1797. punishment, and to appoint the place of trial to be in the courts of the United States, exclusively of the state courts; yet, on examination, it will be found, that congress has not, by any act, legislated on any of these points. No act of congress, has, either definitely or by general description, made the false fabrication of such a writing to be a forgery, nor has any act declared how such a forgery or forgeries, generally, shall be punished. No act has given jurisdiction to any court, either concurrent or exclusive, to try the crimes of forgeries generally.

If these positions be true, they tend to shew it doubtful, whether, at this day, under the existing laws of the United States, this forgery could be tried and punished in their courts; however, future laws may make them so.

say

To that the constitution of the United States, operated any abridgment of the jurisdiction of the state courts, as to crimes generally, of forgery, perjury, larceny, merely because they related to the interest or concerns of the United States, or their officers, acting under their laws, before they themselves, by their own acts, shall have provided for the punishment of such crimes, and taken order as to the jurisdiction of them, would lead to this consequence, that for a time, consistent with such doctrine, some crimes would, by law, be subject to no prosecution or punish

ment.

In the 2d vol. of the Federalist, page 323, 324. which may be called a commentary on the constitution of the United States, contemporary with it, it is held that "the states retain all preexisting authorities which may not be exclusively delegated to "the federal head; and that this exclusive delegation can only "exist in one of three ways; 1. where an authority is in express "terms granted to the union; 2. or where a particular authority "is granted to the union, and the exercise of a like authority is "prohibited to the states; 3. or where an authority is granted to "the union, with which a similar authority in the states would "be utterly incompatible. Though these principles may not apply "with the same force to the judiciary as to the legislative power, "yet I am inclined to think, that they are, in the main, just, "with respect to the former as well as the latter; and, under this "impression, I shall lay it down as a rule, "That the state courts "will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated ways.'

Page 324. "Fam even of opinion, that, in every case in which they are not expressly excluded by the future acts of the na"tional legislature, they will, of course, take cognizance of the causes to which those acts may give birth."

But the present case is not one of those which comes within the exceptions of that writer. 1st. The jurisdiction of this crime is not exclusively granted to the union. 2d. It is not prohibited to the states. 3d. Nor, if it is granted to the union, is it a case where a similar authority in the states would be incompatible.

In

In the act of congress, p. 147. "for the punishment of certain 1797. crimes," the murders, or larcenies, there mentioned, are such as may be committed within forts, arsenals, dock-yards, federal district, places ceded by the states to the United States, or upon the high seas, perjuries in their own Courts of justice under any act of congress, forgeries of indents or public securities. In general they are those subjects submitted by the constitution to be legislated upon by them, and made subject to their judicial authority. Congress having exercised their power over many subjects submitted by the constitution, and to some arising under their laws; but never having touched the present subject, of which this state had a pre-existing cognizance, it may be considered as casus omissus by their laws; and until they shall, by some future act, exercise their authority over the subject by designating the crime, prescribing the punishment, and giving to the Courts of the United States exclusive jurisdiction, this Court may, constitutionally, take cognizance of the cause, and punish the offence, by the laws of this state.

Therefore the 11th section of the judiciary act, which gives to the Circuit Court exclusive cognizance of all crimes and offences cognizable under the authority of the United States, may be reasonably supposed not to have contemplated this case, which by no act of congress is designated as a crime, nor has it any appointed punishment.

The prosecution against Henfield, in the Circuit Court, was for a violation of his duty, as a citizen of the United States, in entering on board a French privateer, and cruizing against the subjects of the king of Great Britain, with whom the United States were at peace, under the sanction of a. treaty. This was contrary to the law of nations, to the treaty, and against the onstitution of the United States. This was not a crime resulting from the regulations of an act of congress.

Ravara was a public minister, a consul, and, therefore, the jurisdiction over him by the constitution was expressly to be exercised by the Courts of the United States. Neither of these cases rests upon the principles on which the present case stands, and, therefore, are no authorities.

The 34th section of the judiciary act, p. 112. which says that the laws of the several states, except where the constitution, treaties, or statutes, of the United States shall otherwise direct, shall be regarded as the rules of decision, in trials.at common law, in the Courts of the United States, plainly refers to trials of a civil. nature, according to the course of the common law, and not to the trial of crimes by the rules of the common law.

Upon this comprehensive view of the question, the Court are of opinion, that they are competent to the jurisdiction of this cause, and, therefore, do over-rule the motion that has been made in arrest of judgment, founded on the objection to their want of jurisdiction.

CIRCUIT COURT,

PENNSYLVANIA DISTRICT.

October Term 1805.

Present PATERSON, an Associate Judge of the Supreme Court. PETERS, District Judge.

Thurston versus Koch.

a

TPErzas delivered his opinion at large; with a copy of which HIS case is reported ant. p. 348.; but, I find, that Judge Mr. Condy has obligingly furnished me for publication.

PETERS, Justice. The point in this cause is, whether in a case of double insurance, the policies are to be taken according to priority; that is, whether the second is answerable before the first is exhausted, if the loss is greater than the sum covered by the first? And if the loss is fully covered by the first, whether, if it be paid by the insurers on the first, they can oblige those on the second to contribute, pro rata?

To be respectable abroad, and to facilitate and simplify mercantile business at home, we should have a national, uniform, and generally received, law-merchant. The custom, or practice, of one state differing, perhaps, from that of another, must yield to general and established principles.

There is, however, no custom of merchants, in this, or any other, district of the United States, stated in the case, and we cannot travel out of the statement, in giving our judgment.

I mention as an extraneous fact, of which I have been informed by persons intelligent in business of insurance, that the rule in New-York, where they followed the British practice for a great length of time, was variant from that they now use. The custom in Philadelphia, has been, for a long course of years, to settle losses, where there are double insurances, according to priority

of

of policy in date, without regard to time of individual signature: that is, not to call on the second set of underwriters, if those on the first policy were competent, or had paid the amount of subscription, or loss. In this event, those on the second policy return the premium, retaining one half per cent. If this be so, and I have no reason to doubt, it is one of the very few subjects, in which I have been able to discover a decided and universal custom of merchants

here. It may have originated, when the British rule was more similar to that of many other nations, than it is now, and was at the time of our revolution. It appears to me, that the custom here is agreeable to the general maritime custom and law of Europe, in this particular. The authorities produced in this cause, on the part of the defendant, warrant me, in this opinion. All the European nations, it is true, do not agree. There may not in every detail, be an exact conformity among any considerable number. But, I conceive, that where the greater number of particular laws are coincident in a general principle, this will establish what is called, general law. In the point before us, there are exceptions in the laws of Spain, and those of England, to what seems to be the general principle and rule, among other trading nations. And the arrangements of those two countries, differ from each other.

The law, or custom of merchants in England, was, formerly, more agreeable to the general custom and maritime law of other nations, than it has been decided, in latter times to be. It is contended, that the British authorities, do not shew direct decisions of their courts, on this point; yet, they are sufficient to satisfy me, of what the law there is. It appears to me to be clearly settled, as law, in England, that in cases of double insurances, if all the policies cover the same risques, there shall be a rateable contribution. It was so settled at the period of our independence. It was their law-merchant, which, being part of the common law, was binding on us; and is now engrafted into our maritime code. The cases, before our declaration of independence, clearly shew, that the law was then so settled. And in cases since that declaration, it is recognised and agreed to be the law. Our insurances in that country being still considerable, the rule is yet useful on that account, among others.

In France, agreeably to an ordinance of Lewis XIV. the first policy is to be exhausted, before the second operates, if dated at different times. But different policies, of the same date, are considered as one, and there is a rateable contribution.

In Spain, the date and time of individual subscription are attended to, and insurers are called on, according to priority of subscription, even on the same policy. I have had frequent occasions to recur to Spanish regulations. There is, in most of the Spanish maritime laws and customs, a peculiarity which creates an exception, rather than a rule, on many general principles. VOL IV.

e

I cannot

1805.

1805.

I cannot see, that it will be materially disadvantageous to commerce, to settle this question, in either way, contended for in this cause. It is of most importance, that the point should be clearly decided and settled in one or the other way; that merchants may know, and accommodate their affairs to the decision. This court can, at least, commence the means of final decision.

I believe with Professor Smith, in his "Wealth of Nations," cited in this cause, that distributing the burthen of losses, among the greater number, to prevent the ruin of a few, or of an individual, is most conformable to the principles of insurance, and most conducive to the general prosperity of commerce. The wisdom and experience of the British nation, grown out of their more modern and extended state of commerce, have given additional value to this opinion. Whatever respect (and it is not slight), I may entertain for the laws of other nations, I deem myself bound to follow, what was the established law and custom of merchants in England, at the time of our becoming an independent nation: not because it was the law merely of that country; but because, it was, and is, our law.

There is sufficient evidence in my mind, in the cases produced out of the British books, to this point, to satisfy me of the law and custom there established on this question. I, therefore, conclude, according to the case of Newby v. Reed, (Sir Wm. Bl. Rep. 410.) that "the insured may recover the whole sum; and leave the in"surer to recover a rateable proportion, from other insurers, on "a double policy," and the insured may elect, which set of insurers, or which of the individuals, he will sue, for the amount of actual loss; beyond which he cannot recover, as he can have but one satisfaction.

On the point stated, (the details of which merchants can best adjust) I am of opinion, that the defendant is liable to pay to the plaintiff, a contribution, upon the loss paid by him, as stated. This contribution must be made by all the insurers, on all the policies rateably, as their respective subscriptions bear a proportion to each other, and all of them to the actual ioss. The defendant of course, must pay to the plaintiff his rateable proportion, on these principles, according to the amount of his subscription.

Willing et al. versus The United States.

INCE this case was reported, (ante. p. 374), at February term 1807, the Supreme Court, upon argument, affirmed the judgment of the Circuit Court.