neighbourhood shall be reduced to the condition of vassatage, and the subordinate magistrates will be enabled, through the medium of influence and elections, to dictate to the legislative, and to overawe the executive department of the state; and similar cases will be determined very differently, when many hundred individual magistrates are to give the rule. To repeat the language of a very celebrated commentator, we shall fatally experience that "these new tribunals, erected for the decision of facts without the intervention of a jury, are steps towards the establishing an aristocracy, the most oppressive of absolute governments," unless taking advantage of the admonition of the same enlightened author, we feel that "it is above all a duty which every man owes to his country, his friends, his posterity, and himself, to guard with the most zealous circumspection against the introduction of new arbitrary methods of trial; which under a variety of pretences, may, time, imperceptibly undermine the trial by jury, the best preservative of liberty."

3. Because the bill has an oppressive and pernicious tendency. The emoluments of a justice must depend upon his practice, and the practice will usually depend upon the patronage of the wealthy, or the litigious part of the community. Calculating, therefore, upon the natural imperfections of the human character, the temptations to oppress the poor, the helpless, and the tranquil, will be almost irresistible, nor any mean be suggested to avert the evil, while the transaction passes in the private room of a justice's house; and particularly if the aid of counsel (as once was contemplated) should be denied. Whatever may be the perversion of facts, whatever may be the distortion of law, little consolation can be derived from the mere right of appeal, since the accumulation of costs could hardly be sustained by a poor man. THOMAS M'KEAN.

SOUTH CAROLINA: CIRCUIT COURT U. S. JUNE, 1816.

Fisher et al. vs. the Sybil.-Salvage.

Johnson, J. Ir ever there was a case in which the claimants on a libel for salvage were thrown upon the protection of a court, this is one. There is not a witness to any thing that occurred on the ocean, who is not interested in increasing the compensation. Even Dangerfield, the master, to extricate himself from damages and censure, finds his interest coincide with those of the libellant, in making out a justification for abandoning the vessel. However the witnesses may differ in representing the merits of each other, they all, with the exception of one (I mean the Indian seaman, Francis) concur in making this out a case of great distress, and complete abandonment. The practice of this court permits the individual in such a case, to exhibit his own merits on his own oath, and it is but too evident that most of the salvors have attached much importance to the idea that this is a case of derelict, and that the salvage in such a case must necessarily consist of a large proportion of the goods saved. It is only in the contest for the distribution of this proportion that they disagree, and each one showing too strong a disposition to present himself as the hero of the adventure.

Their advocates also have ably and ingeniously argued that cases of derelict are cases in which the salvors are peculiarly entitled to a liberal reward; that the courts have manifested the most striking liberality in such cases, generally giving one half, sometimes as far as three-fifths, never less than one third. The property libelled being of considerable amount, near one hundred thousand dollars in value, it becomes very material to the salvors to maintain this doctrine.

But whoever looks into the history of the law of salvage, will find it to be, as now acknowledged, in Admiralty Courts, comparatively of modern origin. Even the meaning of the term derelict, is now materially varied from what it was ori

ginally, and the idea that the salvor is entitled to any thing like a de jure compensation, has long since been exploded. In the language both of the civil and common law, derelict as applied to chattels, meant a thing voluntarily abandoned, so that the first finder became the rightful possessor, if he reduced it into possession. Such were the bona vacantia of the civil law; in which, in a state of nature, it is evident, whether the thing be found on sea or land, that the individual would acquire an absolute and exclusive interest; but in a state of society, whether he should take it wholly to himself or to the use of his sovereign; or what portion of it he should retain, and with whom divide the residue, must necessarily depend upon the provision of positive law. The barbarous notions in which originated the droit de Bris of France, and the roy al privilege of wreck in England, have long since (among the rulers, if not among the people of those countries) given way to the progress of moral, intellectual, and commercial improvement. But there is reason to think that wreck and derelict were anciently confounded. It is perfectly natural for the inhabitant of a sea coast, whose subsistence perhaps from his earliest recollection has been drawn from the ocean, to consider whatever is cast up by the sea as a bounty from Providence to the first finder. But the possessor of the soil would also put in his claim, and either exclude the casual tresspasser, or insist that the bounty was sent to himself, and confer on the finder a portion or compensation only as a gratuity. Such at this day is the law of England, with regard to the property of a pirate or enemy cast away on the coast. It is not sa easy to find a satifactory reason for the idea which too certainly has prevailed, that a ship-wrecked mariner may be treated as a ship-wrecked enemy. Yet in the history of navigation, we may find an apology, if not a justification for this barbarous notion.

The first nautical expeditions were certainly equipped for the puposes of war or plunder. The coasts of France and Great Britain were long infested and devastated by the

cruisers of Norway and Denmark. If then every vessel that appeared threatened plunder, slavery and bloodshed, it was natural to consider every vessel that was wrecked as an enemy on whom heaven had executed vengeance. The benign spirit, which religion has breathed into modern ethicks would assign to an enemy in misfortune the treatment of a friend, but death, plunder and slavery may have been sanctioned by retaliation, and was certainly the law of the victor in that day. I can scarcely admit the disgraceful supposition that afterwards as commerce extended, and the eyes of men became opened to the necessary distinction between wreck and derelict, the cruel purpose of removing a claimant or a wit ness could have operated to expose the lives of ship-wrecked persons, but there is too much reason to infer from the laws which have been passed for their protection, that some protection was necessary. In the laws of Oleron (31st art.) it is asserted that this often happened: and as late as the year 1798, in a case which occurred before sir William Scott (the Aquila) we find a magistrate alleging on oath, that the plundering of a wreck is customary on that part of the coast of England where he resided.

For the modern acceptation of the word derelict we may very safely take the definition of sir Leoline Jenkins, as given us by sir W. Scot: "boats or other vessels (or, he may have added, any goods washed overboard at sea, or floated away from land) forsaken, or found on the seas, without any person in them, of these the admiralty has but the custody, and the owner may recover them in a year and a day." And such the form of the libel usually filed in such cases, declares it to be, to wit: "found floating to and fro on the high and open seas." Such goods are in the first instance pronounced derelict in the restricted sense of the word, to wit: abandoned from fear or necessity. But after the year and day they are considered as pure derelict, as having been absolutely and voluntarily abandoned, so that the sum or portion reserved in the registry of the court becomes a droit of the admiralty. If

here is any thing in the law of salvage which distinguishes the case of a salvor or derelict, in the modern acceptation of the term, from any other salvor, I have never been able to discover it. Whether we refer to the reason of the thing, or to adjudged cases, the court appears to possess an equal latitude of discretion in all cases of salvage, and rewards either by adjudging a compensation in ratio or in number, as it think reasonable. One general rule, and that alone appears to run through all the cases, and that is "the compensation must be liberal, and that too not only with a view to the value and endangered state of the thing saved, the risk incurred, the skill and labour bestowed, but with a view to the general interests of commerce in promoting exertions in such cases, and to the interests of mankind in rewarding and promoting generous and magnanimous actions. The court undertakes to direct not only the justice but the generosity of the claimant. However, the ancient idea that wreck and derelict was the property of the crown may have been exploded in modern times, it is very certain that something like that idea has been preserved in the adjudication, between salvors and claimants, as to the quantum which each shall retain of the thing saved. Such unlimited discretion has always been assumed, as looks very much like acting under the principle that "cujus est dare ejus est disponere." That it is not a mere case of quantum meruit is universally allowed; and why the court should prescribe a rule to the generosity of the claimant under any other idea, is is difficult to discover. For the same reason it is that a compensation has been awarded to an apprentice boy instead of his master, and hence perhaps also such liberties are taken with the reasonable rules of evidence as suffer parties to make out their case upon their own affidavits, as they do in some measure in prize cases, which are certainly boons of the government. If the case of derelict, according to the modern acceptation of the term, be considered, with a view to the reason of the thing, there will be found to be in it no ground necessarily attaching to it a superior claim to all other com