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who were carried to Spain, except one or two of the least considerable, and also took out of her two cannon, small arms, powder, ball, two coils of cordage, and some other articles. They then put a person on board her, as prizemaster, and men from each of the brigs, with written orders, dated the 7th of September 1779, and signed by them all, directing him to "take charge of her as prize to the brigs Achilles, Patty, and Hibernia; carry her into Delaware, Chesapeake, Egg Harbour, or Boston, but to get her if possible into Delaware, Chesapeake, or Egg Harbour, for fear of the sloop Aro's falling in with her, begging him to stand to the southward that night, and strive hard for Philadelphia. These orders were signed on board the brig, the commander of which had directed the examinations before mentioned on board the Betsey. The Betsey sailed off close by the wind to the southward, was afterwards retaken, carried into New York, and restored to the former

owners.

On the 17th of September 1779, congress resolved, "that in consideration of the distinguished merit of colonel Silas Talbot, a commission of captain in the navy be given him, and that the marine committee be directed to provide a proper vessel for him as soon as possible." On the first of March, 1780, congress resolved, "that any interest the United States may have in the capture of the Betsey, by the sloop Argo, captain Silas Talbot, be relinquished to the said captain, and the officers, seamen and mariners, under his command at the time of the capture." On the 13th of March, 1780, captain Talbot, qui tam, &c. filed his bill in the court of admiralty for this state, against the three brigs, their owners, and commanders. Process was issued accordingly. On the 27th, the owners came severally before the court, and entered into stipulations for the performance of the decree. August 29th, a plea to the jurisdiction, filed, "for that in cases of damages to be assessed or recovered to make satisfaction for a wrong or trespass to person or property, the prosecutions ought to be in courts of common law." Replication," that the cause of action was within the jurisdiction of the admiralty." Plea dismissed, respondeant

ouster awarded, and plea of not guilty filed. July 19th, 1783, decree, that the libellants have and recover of the respondents twelve thousand seven hundred and ninety-one pounds five shillings, with costs, and on the 22d the respondents appeal.

DECISION ON THE APPEAL.

There are two principal questions concerning jurisdiction in this cause.

First, Whether the court of admiralty for this state had jurisdiction?

Second, Whether this court has jurisdiction?

The first has been subdivided into these secondary questions:

First, Could the court of admiralty for this state take cognisance, as an instance court, supposing this cause not to be a cause of prize?

Second, Did that court take cognisance as a prize court?

It is acknowledged, by the counsel for the appellants, that if this is not a cause of prize, the court of admiralty might take cognisance as an instance court, it being now settled that damages may be assessed in the admiralty, if it was not for an objection arising from the act of assembly for regulating and establishing admiralty jurisdiction in this state. By that act the judge of the admiralty shall “ have cognisance of all controversies, suits and pleas of maritime jurisdiction, not cognisable at the common law, and thereupon shall decree as the maritime law, the law of nations, and the laws of this commonwealth shall require.” The objection made is, that the present controversy is cognisable at common law.

It is manifest from this act, that in framing it, the legislature took into consideration the English statutes relating to things done upon the high seas, and particularly the statutes of the thirteenth of Richard the Second, ch. 3. and 5. and the second of Henry the Fourth, chap. 11. by which, "admirals and their deputies are prohibited from meddling with any thing done within the realm of England, but only with things done

upon the seas, according to that which hath been duly used in the time of Edward the Third," and it is “declared, that the court of the admiral hath no manner of conusance, power or jurisdiction of any contract, plea, or quarrel, or of any other thing done or rising within the bodies of counties, except in cases of death or mayhem done in great ships being in the main stream of rivers beneath the points* of the same.”

It is clear, even from these cautions against encroachments of the admiralty upon the courts of common law, and from the well known dispute, mentioned in Coke's fourth institute, that the jurisdiction of that court, as to things done upon the sea,” is acknowledged to be proper; and, that as to them, the jurisdiction of the common law courts was not proper, but only acquired by a fiction, in supposing them to have been done in some county, when they were not. The common law courts had a great advantage. They used it. There was no superior court to prohibit them. Upon certain suggestions which they knew to be both false and impossible, they assumed jurisdiction; and would not permit evident truth to be regarded. With such laboured ingenuity has the jurisdiction of common law courts, as to acts upon the high sea been sustained, to the great mortification of sir Thomas Rydlye, and other learned civilians, the former with much commendation from the rest, very gravely undertaking to prove, that a ship could not sail in Cheapside in the city of London,ll the place usually assigned in suggestions, as the scene of naval transactions.

• Doctor Zouch, in his “ jurisdiction of the admiralty," p. 85, urges strong reasons against this construction; and in Owen's Reporis, p. 122, it is said by the court, that the statute of the 15th of Richard the 2d, is misprinted; for the translator mistook bridges for points, that is to say, the land's end.

4 Inst. 134 to 143. 3 Blacket. 43, 106, et Fortescue De laudibus, 67 et in notis.

| Fictio est in re certa, ejus quod est possibile, adversus veritatem, pro veri tate a jure facta assumptio. Doctor Godolphin's View of Admiralty Jurisdicrion, p. 84.

|| Zouch, p. 131, God. p. 105. 3 Blackstone, 107.

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Yet notwithstanding these statutes, mariners have in Eng' land been allowed to sue for wages in the admiralty, upon contracts made there within the body of a county, “ against the statute expressly," as was held by the judges, when that great man, lord chief justice Holt, presided in the king's bench.* The reasons were, that the remedy was easier, because they could join in the suit, and better, because the ship would be answerable.

In the present case, the owners, masters and sailors, of the three brigs could not be jointly sued at common law. If they could not, what a multiplicity of actions must be brought! Supposing the owners, commander, and men of the Argo could join in a suit at common law, one of them might destroy the action by a release.f The vessels are not liable in the same manner at common law, as they are in a court of admiralty.

If the court of admiralty for this state cannot take cognisance of things which courts of common law may draw into their cognisance, it seems to have been nugatory in the legislature to have given that court any other jurisdiction than in cases of prize; for, even in the case of wages, justly a favourite object of admiralty jurisdiction, mariners may sue for them at common law.

It appears to have been the intention of the legislature, that justice should be done in the easiest and best manner; and that by the words “ not cognisable at common law,” should be understood, “ not properly cognisable at common law.”

The next secondary question is so connected with the definition of a cause of prize, and the treating of that subject introduces so many considerations concerning relative circumstances in these states and the law of nations, and these again are so combined with inquiries as to the jurisdiction of this court, that they cannot be conveniently, at least not easily, separated. We will at present therefore, pass to the second principal question, reserving till that shall be discussed,

what peculiarly relates to the question we now leave.

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This state has all the powers of independent sovereignty, by the declaration of independence on the 4th of July 1776, except what were resigned by the subsequent confederation, dated the 9th of July, 1778, but not completed by final ratification, until the 1st of March 1781.

By the confederation, the United States are vested, among other things, with the “ sole and exclusive power of establishing rules for deciding in all cases, what captures on land and water shall be legal, and in what manner prizes taken by land or naval forces, in the service of the United States, shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of captures.

Such a court was established by the style of “ the court of appeals in cases of capture.”* By the commission, the judges are “to hear, try and determine all appeals from the courts of admiralty in the states respectively, in cases of capture, which now are, or hereafter

may

be duly entered and made in the states."

It was resolved by congress, May 24th 1780, “ that all matters, respecting appeals in cases of capture, now depending before congress, or the commissioners of appeals, consisting of members of congress, be referred to the newly erected court of appeals, to be there adjudged and determined according to law.”

It is necessary to inquire what is the reasonable and legal meaning of the words of the confederation, and of congress in their several acts relative to this subject, for that is the true meaning.

Thus we shall be led into a construction, by which the positive words may be properly and justly modified.

What are the foundations of such a construction here?
First, The counsel for the respondent are themselves com-

any of

a

* Acts of congress, May 24, 1780. † Acts of congress, February 2, 1780.

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