rendered in the exercise of the special jurisdiction conferred upon that court by the first clause of the second section of the Bankrupt Act.* Circuit Courts have a general superintendence and jurisdiction, by virtue of that clause, of all cases and questions arising under that act, within and for the districts where the * 14 Stat, at Large, 518. Dec. 1870.] Morgan v. Thornhill. 75 Opinion of the court. proceedings in bankruptcy are pending, and the provision is, that those courts may, upon bill, petition, or other proper process, of any party aggrieved, except when special provision is otherwise made, hear and determine the case (as) in a court of equity, but the next clause of the same section provides that the powers and jurisdiction thereby granted may be exercised either by said court or by any justice thereof, in term time or vacation, and neither of the two clauses makes any provision for an appeal in any such case to this court, whether the case or question presented or involved in the bill, petition, or other proper process is submitted to the court or to a justice thereof, or whether the case or question is heard or determined in vacation or in term time. Apart from those two provisions the third clause of the section provides that Circuit Courts shall also have concurrent jurisdiction with the District Courts of all suits at law or in equity which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee touching any property or rights of property of such bankrupt transferable to or vested in such assignee. Controversies, in order that they may be cognizable under that clause of the section, either in the Circuit or District Court, must have respect to some property or rights of property of the bankrupt transferable to or vested in such assignee, and the suit, whether it be a suit at law or in equity, must be in the name of one of the two parties described in that clause and against the other. All three of those conditions must concur to give the jurisdiction, but where they all concur the party suing may, at his election, commence his guit either in the Circuit or District Court, and if in the latter, it is clear that the case, when it has proceeded to final judgment or decree, may be removed into the Circuit Court for re-examination by writ of error, if it was an action at law, or by appeal if it was a suit in equity, provided the debt or damage claimed amounts to more than five hundred dollars, and the writ of error is seasonably sued 76 Morgan v. Thornhill. [Sup. Ct. Opinion of the court. out and the plaintiff in. error complies “ with the statutes regulating the granting of such suits,” or the appeal is claimed and the required notices are given within ten days from the judgment or decree.* * Such a suit, however, by or against such assignee, or by or against any person claiming an adverse interest in any such property or rights of property, cannot be maintained in any court whatsoever unless the same shall be brought within two years from the time the cause of action, for or against such assignee, accrued; which shows very satisfactorily that the jurisdiction conferred by the third clause is other and different from the special jurisdiction and superintendence described in the first clause of the section. Where such a suit, between such parties, touching such subject-matter, proceeds in a Circuit Court to a final judgment or decree, and the debt or damage claimed or the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, no doubt is entertained that the judgment or decree may be removed into this court for reexamination by writ of error, if the judgment was rendered in a civil action, or by appeal if the decree was entered in a suit in equity, as in other similar cases falling within the appellate jurisdiction of this court.f Creditors whose claims are wholly or in part rejected may appeal from the decision of the District Court to the Circuit Court of the same district, if the appeal is claimed and the required notices are given within ten days from the entry of the decree or decision, but the appellant in such a case is required to file in the clerk’s office a statement in writing of his claim, setting forth the same substantially as in a declaration for the same cause of action at law, and the assignee is required to plead or answer thereto in like manner, and like proceedings shall thereupon be had as in an action at law, except that no execution shall be awarded against the assignee for the amount of the debt found due to the creditor. * 14 Stat, at Large, 520. * 14 Stat, at Large, 521 • 1 Id. 84, Dec. 1870.] Morgan v. Thornhill. 77 Opinion of the court. Assignees, also, who are dissatisfied with the allowance of a claim preferred by a creditor, may also appeal from the decision of the District Court to the Circuit Court of the same district at any time within ten days from the entry of the decree or decision, but it is certain that neither the creditor nor the assignee can appeal to this court from the decree of the Circuit Court in such a case, as the express enactment is that the final judgment of the court shall be conclusive and that the list of debts shall, if necessary, be altered to conform thereto. Confirmation of that view is also derived from the succeeding clause in the twenty-fourth section of the act, which provides that the prevailing party shall be entitled to costs, and that the costs, if they are recovered against the assignee, shall be allowed out of the estate of the bankrupt.* Authority is also given to any creditor opposing the discharge of a bankrupt to file a specification in writing of the grounds of his opposition, and the court in such case may, in its discretion, order any question of fact so presented to be tried at a stated session of the District Court; and the better opinion perhaps is that the trial contemplated by the section, if ordered, is a trial by jury.f Debts contracted by a debtor and provable under the Bankrupt Act, if the same amount to two hundred and fifty dollars, authorize the creditor or creditors to file a petition praying that the debtor may be adjudged a bankrupt, and the fortieth section of the same act provides that, upon the filing of the petition, if it appears that sufficient grounds exist therefor, the court shall direct the entry of an order requiring the debtor to appear and show cause, at a court of bankruptcy to be holden at a time specified in the order, why the prayer of the petition should not be granted. Prior to the return day of the order it is required that notice shall be given to the debtor, and the provision is that the court shall, if the debtor so demand on the same day, order a trial * 14 Stat, at Large, 528. t 14 Stat, at Large, 532; Gordon et al. v. Scott et al., 2 Bankr ipt Register, 28; In re Eidom, 3 Id. 39; In re Lawson, 2 Id. 125. 78 Morgan v. Thornhill. [Sup. Ct Opinion of the court. by jui y, at the first term of the court at which a jury shall be in attendance, to ascertain the fact of such alleged bankruptcy.* Appellate jurisdiction, in its strictest sense, as exercised under the Judiciary Act, is certainly conferred upon the Circuit Courts in four classes of cases by the express words of the Bankrupt Act, without any resort to construction: (1.) By appeal from the final decree of the District Courts in suits in equity commenced and prosecuted in the District Courts by virtue of the jurisdiction created by the third clause of the second section of the act. (2.) By writs of error sued out to the District Court in civil actions finally decided by the District Courts, in the exercise of jurisdiction created by the same clause of that section. (3.) By appeal from the decisions of the District Courts rejecting wholly or in part the claim of a creditor, as provided in the eighth section of the act. (4.) By appeal from the decisions of the District Courts allowing such a claim when the same is opposed by the assignee. Appeals from the District Courts to the Circuit Courts are not allowed in any case unless the appeal is claimed and notice given thereof to the clerk of the District Court, to be entered in the record of the proceedings, and also to the assignee, creditor, or the proper party in equity, within ten days from the date of the decision or decree, nor unless the appellant, at the time of claiming the same, also gives bond in the manner required by law in case of such an appeal from a subordinate to an appellate tribunal. Whether a writ of error will lie from the Circuit Court to the District Court where the debtor opposes the petition that he may be adjudged a bankrupt, and the question whether he has committed an act of bankruptcy is tried by a jury, as provided in the forty-first section of the act, is not a question involved in the case before the court. Nor is the question presented in the case whether a writ of error will lie from the Circuit Court to the District Court where an issue * 14 Stat. at Large, 537. Dec. 1870.] Morgan v. Thornhill. 79 Opinion of the court. of fact is framed, as provided in the thirty-first section of the act, and the same is tried by a jury at a stated session of the District Court. Suffice it to say at this time that such cases, when tried by a jury, if the Circuit Court has any jurisdiction upon the subject, must be removed into the Circuit Court by a writ of error, as they, when tried by a jury, are excluded from the special jurisdiction conferred in the first clause of the section, by the very words of the clause. Where “ special provision is otherwise made ” the case is excluded from the general superintendence and jurisdiction of the Circuit Court by the exception introduced, as a parenthesis, into the body of that part of the section. Special provision is made in such cases, within the meaning of that exception,'when the case is tried by a jury, and there is not a word in the act having the slightest tendency to show that Congress intended that a fact found by a jury in a District Court should be re-examined in a summary way by the Circuit Court, and it is not pretended that a party may appeal and be entitled to a second trial by jury, unless the first verdict is set aside for error of law. Such cases may be tried by the District Court without a jury, and in that event no doubt is entertained that the case is within the supervisory jurisdiction of the Circuit Court. Due notice was given to the bank of the petition filed in the Circuit Court that the corporation should be adjudged a bankrupt, and the commissioners, as the legal representatives of the bank, appeared and made defence, but they did not demand in writing, or otherwise, a trial by jury, and the case was heard and determined by the court. Subsequent to the decree adjudging the bank a bankrupt, the commissioners presented a petition to the circuit judge, praying for a reversal of that decree, by virtue of the special jurisdiction conferred upon the Circuit Court in the first clause of the second section of the Bankrupt Act, and the petition was heard at chambers, and a decree was entered dismissing the petition, and affirming the decree of the District Court. 80 Morgan v. Thornhill. [Sup. Ct Opinion of the court. Independent of the Bankrupt Act the District Courts possess no equity jurisdiction whatever, as the previous legis* lation of Congress conferred no such authority upon those courts since the prior Bankrupt Act was repealed.* Whatever jurisdiction, therefore, they possess in that behalf is wholly derived from the Bankrupt Act now in force. Undoubtedly the jurisdiction conferred by the third clause of the second section is of the same character as that conferred upon the Circuit Courts by the eleventh section of the Judiciary Act, and it follows that final judgments in civil actions and final decrees in suits in equity rendered in such cases, where the sum or value exceeds two thousand dollars, exclusive of costs, may be re-examined in this court when properly removed here by writ of error or appeal, as required by existing laws. Concurrent jurisdiction with the District Courts of all suits at law or in equity are the words of that, clause, showing conclusively that the jurisdiction intended to be conferred is the regular jurisdiction between party and party, as described in the Judiciary Act and the third article of the Constitution. Cases arising under that clause, where the amount is sufficient, are plainly within the ninth section of the Bankrupt Act, and as such may be removed here for re-examination, but the revision contemplated by the first clause is evidently of a special and summary character, substantially the same as that given in the prior Bankrupt Act, as sufficiently appears from the words “ general superintendence,” preceding and qualifying the word “ j urisdiction,” and more clearly from the fact that the jurisdiction extends to mere questions as contradistinguished from j udgments or decrees as well as to cases, showing that it includes the latter as well as the former, and that the jurisdiction may be exercised in chambers as well as in court, and in vacation as well as in term time. Much stress was laid, in argument in support of the theory that an appeal will lie to this court from a decision of the Circuit Court rendered under«the first clause of the second * Ex parte Christy, 3 Howard, p. 311. Dec. 1870.] Morgan v. Thornhill. 81 Opinion of the court. section, upon the fact that the case or question, as therein provided, may be heard and determined in a court of equity, as the phrase reads in the printed volume of the Statutes at Large, but that phrase, even if correctly printed, must be read and considered in connection with the succeeding clause, and when so read and considered it is plain that the meaning is the same as it would be if it read “ as a court of equity,” or “as in a court of equity;” that it merely prescribes the rule of decision by which the court is to be governed, and that it is entirely consistent with the subsequent clause before referred to, which provides that the case or question maybe heard and determined by a justice of the court as well as by the court, and in vacation as well a« in term time, which is palpably inconsistent with the theory that Congress intended that an appeal from the decision of any case or question under the first clause should be allowed to this court. But the phrase “ hear and determine the case in a court of equity,” as printed in the fourteenth volume of the Statutes at Large, is erroneously transcribed from the act of Congress as it passed the two Houses and was approved by the President. Correctly transcribed it reads “ hear and determine the case as in a court of equity ” which shows, without any resort to construction, that all Congress intended by the phrase was, to prescribe the rule of decision, whether it was made in court or at chambers or in term time or vacation. Decrees in equity, in order that they may be re-examined in this court, must be final decrees rendered in term time, as contradistinguished from mere interlocutory decrees or orders which may be entered at chambers, or, if entered in court, are still subject to revision at the final hearing. Adopt the theory of the appellees and the proceedings in bankruptcy might be protracted indefinitely, as every question arising in the courts may be transferred first to the Circuit Court and then to this court, which would tend very largely to defeat all the beneficent purposes of the Bankrupt Act. For these reasons the appeal is Dismissed for want of jurisdiction. 6 VOL. Xi. 82 The Protector. [Sup. Ct Statement of the case. The Protector. An appeal dismissed because taken in the name of William A. Freeborn Co.; the court holding that no difference existed between writs of error and appeals as to the manner in which the names of the parties should be set forth. On motion to dismiss an appeal; the case being this: By the 22d section of the Judiciary Act it is enacted that decrees in civil actions may be brought here by writ of error. By the 82d section of the act it is enacted: “ That no summons, writ, declaration, return, process, judgment, or other proceeding in civil causes in any of the courts of the United States, shall be abated, arrested, quashed, or reversed, for any defect or want of form, but the said courts respectively shall'proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleadings, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer which the party demurring shall specially set down. . . . And the said courts respectively shall and may . . • from time to time amend all and every such imperfection, defect, and want of form, except, &c., and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion and by their rules prescribe.” An act of March 3,1803, enacts that decrees in admiralty must, if brought here, be brought by appeal, and enacts: 11 Such appeals shall be subject to the same rules, regulations, and restrictions, as are presented in law in cases of writs of error, and that the said Supreme Court shall be and hereby is authorized and required to receive, hear, and determine such appeal?. tn this state of statutory law William A. Freeborn, James F. Freeborn, and Henry P. Gardner, of the city of New Dec, 1870.] The Protector. 83 Argument against the jurisdiction. York, merchants, filed a libel in the District Court for the Southern District of Alabama against the ship Protector. That court dismissed the libel “ at the costs of the libellants, and ordered execution therefor to issue against the libellants.” This decree was confirmed by the Circuit Court. An appeal was then taken to this court. The petition for appeal was entitled William A. Freeborn $ Co., and prayed for an appeal in the name of William A. Freeborn Co. The allowance of the appeal was in the same name and style. The bond recited the appeal in the name of William A. Freeborn Company. The citation also directed the party to appear in the cause wherein William A. Freeborn Company were appellants. Who constituted the Co. or Company, nowhere appeared in the proceedings on appeal. Mr. Phillips, for the appellees, now moved to dismiss the case for want of jurisdiction. In support of his motion: There is no doubt that if this were a writ of error, the writ would have to be dismissed as vicious.* Is the rule different when applied to appeals? When a decree is joint against several all must appeal, without there is a summons and severance, and, as a consequence of this, whether the cause is to be removed by writ of error or appeal, all the parties must be named in the process by which the removal is effected.f By searching the record in the case wTe could doubtless gather the fact, that the three named libellants did compose the firm of William A. Freeborn & Co., and a like result might have been obtained in all the cases in which the court has dimissed writs of error. Mr. Blount, contra, opposed the motion, and moved on his side: 1st. To amend the proceedings on appeal by the libel in the cause; and 2d, to amend the libel, so as that a decree * Deneale v. Stump, 8 Peters, 526; Smith v. Clark, 12 Howard, 21. t Owings v. Kincannon, 7 Peters, 403. 84 The Protector. [Sup. Ct. Argument in favor of the jurisdiction. might be rendered for interest and damages above the demand. 1st. It has been frequently decided that on an appeal to the Supreme Court in an admiralty cause, the cause is before that court as if in the inferior court. The libel here setting forth the names of all the parties who compose the firm of William A. Freeborn & Co., the whole record and proceedings being before this court, and the trial being de novo, the case is one for amendment under the thirty-second section— a section most remedial in its intent and broad in its language. It is the settled practice in admiralty proceedings where merits appear upon the record, but the libel is defective to allow the party to assert his rights in a new allegation.* 2d. In Weaver v. Thompson,\ an appellee in admiralty was allowed to amend his libel in the appellate court so as to make a claim there for damages above costs, caused by a vexatious appeal. The court having taken the matter into advisement, granted the motion to dismiss; an opinion, as given further on, being read from the bench, and holding that there was no difference in respect of the manner in which the names of the parties should be set forth between writs of error and appeals. Mr. Carlisle hereupon submitted a motion for reargument, with a brief, thus; 1. In granting the motion to dismiss, it has been assumed that the same rule is applicable as in cases of writs of error. But it is respectfully submitted that this is not so. The act of 1803 provides, “ That such appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error, and that the said Supreme .Court shall be, and hereby is, authorized and required to receive, hear, and determine such appeals.” Now it would redder the act nugatory if there were to be no difference, after its passage, between writs of error and * The Adeline, 9 Craneh, 244. f 1 Wallace, Jr., 843. Dee. 1870.] The Protector. 86 Argument in favor of the jurisdiction. appeals. The very object of the act was to recognize and establish these as two distinct modes by which the appellate jurisdiction might be acquired; and the inherent distinctions between the one proceeding and the other were to be observed, notwithstanding the general language above quoted, which general language was intended to apply only as to the substantial conditions on which the right to appeal should attach. The appeal must be^ always prayed and allowed in the court below or by a justice of the Supreme Court; and in either case these proceedings form part of the record in the court below, and are not, as in cases of writs of error, process out of this court. Copies only come here with the transcript, and this court is required to receive them only as parts of that transcript, and as “ proceedings in that cause.” It would seem, therefore, that the reason of the rule, in cases of writs of error (viz., that it is an original writ and a new suit) does not apply. The whole record—appeal, allowance, and all—comes together as the same old suit; and it would be strange indeed if the appellate court, which is required to receive, hear, and determine the suit, should have any difficulty in ascertaining who are appellants and who appellees. In the case of a writ of error there is nothing to amend by. In the case of an appeal there is everything. Here is simply an abbreviated description, not repugnant to the record, but plainly pointing to it, and is made certain by being filed in the cause below, and being sent up as part of the proceedings in that cause. 2. The order dismissing this appeal proceeds on the ground that the defect is a jurisdictional one. But it is submitted that a distinction is to be observed between jurisdiction of the subject-matter shown by the record [the case] and jurisdiction of the parties. No consent, stipulation, or waiver can confer jurisdiction of the first kind; nor can it confer jurisdiction of the parties, unless it appears that the court mad take jurisdiction between such parties. But it is submitted that all mere informalities and irregularities may be 86 The Protector. [Sup, Ct. Opinion of the court. cured by the voluntary appearance of parties of whom the court may take jurisdiction in a proper case. If it were otherwise, then it is hazarding nothing to say that an examination of the records of this court would show hundreds of decrees and judgments, in most important causes, to have been and to be mere nullities for want of jurisdiction. To avoid the waiver of such an objection to the jurisdiction, it is the common practice and understanding of the bar that the appearance must be expressed and limited to be “special;” and, to avoid questions of fact in this respect, not many terms ago, the clerk, by direction of the court, caused the precipe to be used in such cases to be printed, using the word “ special.” The opinion •'originally read, and which had been retained until the motion to reargue was disposed of, was now delivered to be reported. Mr. Justice NELSON had thus delivered it: The motion made by the appellees to dismiss the case from the docket for want of jurisdiction, is grounded upon a defect of the title of the parties in the appeal as allowed. The title is, “ William A. Freeborn $ Co. v. The Ship Protector and owners.” This defect in a writ of error has been held fatal to the jurisdiction of the court since the case of Deneale et al. v. Stump’s Executors,* down to the present time, f Nor can the writ be amended, according to repeated decisions of this court.| The only question before us is, whether the same rule applies to appeals in admiralty. Originally, decrees in equity and admiralty were brought here for re-examination by a writ of error, under the twenty-second section of the J udiciary Act. This was changed by the act of Mar.ch 3, 1803, by which appeals were substituted in place of the writs of error in cases of equity, admiralty, and prize; but the act * 8 Peters, 526. j- The Heirs of Wilson The Life and Fire Insurance Company of New York, 12 Id. 140; Smyth v. Pevine & Co., 12 Howard, 827; Davenport v. Fletcher, 16 Id. 142. | Porter v. Foley, 21 Howard, 393; Hodge et al. v. Williams, 22 Id. 87. Dec. 1870.] The Protector. 87 Opinion of the court. provides “ that the appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in cases of writs of error.” In Owings el al. v. Andrew Kincannon,* the appeal was dismissed because all the parties to the decree below had not joined in it. Chief Justice Marshall, in delivering the opinion of the court, referred to the case of Williams v. The Bank of the United Slates,\ which was a writ of error, where it was held that all the defendants must join, and applied the same rule to the case of an appeal. He cited the act of 1803, and observed that “ the language of the act which gives the appeal appears to us to require that it should be prosecuted by the same parties who would have been necessary in a writ of error.” But the case of Francis 0. J. Smith, appellant, v. Joseph W. Clark et al.,% is more direct to the point before us. It was a motion to docket and dismiss in the case of an appeal, under the 43d rule of the court. The certificate of the clerk, upon which it was founded, described the parties as in the title above. Chief Justice Taney, in giving the opinion of the court, stated that the certificate conformed to the rule in all respects but one, and that was in the statement of the parties. The respondents were stated to be Joseph W. Clarke and others, from which it appeared that there were other respondents, parties to the suit, who were not named in the certificate. He then referred to the case of a writ of error,§ where it was held that all the parties must be named in the writ, and the name of one or more of them, and others, were not a sufficient description; and, Mso, to the case of Holliday et al. v. Baston et