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be said in Mr. Hunt's praise that he made a re- what is a table of the like kind with those specified port. He was the only committee-man who suc- in the statute, according to its true intent and meanceeded even so far. Mr. Butler was prevented by ing, there are two decisions of this court which the absence of his colleagues and his inability to seem to settle the matter beyond all controversy. confer with them, although his report was otherwise They are, Commonwealth v. Wyatt, 6 Rand. 694, deready. None of the other committees had heard cided in 1828; and Huft's case, 14 Gratt. 648, defrom their chairmen. Mr. Evarts, strange to re- cided in 1858. In Wyatt's case it was unanimously late, not only made no report, but was not even pres- | held by the late general court, in an opinion delivent, and sent no excuse. Of the papers of Messrs. ered by Daniels, J., that 'the distinctive feature in Bispham and Hyde, we can only say that while the character of the games called A B C and E O Mr. Hyde's subject was well chosen, it seems to us and faro bank, is that the chances of the game are unthat Mr. Bispham's subject was neither of import- equal, all other things being equal, and those uneance nor of interest sufficient for the occasion. qual chances are in favor of the exhibitor of the games
or tables. If other games resemble those standard It is evident that the association is not a games in that distinctive feature, they come within great success, and is not likely to be. Why is the terms of the 17th section of the Gaming Act it not? Is it because lawyers are not naturally (corresponding with the 1st section of the present gregarious, or have no interest in these matters, Gaming Act), being 'gaming tables of the same or or are intent on their own enrichment and ag- like kind,' and are liable to the penalties denounced grandizement; or is it because of some fault of against those standard games, whatever may be the management ? Every other class of men can hold denomination of those other games, and whether successful conventions — clergymen, physicians, played with cards, dice, or in any other manner.' dentists, manufacturers, publishers, strong-minded In Huff's case it was unanimously held by this court, women, Concord philosophers, and fanatics of every in an opinion delivered by Allen, P., that 'an indescription. The “masonic order” will travel a dictment for gaming under the 1st section of chapthousand miles for the privilege of pranking about ter 198 of the Code (corresponding with the 1st secthe streets of Chicago and tumbling down in a sun- tion of the Gaming Act in the present Code), must stroke. But it seems impossible to persuade a hun-charge the playing of one of the games specified; dred lawyers to meet in council. We are no better or it must show by averment that the gaming off so far as our own State Bar Association is con-charged is of the like kind as those specified — that cerned. We do not believe that lawyers are averse is, that the chances of the game are unequal, all to the counsel and companionship of their profes- other things being equal.' These two cases clearly sional brethren. We know that they are the most show that the game proved to have been played in harmonious and sociable of all classes of men. We this case was not a game of the like kind with any do not think them particularly selfish. Therefore of those specified in the statute, as it was clearly we are fain to suspect that the cause of this state of not one of the games so specified.” In Stith v. things is in the management, but wherein we do not State, 13 Ark. 680, it was held by the Supreme feel called upon just now to offer a conjecture. It Court of that State that the owner or occupant of a would seem obvious, however, that it is better to house, etc., cannot be indicted under the 4th secselect for chairmen of committees men who are able tion of the Gaming Act for permitting poker or any and willing to do something, like Messrs. Hunt and of the small games of cards mentioned in the 8th Butler, than to put great names on the programme
section of the Act to be played in his house, etc., and get no response.
but only for suffering some of the games, tables,
cards, etc., embraced in the previous sections to be Our correspondents ask us a good many questions played, etc., therein. The court said: “An attenwhich we cannot answer. Now we propose for once tive perusal of the statute makes the conclusion alto give them some questions. If Dr. Buchanan has most irresistible that the first seven sections are incommitted suicide, can his bail be held ? Ordina-tended to relate exclusively to the banking games, rily, death of the principal releases the bail, but whether called by the names specified or by any new how is it when the principal has brought about his
name or device. They are usually exhibited by perown default by a voluntary death ? Again : if a sons whose occupation it is to prey upon the comrescue is attempted, and the sheriff's posse is over- munity, and who are therefore peculiarly obnoxious powered, has the sheriff a right to kill the prisoner, to the laws, which design also to punish with equal as is reported to have been done recently in severity those who allow them to be exhibited in Georgia?
their houses." In Kennon v. King, 2 Mont. 437, the
court held that poker was a game of chance, and NOTES OF CASES.
they would take judicial notice of it.
held that the game of poker, or draw poker, is In Smith v. Schooner “J. C. King," U. S. District not a game of the like kind with faro, keno, etc., Court, 10 Pitts. Leg. Jour. 274, it was held that a and does not come within the meaning of the stat- seaman upon a schooner in the harbor of Frankfort, ute against keeping tables for such games or "tables Michigan, where she was towed to receive a cargo of the like kind.” The court said: “In regard to of lumber, cannot refuse to work on Sunday in
loading the schooner where the towing vessel is not several months.” In the absence of
condition able to enter the harbor by reason of an insufficiency against change of occupation, we should say this of water, but is lying outside in the lake awaiting limitation of the vacancy to nights, Saturdays, and the schooner and is in a place of danger. Where Sundays, is wrong, for the insurers must have conthe master of the schooner was of opinion that it templated the usual vacancy for several months was necessary for the safety of the towing vessel during vacation. But the length of the vacancy that the loading of the schooner (begun on Friday) here probably takes the case out of that rule, for the should be completed on Sunday, and ordered the building was unoccupied even within its customary work to be done, it was the duty of the crew to use as a school-house. In Whitney v. Black River obey, and a seaman refusing to work on Sunday was Ins. Co., 72 N. Y. 117; S. C., 28 Am. Rep. 116, it rightfully expelled from the schooner and forfeited was held that the temporary discontinuance of a his wages for his disobedience. The court said: saw-mill, on account of low water, diminished cus“I am satisfied from all the evidence, that with tom, or derangement of machinery, did not amount reference to the situation of the Davidson, there to a breach of the condition against vacancy. was reasonable necessity for the Sunday labor which is to be construed in view of the character and sitthe libellant was called upon to perform. It was, uation of the property insured, and the contingenhowever, for the master of the King, under the cies affecting its use, to which this and other propthen existing circumstances, to determine whether erty of like character, similarly situated, is subject." the work of loading the schooners was necessary for “Take the case of the insurance of a church buildthe safety of the Davidson, and obedience to his ing, school-house, or cider-mill. Would the fact orders was the plain duty of the libellant. It was that the church was closed for six days consecutively not for him to set up his judgment against that of each week be a violation of the condition in questhe master. That it was Sunday was no excuse for tion, or would the school-house in vacation time, or his refusal to perform the duty required of him the cider-mill when no apples were to be had, be (The Richard Matt, 1 Biss. 440), and I am of opinion without the protection of the policy ?” that the master of the King had a clear right to discharge the libellant for his disobedience. Had these four rebellious seamen been permitted to remain on
E have Leslie v. Mackie, 21 Alb. L. J. 425.
cape from restraint is an instinctive impulse. We
see it in the smallest children. Man but obeys his American Insurance Co. v. Foster, 92 Ill. 334, is a natural promptings in breaking jail. Why should curious case of vacancy within the meaning of an society punish him for it? Why should an officer insurance policy. The insurance was on premises of justice be justified in pounding to a jelly or in described as a school-house. There was the usual shooting to death an escaping prisoner, charged condition against vacancy. The school was discon- with felony, if he cannot otherwise prevail on him tinued, and the building was subsequently occupied to stay? Why may not society just as logically as a dwelling, until April, and was then vacant un- punish him for not having voluntarily given himself til the 14th of October, when it was burned, while up to justice, as for trying to get away when justice unoccupied. It was held that the insurance was has overtaken him ? If a man cruelly whips a runforfeited. The court said: “It is, however, con- away horsc, or tortures a squirrel recaptured after tended that as the building was insured as a school- escape from his revolving cage, or a runaway dog house, and the company knew it was to be so used, which sees preparations for putting him to churn, it may be inferred that it was intended to be vacant Mr. Bergh will be on his track very quickly. Why and unoccupied as common public school-houses punish a man for himself obeying the same instincts? usually are in vacation; that all know that the com- It may be said, because he knows better than to esmon public school-houses of the country are not cape. We should rather say, he knows better than continuously occupied, and it must be inferred that to stay to be caught or punished. occupancy of that character was intended. If such The foregoing may sound like a mid-summer jest had been the intention of the parties, they would to old lawyers, but we are deadly serious. We have no doubt have so written the condition. And the good backing, too. Dr. Wharton says, 2 Crim. Law, bare reading of the language repels such an infer- $ 1678, note : “Whether, in a humane jurispru
The language requires a continuous and un- dence, the unresisted escape of prisoners from cusinterrupted occupancy, at least of the character usual tody is a punishable offense, may well be doubted. to houses occupied for schools. It may be and proba- The later Roman common law holds that it is not. bly is true, that there being no person in the build- The law of freedom, so argue eminent jurists, is ing of nights and Saturdays and Sundays would not natural; the instinct for freedom is irrepressible; if amount to a breach of the condition and avoid the the law determines to restrain this freedom, it must policy, as such is the usual manner of occupying do so by adequate means; and it cannot be considschool-houses. But the most strained construction ered an offense to break through restraint when no cannot go beyond that, so as to hold that it need restraint is imposed. Undoubtedly it is a high not be occupied as a school or as a residence for | phase of Socratic heroism for a man condemned to death or imprisonment, to walk back, when let loose, comfort, however, to know that if the jail takes fire to be executed or imprisoned. But the law does he is not bound to stay and be burned to death; 2 not undertake to establish Socratic heroism by in- Whart. Crim. Law, $ 1676; and that he may go to dictment. It would not be good for society that a necessary, in the yard, at night to attend a call of the natural instinct for self-preservation should be nature, if there are no accommodations in the jail. made to give way to so romantic a sentiment as is Pattridge v. Emmerson, 9 Mass. 122. But he cannot here invoked; and it is a logical contradiction to go for this purpose to the yard unless there is a say that the scaffold and the cell are to be used to necessary in it. McLellan v. Dalton, 10 id. 191. prove that the scaffold and the cell are of no use. The two last were cases of imprisonment on civil If men voluntarily submit to punishment, then com- process. pulsory punishment is a wrong. Besides this, a But he is bound to stay in jail even if he is innojailer may argue that if we hold that a prisoner is cent. So held in State v. Lewis, 19 Kans. 260; S. under bonds as much when he is let loose as when C., 27 Am. Rep. 113. The prisoner, awaiting trial he is locked up, there is no reason for over-careful- on a criminal charge, escaped, and being rearrested, hess in locking up. Following these views, the con- was tried and acquitted of that charge. Then they clusion has been reached that an unresisted escape tried him for escape, and held that he could not is not per se an indictable offense, and this view has plead his acquittal of the main charge as a defense. been adopted by all modern German codes. The “He escaped before conviction,'” say the court. English decisions on this point may be too firmly “When a party is in legal custody, and commits an settled to be now shaken; but considerations such escape, we do not think that it depends upon some as those which have been mentioned may not be future contingency whether such an escape is an without their use in adjusting the punishment on offense or not.” Perhaps so, if you try him for the convictions for unresisted escapes."
escape first, but if it is first demonstrated that he is It seems to us more reasonable to reward a pris- | innocent of the main charge, and consequently had oner for staying quietly and obediently in jail, as a legal right to go free, why punish him for going some States now do, than to punish him for running free without awaiting the legal demonstration ? In away. If it is cruel to punish a man for breaking People v. Washburn, 10 Johns. 160, the prisoner was jail, what shall we say of punishing his wife for aid held not indictable for aiding the escape of one ining him?
dicted “on suspicion of having been accessary to The law is guilty of cruelty quite worthy of the the breaking” of a certain house, “with intent to inquisition in this regard. For example, an impris-commit a felony,” because no distinct felony was oned convict went by permission of his keeper thus charged. But according to the Kansas court about the land connected with the jail, went to the escaping prisoner must have waited to have the market and brought back provisions for the inmates indictment quashed. of the jail, cooked food for them in the kitchen of And finally, to cap the climax of absurdity, the the dwelling-house attached to it, went to the adja- law holds that a prisoner has escaped when he has cent barn and there fed and milked the cow, and not actually escaped, but has the means of escape, from the barn departed and left the State. Held, a as where, on civil process, the sheriff committed a criminal escape. Riley v. State, 16 Conn. 47. What jailer to his own jail, of which he continued to hold a cat-and-mouse-play doctrine is this ! Even if the the keys, but where he remained. Steere v. Field, 2 jail is so unhealthful and filthy as to endanger his Mass. 486. Under this doctrine St. Peter would life, he is punishable for breaking out.
have been indictable for escape, although he did not Daois, 14 Nev. 439. “The necessity, to excuse," offer to go, and assured the jailor, “we are all here." say the court, “must be real and urgent, and not So in this case the law holds the prisoner to blame created by the fault or carelessness of him who for not following the instincts of nature, and availpleads it.” He should have “exhausted the lawful ing himself of the opportunity to set himself free. means of relief in his power before attempting the course pursued. It was not shown or claimed that LIMITED LIABILITY OF SHIP-OWNERS. he had ever complained to the sheriff or the board of county commissioners, or that he had ever en
I. deavored to obtain relief by any lawful means." Well , suppose he had complained, and his com
IE large number of marine disasters at sea, in THE
waters near our coast and in our harbors, during plaints had not been heeded, he could not help him- the present year, has induced frequent reference to the self. So held in Stuart v. Board of Supervisors, 83 United States statute limiting the liability of shipIll. 341; S. C., 25 Am. Rep. 397; People v. Same,
owners in such cases. Act March 3, 1851, vol. 9, p. 635, 84 III. 303; S. C., 25 Am. Rep. 461. In these cases
SS 1, 3, 4, 5, 7; U. S. R. S., SS 4:282-4286, 4289. A review
of the decisions in this country and in England, on there was a disclosure of frightful filth and unhealth
some of the questions that have arisen under this and fulness, but the Court of Chancery in the first case similar statutes, may not be unprofitable to the prosaid the prisoner had a remedy at law, and they fession. would not enjoin the use of the jail; and in the
By the civil law, the owner of a vessel, or exercitor, latter the court of law said that they could not com
was personally bound for all the acts of the master, as
well ex delicto as ex contractu, falling within the range pel the supervisors to provide a suitable jail, so
of his authority as master. If there were several long as they provided any. So the prisoner had to exercitors, each was bound in solide for the full amount stay until the bugs should carry him out. It is a of the obligations of the master arising e.r contractu; but for obligations ex delicto each was bound only for maritime commerce of a country, in consequence of his part, in proportion to the interest he had in the the indefinite responsibility which the ancient rule ship. The Rebecca, Ware, 194, 195.
attached upon them. It was a measure evidently of But Judge Ware was of opinion that so early as the policy, and established by countries for the encouragecompilation of the Consolato del Mare, which embodied ment of their own maritime interests." The court or became the maritime law of the Mediterranean held that it was a law as to British ships but not as to powers, the principle was established that ship-owners foreign ships, nor for foreign owners, and that therewere not liable either for the contracts or torts of the fore the owners of the Carl Johan were not entitled to master, beyond their interest in the vessel. Ware, 196. its benefits.
And by the end of the seventeenth century that In the reference to the case in 3 Hagg. 186, the deprinciple seems to have been so generally adopted by cision is stated to have been put upon the different the maritime nations of Continental Europe, as to be ground, "that with reference to foreign vessels, the fairly considered a part of their general maritime law. act only applied in cases where the advantages and Machlachlan on Shipping, 110; Ware, 196–198. Whether disadvantages of such a rule were common to them and it is now modified by legislation, and if so, to what ex- British vessels; that if all States adopted the same tent, we have not attempted to ascertain.
rule there would be no difficulty, but that no such But this principle was never adopted in England general mutuality was alleged; that if the law of until established by act of Parliament; and in the Sweden adopted such a rule, it would apply to both absence of any legislation on the subject, it was never countries, but that Sweden could not claim the prodoubted that the responsibility of the ship-owner was tection of that statute without affording a similar proco-extensive with the loss sustained.
tection to British subjects in similar cases." The first act of Parliament on the subject was passed Perhaps each of these reports is partially correct; and in 1734 (7 Geo. II, ch. 15), and limited the liability of Lord Stowell may have put his decision on the ground the owner to the value of the vessel and freight in case first stated, with the proviso that if it had been shown of embezzlement, etc., of the goods and merchandise that Sweden had enacted and applied a similar law in on board, “or for any act, matter or thing, damage or favor of British ships, he would have allowed the Carl forfeiture done, occasioned or incurred” by the mas- Johan the benefit of the act. ter or mariners, without the privity and knowledge of But it will be seen hereafter that Dr. Lushington the owners.
expressly repudiated this latter doctrine, in a case Further acts were passed for the benefit of ship- where the question was directly raised, and held that owners in 1786 (26 Geo. III, ch. 86), and in 1813 (53 Geo. the court could not administer the statute on the prinIII, ch. 159); and these three acts were in force at the ciple of reciprocity, without an act of Parliament or a time of the passage of the act of Congress in 1851. treaty.
They were subsequently repealed, after the passage The case of the Carl Johan has been criticised on the of the Merchant Shipping Act, 1854 (17 and 18 Vict., ground that by a general clause, the act 53 Geo. III, ch. 104), which was amended in 1862 by act 25 and 26 ch. 159, applied only to registered British ships; as to Vict., ch. 63, $ 54.
which see the remarks of Vice-Chancellor Wood, 4 The courts of the United States, from the earliest Kay & Johns. 378. period down to the passage of the act of 1851, both in Cope v. Doherty (1858), 4 Kay & Johns. 367, arose out admiralty and common-law causes, while fully recog- of a collision between two American ships on the high nizing the limited liability allowed in Continental seas. Proceedings had been commenced against tho Europe, refused to admit it here, and held the ship- plaintiffs' vessel in admiralty, p. 381. Thereupon they owner personally for the full amount of the damage filed their bill in chancery, as allowed by the British done, without regard to the value of his interest in the statute, admitting their liability for the collision, but vessel. Del Col v, Arnold, 3 Dall. 333; The Amiable claiming to have it limited to the value of their ship Nancy, 1 Paine, 111, 118; Pope v. Nickerson, 3 Story, and its freight. Several of the defendants demurred 465, 480, 492; Hale v. The Washington Ins. Co., 2 id. to the bill, aud some of the defendants, who demurred, 176; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. were British subjects. 344, 435.
Vice-Chancellor Sir W. Page Wood said: “In conTherefore in all cases to which the law of this country struing any act of the Legislature, the verbal construcapplies, the ship-owner can only exonerate himself tion of the particular section in question, if it be plain from liability, in the cases mentioned in the statutes, and simple, must govern the court in arriving at its by bringing himself within its terms.
conclusion. If there be any degree of doubt or diffiThe United States statute is not expressly made culty upon the wording of the particular section in applicable to foreign vessels. By the terms of the question, the court is entitled to look, first at the cirEnglish act of 1862, “the owners of any ship, whether cumstances attending the passage of the act, next at British or foreign," are entitled to its benefit.
the preamble, so far as it affords any indication which Under the earlier acts, which did not contain this may serve as a key to the interpretation of the act, and provision, the question was much discussed, in what then, I may add, to the whole purport and scope of the cases, if any, the owners of foreign vessels could take act, to be collected from its various clauses, other than advantage of the law. The opinions and arguments the particular clause, the meaning of which is in of the judges will be best given in their own words. dispute.
The case of The Carl Johan, in 1821, before Lord “Now as regards the construction of the particular Stowell, cited 1 Hagg. 113; 3 id. 186, was a case of col- section here in question, I apprehend there can be no lision off the coast of Norfolk, between a Swedish ves- doubt, that if we were simply dealing with au act of sel, the Carl Johan, and a British ship. The Carl Johan our own Legislature, relating to shipping, there would was adjudged in fault, and the owners claimed tho be a clear presumption a priori that the act referred benefit of the act of 53 Geo. III, ch. 159.
simply to the ships of our own country, it being the According to the citation in 1 Hagg. 113, where the plain and obvious rule, in construing the enactments case was cited by counsel, before Lord Stowell himself, of any Legislature, that the Legislature of each indeafter alluding to the ancient rule of full responsibility pendent country must be supposed to deal with those of the ship-owners, he said: “But the avowed purpose subject-matters which are within its own control and of the relaxation of this rule of law was to protect the jurisdiction. As Dr. Lushington expresses it, in the interests of those engaged in the mercantile shipping case of The Zollverein, 2 Jur. (N. S.) 429, ‘in looking to of the State, and to remove the terrors which would an act of Parliament with reference to such a question otherwise discourage people from embarking in the ' as I am now discussing, viz., as to whether it is in
tended to apply to foreigners or not, I should, in concerning the form of the procedure with regard to endeavoring to ascertain the construction of the act, the substance of the proceeding, it has no application always bear in mind the power of the British Legisla- whatever. And clearly an act which limits the damture; for it is never to be presumed, unless the words ages to which the ship-owner is to be liable, under are so clear that there can by no possibility be a mis- circumstances like the present, deals with the subtake, that the British Legislature exceeded that power, stance and not the form of the procedure." which according to the law of the whole world prop- The opinion concludes: “I have not commented erly belonged to it. The power of this country is to upon what was alleged in the argument in support of legislate for its own subjects all over the world and as the bill, that the American law is identical with our to foreigners within its jurisdiction, but no further. own upon the point in question, because that is not Prima facie, therefore, it would not be the true con- averred upon the bill, and not being averred, I cannot struction of the clause presented for my consideration take coguizance of it. If that were averred and that it is applicable to foreign ships on the high seas - proved, a case of a different description might arise matters in themselves entirely beyond the jurisdiction between the plaintiffs and such if any of the defendand scope of the Legislature of this country.'
ants as may be Americans. I should be competent to “However, there are other clauses of this act of Par- administer American law between Americans coming liament by which foreign vessels may occasionally be here for relief. affected, and which may make it advisable to call in “As regards such of the defendants who have deaid those additional guides to which I have referred murred, as are English, it will be useless to amend; for arriving at the true construction, namely, the gene- for as against them no amendment will better the ral circumstances under which the act was passed, and plaintiff's case. * * As regards such of them as the preamble of the act."
are English I entertain no doubt." After showing that the preamble which recited The demurrer being allowed, the plaintiffs appealed, merely that "it is expedient to amend and consolidate and after argument the appeal was dismissed by the the acts relating to merchant shipping," shed little or lords justices. 2 De Gex & Jones, 614. no light on the question, and referring to the decision Knight Bruce, L. J., said he was of opinion, considof Lord Stowell in The Carl Johan, the vice-chancel- ering the state of the law of England immediately lor proceeds:
before the passing of the act, and considering the con"The general law, however, which is there laid down text, that the court ought not to construe the limited by Lord Stowell, seems to me to be very material in liability sections as applying to the case. He expressly coming to a conclusion as to the object of the present declined to say whether the plaiutiffs would have been statute, framed as it is by way of consolidation of the right or wrong if one of the two ships had been Britlaw as it existed when the act was passed.”
ish, or if the collision had happened in a British river He then argues that the general law, or law of na- or port," tions, with regard to injuries of this description, has Turner, L. J., said: “The words of these sections provided for full compensation to the injured party; are no doubt wide and extensive.
But it is aud that a construction of the statute which would not because general words are used in an act of Parrestrict the rights of foreign owners under this general liament, every case which falls within the words is to law, whenever run down by a British ship upon the be governed by the act. It is the duty of courts of high seas, would be the last construction he ought to justice so to construe the words as to carry into effect adopt.
the meaning and intention of the Legislature." As regards this part of the opinion, it is to be re- “This is a British act of Parliament and it is not, I marked that unless it has reference to the “general think, to be presumed that the British Parliament law" as administered in British courts, and the rights could intend to legislate as to the rights and liabilities of foreigners therein, it seems to be founded on a mis- of foreigners. In order to warrant such a conclusion, apprehension, the general maritime law on the conti- I think that either the words of the act ought to be nent being different, as we have seen.
express, or the context of it ought to be very clear.” After showing how unjustly such a construction of “Another consideration, which, as it seems to me, the act might operate against nations with a small bears strongly upon the general words of these sections marine and employing a small class of vessels, the vice- of the act, is, I think, furnished by considering the chancellor proceeds to cousider the application of vari. source from which these sections are derived. They ous other provisions of the Merchant Shipping Act to are plainly taken from 53 Geo. 3, ch. 159, and the prior foreign vessels. He then says:
acts on which that statute was founded, and those “In the case before me it is damage done by one acts had, before the passing of this act, been decided American ship to another American ship on the high not to apply to foreign rights. The Legislature cannot seas. Now hitherto I have considered only the ques- be supposed to have been ignorant of that decision at tion as between a ship of this country and a ship of a the time this act was pilssod, and it cannot, I think, foreign country. Even in such a case, it appeared to be imputed to it, that with that knowledge it intended me, as I have said, that it would be beyond the prov- to alter the law on this important question without ince of the Legislature of this country, and unreason- some more definite expression of that intention. able and inequitable to legislate; but to suppose that “But what seems to me to be more decisive upon the Legislature of this country had it in contemplation the subject is the context of the act. If the 504th secto restrict the natural rights I have referred to as tion (corresponding to $ 4283, U. S. Rev. Stats.), between two ships, both belonging to foreign coun- reaches the case of a collision between foreign vessels tries, on the high seas, would be still more startling owned by foreigners, the 503d section (see $ 4281, U. than to presume that it intended to deal with foreign- S. Rev. Stats.) must also reach that case, and then we ers in a case where those who are affected by the act of must suppose that the British Parliament meant by such foreigners are British subjects, and amenable this act to legislate upon the questions what should be therefore to the acts of the Legislature.” P. 383. inserted in the bills of lading of foreign shippers and
" It was contended upon this part of the case that what should be declared by them to the masters of the lex fori should prevail upon those general grounds the vessels on board which their goods were shipped." upon which the lex fori has been held to operate. But it “ An attempt was made on the part of the appellants is clearly laid down by Dr.Lushington in the case of The to bring this case within Don v. Lipman, and cases of Zollverein, citing with approbation Mr. Justice Story's that class (on the lex fori); but I think those cases work on the subject (Confl. of Laws, $ 558), that have no bearing upon the point. This is a question of although the lex fori has application to every thing liability, and not of procedure."