the cases within the criminal or appellate jurisdiction of this court, the case of Marbury and Madison, rejects the clause as unavailing; and if it relate only to cases within their jurisdiction, it does not extend to the case which is now moved for."

Doubtless the judge has the court here in a dilemma; but was it fair to talk of Marbury and Madison, when he had professed a disembarrassment of the question from the effect of precedent.

But again, he says, "on considering this act it cannot be denied, that if it vests any power at all, it is an original power. It is the essential criterion of appellate jurisdiction, that it reserves and corrects the proceedings in a cause already instituted. I quote, says he the very words of the court in the case of Marbury v. Madison."

I perceive that through the whole of the opinion he embarrasses himself with the case of Marbury and Madison; and the argument is, in some degree, ad hominem, that is to the court who had so decided in that case. But I wish to treat them fairly, and to take no advantage of what they had decided in that case, but to see what they ought to decide in this. I turn to the constitution, and the judiciary act itself.

Having done so, I look at the opinion of the court as delivered by chief justice Marshall; and I find it correct, throwing Marbury v. Madison out of the way, which he distinguishes from the case before him, with some astutia affecting to consider it as the case of an appeal. It is not on that ground, I would put it, but consider the court as having pow er under the act of congress, to issue a habeas corpus in the first instance. The clause is, "that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an enquiry into the cause of commitment." The power is concurrent, with judges of the district courts; and not being given to these exclusively in the first instance, the judges of the supreme court, either of them, or a fortiore, the whole of them sitting in bank, have original jurisdiction in this case. For if they have concurrently jurisdiction.

they have original. For the constitution giving the supreme court original, in some, and appellate in all, does not exclude the power of congress to give original, where it must be ap pellate.

But the fact is, that the issuing the writ of habeas corpus, being but incidental to the jurisdiction as to trial, it does not come in view as to jurisdiction, either in the meaning of the constitution or of the act of congress. It is collateral, and sideway to the jurisdiction, whether original or appel. late. A justice of the peace, or a judge of the court of com. mon pleas or in his capacity of a justice of the pleas, may commit or bail for offences not triable before the justice, or before the common pleas. Justice of the peace, or other magistrate of any of the United States, for any crime, or offence, against the United States may arrest, imprison, or bail. And even where "a person is committed by a justice of the su preme, or a judge of a district court, for an offence not punishable with death, if there be no judge of the United States in the district to take the same, it may be taken by any judge of the supreme, or superior court of law of such state." Judiciary act, sec. 33. Yet these judges, or courts could not take jurisdiction of the offence, to try it. It fol lows necessarily from the provision, that each of these authorities must issue the habeas corpus, ad inquirendum, or to see whether the facts alleged amount to capital, before they can say, whether their power is precluded from a liberation.

I am therefore obliged to be with the majority of the court, and to say, that the habeas corpus ought to have issu ed.

Craudson and others, v. Leonard. 4 Cranch, 434.

THIS case involved the doctrine of the conclusiveness of "the sentence of a foreign court of admiralty." It had not before become necessary in any case to decide it; though it

had been argued in the case of Fitzimmons v. the Newport Insurance company. It was decided in favour of the conclusiveness of the sentence, by four judges, Marshal, Cushing, Washington and Johnston, justices, Chase and Livingston dissenting; Todd not being present at the argument gave no opinion. The weight of a decision is proportionably shaken by a want of unanimity. The doctrine had begun to be shaken in the English courts in the case of Lothian v. Henderson, 3 Bos. and Pull. 499, Graham, B. dissenting from the majority of the court in a very able argument against the conclusiveness of the sentence.

The bar would never seem to have acquiesced perfectly. 2 East, 476. it is said, the counsel were proceeding to contend that the sentence of condemnation, admitting it to be pronounced by a competent tribunal, was not conclusive as to the question of neutrality, which was collateral to the question of prize or no prize. But the court said "that after the repeated determinations to. the contrary, it would be nugatory to open that discussion again." The question is, said Lawrence, whether this sentence of condemnation be conclusive evidence that the property insured was British, and consequently that the warranty of its being neutral was not complied with. The argument was attempted to be carried into a wider field than we think it fit now to enter into, since the case of Hughes v. Cornelius, and a long string of authorities which have followed that decision. We must now therefore take it for granted, that, if this sentence were given by a court of competent jurisdiction, it is conclusive upon the point then in judgment." Thus it may be seen that the stare decisis, not principle, was that which governed.

And 5 East, 160. it is said by lord Ellenborough, that, "since the judgment of the house of lords in Lothian v. Henderson, it may now be assumed as the settled doctrine of a court of English law, that all sentences of foreign courts. of competent jurisdiction to decide questions of prize, are to be received here, as conclusive evidence in actions upon policies of insurance, upon every subject immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially."

I do not wonder at English courts holding this doctrine, because having the command of the sea, and capturing, whether justly, or unjustly, I do not say, more than other nations, they have more captures to bring to market, and therefore, it suits them that such doctrine, should prevail, inasmuch as it would lessen the value of their prizes, at an admiralty sale, if there could be a doubt of being able to give a title. Yet their judges say very little, or rather nothing on the reason of the principle, but shelter themselves under the authority of lords, &c.

1 Camp. 418. in the case of Fisher v. Ogle, lord Ellenbo rough observed, with the concurrence of the other judges, "It is by an overstrained comity that these sentences are received as exclusive evidence of the facts which they positively aver, and upon which they specifically profess to be founded." And again, 1 Camp. 429. "I am by no means disposed to extend the comity which has been shown to these sentences of foreign admiralty courts. I shall die like lord Thurlow in the belief, that they ought never to have been admitted. The doctrine in their favour, rests upon an authority in Shower (Hughes v. Cornelius, 2 Show. 232) which does not fully support it, and the practice of receiving them, often leads in its consequences, to the greatest injustice."

This doctrine of conclusiveness, had been adopted impli citly from the English courts, in all, or most of the states, before and since the revolution, without the least examination of the principle.

O imitatores; servum pecus→→→

There was some reason for it before the revolution, because, it hold a doctrine that suited the then colonies, being part of the British empire, and sharing with her in this buccaneer principle, so as finding our account in it. But how it could exist, during the revolutionary war, and since, could have been only from a defect of examination. After the war and during our situation as a neutral nation, the consequences had been felt, and persons insured, had begun to cast themselves about, to provide against the rule, by special clauses in the contract; such as warranted American; but

he proof to be made here. There cannot be a stronger eviPence of the badness of the rule, than the necessity of exceptng it, by a special provision in the contract, to the contrary.

This doctrine was shaken by a decision in the NewYork state, 1805, by the court of errors and appeals, 2 Caines, 217. And the courts of Pennsylvania, although they sometimes appeared, indirectly, to recognize the theory <f the courts of England, had honestly endeavored to escape from the practical operation, which often leads (says lord Ellenborough) to the greatest injustice, until they were involved in the necessity of giving judgment in Dempsey's case.*

* In this case, in the supreme court, I was confined to my chamber, by indisposition, and did not deliver the opinion which I had drawn up; but gave it to the public, not as an opinion drawn up to be delivered, but as an abstract essay, in Poulson's Advertiser of January 6th, 1808, and not with my name; but it is as follows:

On the conclusiveness of a sentence of a foreign Court of Admiralty.

THE effect of a sentence of a foreign Court of Admiralty, as between the assured and assurer, where there has been a warranty by the assured, that the property assured was neutral; but where it has been condemned in a foreign court on the ground of being enemies property, is the question proposed to be examined.

When two nations are at war between themselves, a sense of justice will induce each to avoid injuring an individual who is not of the belligerent nation; or, if a sense of justice does not govern, self-preservation will. For it cannot be the interest of either to injure an individual, lest it provoke the nation to which that individual belongs; and involve it in a war with that power, adding to itself another enemy; and drawing on itself the enmity of the whole community of nations, who will see its own danger in the example. For this reason it becomes the policy of each, to take every precaution against an injury to an individual; and while each is committing depredations on its adversary, to have some power. subordinate of the particular government of each country, to take cognizance of prize, and confine this to the property of the enemy; and to which authority an individual who thinks himself injured may apply; and hence the institution of Courts of Commissioners, or the giving power to Admiralty or other Courts, for the