" vessels employed in carrying, &c." though here, at most, was "only a design of carrying."

The best way of discovering how far arguments, deduced from resolutions of congress, can be applied on this occasion, will be, to consider them, not separately, but conjointly, as forming a system, that existed in force at the time of the transaction.

On the 8th of January 1780, long before the capture of the Endeavour, it was resolved, by congress," that the trials in the "Courts of Admiralty, in cases of capture, be according to the usage of nations, and not by jury." It does not appear that any other material part of the foregoing resolutions in 1775 and 1776, was repealed. Therefore, the powers intended, in those resolutions, to be exercised by the Courts of Admiralty, remained. Only the mode of exercising them was altered. The obligation of any of these resolutions has not been, and will not be, denied. Of course, the exception taken to the resolution of 1775, does not, in any manner, impeach the regularity of the proceedings in this cause.

As to the exception, founded upon these words, in the resolutions of 1776, "near the shores of any of the colonies," (4) it would be a very singular distinction, if vessels, engaged in hostile projects, should be liable to seizure and condemnation, below the mouth of a river or creek, and should gain protection, by entering into it for the very purpose of more effectually carrying them on; especially if it be considered that congress certainly intended the resolutions of 1775, and 1776, to agree and co-operate. They did not undertake to say, that "the shores" of any colony, were the limits of that colony; and they expressly speak, in the 5th resolution of 1775, of captures made "in" a colony.'

The exception taken against both sets of resolutions, states, that they have regard solely to vessels employed in carrying, &c. and that here, at most, was only a design of carrying;" or, in other words, that the offence was not committed, but only intended. (5)

On the other hand, it is set forth by the judge in his decree, that the fixed design of the appellant and his partner, through all the transactions relating to this vessel, was to carry her and her cargo to New-York, then in the possession of the British fleet and army; and that they had obtained a passport from the admiral, who was there, for this purpose; and it appears, from the plea and answer of the appellant, in the Court of Admiralty, and from other parts of the proceedings, that the brig Endeavour had

(4) The libel of Barret and others, against the vessel taken in June 1778, and afterwards condemned, stated, that she was taken "in Jones's creek, and near the mouth thereof, in Kent county." This libel, also, set forth the resolution of congress on the 23d of March 1776, as the foundation of the prosecution.

(5) The intention of supplying an enemy, manifested by such circumstances as in this case, is clearly criminal at common law. Foster, 217.

1788.

been

1788. been purchased at Lewes-Town, brought into Little Duck creek, as far up as Barker's landing, had there received a considerable part of her cargo, and then went down several miles to the place where she was captured. If she was going to New-York, surely she was "employed in carrying supplies to the British army."

This point has been deemed very important, and many ingenious arguments have been offered upon it. One remark may, perhaps, throw some light upon the subject.

Whether the Endeavour was "employed in carrying supplies "to the British army," is a question of fact. This Court is now sitting to correct errors in law, as was allowed under the old 66 government in the last resort, to the king in council." (6) The cause now depending, comes before us, after a removal into the Supreme Court, by a writ of error, upon a general verdict, and a judgment thereon below. Must there not be some great deviation from legal principles, in the method proposed for the deci sion of this business, since it leads to so extraordinary a conclusion, that, instead of being judges to determine what the law is, we are in a case thus circumstanced to become an imperfect jury, for the re-trial of a matter of fact?

The last objection of the appellant's counsel, comprehended in the first principal point, is, "that the legislature of this state, has "directed a particular mode of proceeding, in every such instance "as the present, by an act of assembly, passed on the 20th day of May 1778."

By that act," all provisions and supplies loaden on board any "vessel, or other carriage, in any place or port within the state, to the intent. &c. to be conveyed, &c. to, or from, the enemy, "&c. shall be forfeited, with the craft, &c. carrying the same, to "the use of the captors; and two justices of the peace, of the "county where such capture happens, may adjudge a forfeiture, "and order sale, &c."

Proceedings have been, accordingly, had, at least, in one instance, at New-Castle, in July 1782.

At the time of making this law, the Court of Admiralty was subsisting in this state. Public acts, and dates, may here be material. In less than four months after the resolutions in March 1776, the declaration of independence was made. In less than three months from that time, with the same spirit of federalism, that has, on so many occasions, directed the conduct of this state, (7) our constitution was framed, candidly recognizing the authority of "resolutions of congress," and, among other things, requiring a judge of admiralty." A judge was soon after appointed. It is not to be supposed, that in the long interval, between November 1775, when congress recommended the estab

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(6) Words of the act of assembly establishing the Court of Appeals. (7) The constitution was agreed to, the 10th of September 1776.

lishment

lishment of Courts, for condemnation of captures, taken in any 1788. part of united America, as well as elsewhere, till May 1778, when this act of assembly was made, there was no Court here, vested with correspondent powers. The Court of Admiralty had cognizance in such cases. Principles of law, and the circumstances of our situation, required that it should have cognizance.

In that act are no words that positively, or by necessary implication, take away any authority, then existing in another tribunal. The general assembly might think it adviseable, in aid of that authority, to diffuse the jurisdiction, given by the act, throughout every part of the state, among the justices of the peace, as the offences might be numerous, and it would, sometimes, be exercised upon occasions of very trifling moment. The law is clear, that where a Court has jurisdiction in certain cases, and afterwards jurisdiction therein is given to another Court, this provision is only cumulative, not privative; it does not abrogate the authority of the firs; but both have a concurrent jurisdiction. Black. 89, 90.

There was another question, moved in the course of argument, that seems not properly referable to either of the two principal points before mentioned. Several cases were produced to show, that "it is necessary in every suit in the Admiralty, to allege in "the libel, that the cause of action arose upon the high seas.'

One distinction solves all difficulties on that question. In causes civil and marine, such an allegation may be necessary; in causes of prize, it is not. Douglas.

Thus far, induced by particuliar considerations, have we pur sued the way marked out by the appellant's counsel, for examining this cause, of much importance, and of the first impression, among us. Where does it begin, and to what does it lead? From a supposed right, in a Court of common law, of scrutinizing, in an action of trover, a decree of the Admiralty, in a cause of prize, after execution; to a power of reversing it in effect.

Not a case has been produced, by the learned counsel, to support this doctrine. It has been said, indeed, that "the capture, "being within the body of a county, is properly triable in a Court of common law, especially where only citizens are concerned."

There is no difference of this kind, upon captures as prize. It is well known with what vigilance the judges in Westminster Hall, have watched the admiralty jurisdiction, and with what vigour they have checked it, when unduly exercised. Yet, for this purpose, they never availed themselves of the circumstances now suggested. Besides, there are causes, triable by jury, that originate out of the county, and out of the state, in which the trial is had. Where, then, is their power, in causes of prize, to stop? Is it likely that more respect will be paid to the sentence of another Court of Admiralty, than to that of our own? And ought not the

complaint

1788. complaint of a stranger, a neutral, a friend, to be as much regarded in our Courts of justice, as that of an inhabitant?

If once such a contest shall be opened, between the jurisdiction of admiralty Courts of prize, and that of common law Courts, Courts founded upon different principles, and governed by differ ent codes, it would be almost impossible to describe the confusions, and mischiefs, that must inevitably follow.

The evil will appear to be still increased, if it be considered that this contest would be carried on, by a number of common law Courts, in several states, against an admiralty jurisdiction, necessarily blended with the very nature of their federal union. (8) The law delights in certainty and quiet, because without these, there can be no liberty.

Much has been said in praise of trial by jury, and as much against admiralty Courts, " in each of which," it has been alleged, a single judge presides, who may draw actions into his juris"diction, by giving them what name he chuses, and decree in "them as he pleases."

If any citizen of United America, does not value trial by jury, at its justly high worth, he is incapable of duly estimating any of his political rights. But if, by the constitution and laws of our country, a jurisdiction is to be exercised in another manner, it is our duty to observe the constitution and laws, without perplexing ourselves by reflections on the excellency of trial by jury.

Congress, after the experience of several years, found it requisite to resolve, that trials in the admiralty Courts, in cases of captures, should not be by jury. And it is to be noticed, that the act of assembly, under which, it is contended, by the appellant's counsel, that this cause ought to have been tried, gives neither trial by jury, nor an appeal. (9)

Our constitution requires, to use its own words, "the ap"pointment of a judge of admiralty." Our laws acknowledge his authority. Such a jurisdiction was established, throughout the British parts of this continent, before the revolution, and exists in every christian maritime state and kingdom in Europe. The ease, the cautions, the dispatch, under this jurisdiction, are attended, in time of war, with great benefits to captors, claimants, and all parties concerned.

(8) This is evident from the confederation: and, before that was completely ratified, commissions to vessels of war, and instructions, were issued by congress, bonds were given to them, and appeals were reserved to them. These powers rested upon the same principles with those, by which 'congress was authorised to begin, and prosecute, the late war throughout its various operations. To question the validity of those powers, would seem, plainly, to impeach the justice of those operations.

(9) There was a condemnation, without trial by jury, of the vessel taken by Philip Barret and others, in 1778.

Admitting

Admitting the government of a free state, to be so degraded, 1788. that the "judge of the admiralty appointed by the joint ballots of "the president and general assembly," as he is in this state, wants the integrity and knowledge he ought to possess, yet his irregu larities are subjected to an immediate and effectual correction: for, by the resolves of congress, an appeal is given to that body, or to the persons by them delegated.

When, to the care of that assembly, under Providence, the inhabitants of these states committed their liberties, lives, and fortunes, surely there is no impropriety in supposing, that they might safely have been trusted to decide on such a case as the property of the Endeavour and her cargo. Yet this plain and easy method of obtaining redress, if any injury had been done, a method agreed to, upon the maturest deliberation, by United America, has been declined, and the Courts of common law, in this state, are to be engaged in trying causes of prize.

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Let us now attend to the sentiments of judges, (10) eminently distinguished for their abilities and learning upon this subject. "The admiralty has jurisdiction, not only of the question, prize, or no prize, but of all its consequences: this jurisdiction "belongs to the admiralty, totally and exclusively; and the "Courts of common law have no jurisdiction at all, in such questions."

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Though for taking a ship on the high seas, trespass would "lie, at common law, yet, when taken as a prize, though taken "wrongfully, though it were acquitted, and though there were ແ no colour for the taking, the judge of the admiralty, was judge "of the damages and costs, as well as of the principal matter; "and if such action should be brought at common law, on plea "of not guilty, the plaintiff could not recover."

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"It is true, the sentence of acquittal, in the admiralty, is conclusive, that the ship was not lawful prize: but it is evidence of a thing, which a Court of common law cannot inquire into. If "the original taking be not a trespass cognizable at common law, "the sentence of the admiralty Court cannot give a jurisdiction to a Court of common law which it had not before." Douglas. "The validity of a sentence, by a Court of admiralty, in a "cause of prize, is not determinable by the common law." Saunders, Redley, and Dalbow v. Egglesfield and Whitall.

Though the superior Courts of common law, so strictly superintend the conduct of the admiralty, yet, "there is not one in"stance where a prohibition was ever granted in a cause of "prize." The case of Brown and Burton v. Franklyn, in the time of William the third, is remarkable in this respect. On motion for a prohibition, the plaintiffs suggested, that the defendant,

(10) Hale, Holt, Lee, Mansfield, Buller, with the unanimous assent of their brethren, the other judges.

VOL. IV.

being