we contend that, under a contract by which all | ranty with regard to the vessel, her seaworthirisk was excluded from us, we are not to be liable for secret defects in our boats, machinery, &c. Our boat, hull, engine, boiler, and general equipment were good, by the proof. [Here the counsel entered into a minute examination of the testimony.] The Act of 1838 is a penal act, imposing new duties upon carriers, and does not apply to a boat engaged in the waters in which the Lexington was employed, when lost, but only to boats voyaging "at sea," or in the specified larger lakes. (Sce 8th and 9th sections of the Act of 1838.) Compare the 8th and 9th sections of the act with the 3d, 4th, 5th, and 6th sections, and it will be seen that the word "sea," in the act, does not mean "bay, river, or other navigable waters of the United States," but "altum mare,' "high or open sea," in the common sense of the term. But, finally, the loss of the Lexington did not result from her not having "iron rods and chains," instead of " wheel or tiller ropes," required by, the statute. The boat, when found to be on fire, should have been stopped; and this seems to have been 370*] the captain's attempt, at one time. The parting of the wheel ropes, if occasioned by the fire, did not contribute at all to her loss. The want of the steering apparatus required by the statute, not being the cause of her loss, is no ground for damages, within the authorities above cited. Mr. R. W. Greene, for the defendants in error, argued the question of jurisdiction first, and then the following points: 1. That the respondents were common carriers. 2. That common carriers are liable for all losses, except those which arise from she act of God, the public enemies, or the fault of the owner of the goods. 3. That common carriers cannot limit their liabilities by notice. 4. That even a special agreement to exempt a common carrier from the legal liabilities of his employment would be void. One cannot be a common carrier, receiving the compensation of common carriers, and yet be exempted or excused from the proper responsibilities of his employment. 5. That if there be any doubt of the correctness of the foregoing propositions, according to the law of England or other countries, there is none according to the law of New York, where the shipment in this case was made. 6. But if the libelants be wrong on the general point (viz., that common carriers cannot, in New York at least, limit their responsibility at all by notice), still the effect of notice, if any effect whatever be given to it, can only be to relieve the carrier from liability for extraordinary losses or occurrences. He is still liable for losses within his own warranty, express or implied, or occasioned by his own negligence or misconduct. The libelants contend, therefore, 7. That there is no sufficient proof of notice in this case; and, 8. That if notice be proved, it does not relieve the respondents from their implied war ness, her equipment, the competency of her crew and commander, the mode of stowing cargo, and the navigation and general management of her as a carrying vessel. And the libelants will maintain, as a rule of evidence fit to govern this case, that if a vessel be lost in fair weather, without the presence of any external cause or occurrence adequate to the production of the loss, the legal presumption is that she was either unseaworthy or was improperly navigated, conducted, or managed; and to discharge the respondents, this presumption must be met, answered, and overthrown, by clear and satisfactory proof. *The libelants contend that there is [*371 in the case no such clear and satisfactory proof as is sufficient to overcome the legal presumption; and they insist, further, that there is proof that, in point of fact, the respondents' warranty was not complied with in various respects, and among others in these, viz.: that the furnaces were unsafe and insufficient; that there was no proper casing to the steam chimney, nor any safe lining of the deck where the chimney passed through; that dry pine wood was habitually kept in a very exposed situation; that, especially, there was a very improper stowage or disposition of the cargo on board, considering what that cargo was; that the boat had no tiller chain or rope, such as the act of Congress as well as common prudence required; that there were on board no fire-buckets, properly prepared and fitted with heaving lines; that the fire engine was in one part of the boat, while the hose belonging to it was kept or left in another, and where it was inaccessible when the fire broke out; and that in other respects the respondents were guilty of negligence, the more culpable, as the same boat had actually taken fire in her last preceding voyage, and no measure of caution had been taken to prevent a recurrence of the accident 1st point. As to the question of jurisdiction. The counsel upon the other side have argued this question as if it were the decision of the court which vested the jurisdiction in it, immediately under the Constitution, without the intervention of an act of Congress, and that if the court were to decide with us, the jurisdiction must remain in its full extent until an alteration of the Constitution. But the Constitution vests in Congress the power to distribute this jurisdiction amongst the courts of the United States, as the public good may require. The courts only take what Congress confers. Congress may confer a jurisdiction as large as the grant contained in the Constitution, as they have done in the Judiciary Act of 1789; or they may abridge and restrict the jurisdiction within such limits as they think proper. They may enact the statutes of Richard, with my Lord Coke's construction. They may even take away the jurisdiction over seamen's wages and bottomry bonds. Congress can also regulate the forms of process and the modes of proceeding in the courts of admiralty, and can provide for the trial by jury of all issues. Upon such a construction of the grant, the people retain the whole subject under their own control, to be regulated as experience and the progress of events may render expedient. If they find it too large under the Judiciary Act of 1789, they can limit it; if they prefer that | ices rendered, &c., &c.; also over the subject the remedy should be confined to cases in rem, they can so restrict it; if they wish a process in personam as well as in rem, they can leave the law as it is. 372*] *Whereas, by the construction contended for by our adversaries, the court are urged to disable Congress, and the people through Congress, from conferring such jurisdiction as their interests may require. The statutes of Richard, with my Lord Coke's construction of them, become a part of the Constitution of the United States, and impose upon the people and Congress a perpetual disability to enlarge the jurisdiction, however much their interests may require it, without an alteration of the Constitution. The members of the convention were statesmen, civilians, and common lawyers; they were engaged in framing an instrument of government, which they hoped, and which we hope, will endure for ages. The great objects of the confederacy were commerce and union. Is it not absurd to suppose that men, engaged in such a work, would have incorporated into the compact of government such distinctions as to remedies in rem and in personam as are contended for by the counsel for the respondents? Would they not have conferred the larger power upon Congress, and thus left the subject to be regulated as experience should show was most expedient? It is said, however, in answer to this, that, if the court should now decide that it does not possess the jurisdiction, Congress can hereafter enlarge the jurisdiction. But the present grant is co-extensive with the grant of power to Congress itself in the Constitution. The words used are the same in both instruments. If, then, Congress have already exhausted their power by vesting the courts with the whole of it, how can any fund remain in reserve upon which Congress can draw for a fresh supply? of material men, inasmuch as the States were foreign to each other as to jurisdiction; also over the subject of salvage, inasmuch as the English admiralty had jurisdiction over salv age only where the property of the ship wrecked was not cast ashore (see 5 Howard, 452); also over the subject of collisions in bays, harbors, and navigable rivers, which are purely a maritime subject, and more apt to occur than collisions on the high seas.] The subject of affreightment is not within the admiralty jurisdiction of England, although the subject of seamen's wages is so. But freight is the mother of wages. The whole subject of affreightment is purely maritime, and within the jurisdiction of all the Continental courts, and of Scotland, to this day. (1 Sumner, 555, 558, 559.) What are the history and principles of English admiralty jurisdiction, as settled by the common law courts? The principle is, that if a contract be made upon land, to be performed upon the sea, or made upon the sea, to be performed upon land, the courts of admiralty have no jurisdiction. But they can only interfere where contracts are made upon the sea, to be performed upon the sea-such as a note of hand, given at sea, to be paid at sea, or an agreement to convey real estate, to be executed upon the voyage. Lord Kenyon admitted this to be absurd. In 3 T. R., 267, he says: "If the admiralty have jurisdiction over the subject matter, to say that it is necessary for the parties to go upon the sea, in order to execute the instrument, borders upon absurdity." The common law; as to all other than maritime contracts, is, that the law of the place of performance is to govern; but this rule is set aside as to admiralty. The general rule which governs all courts, as to their jurisdiction, is the subject matter. This is the rule in chancery, in the But it is contended, by the counsel upon the ecclesiastical courts, and the common law courts, other side, that the English system of admiral- upon every branch of jurisdiction except the ty, as it existed in 1787, became bodily trans admiralty; and in that case alone the inquiry is, ferred, just as it then stood, into the Constitu- not whether the contract be of a maritime nattion of the United States. Without inquiring. ure, but whether it was made within the body for the present, into the absurd, contradictory, of a county. The statutes of Richard are relied and inconsistent principles upon which the com- upon for this rule, and these statutes are demon lawyers of England had placed the sys-clared by Lord Coke to be in affirmance of the tem, let us examine how far it would be suita- common law. From whatever source this rule ble and appropriate to the United States--how of jurisdiction was derived-whether from the far it would be adapted to our condition, and statutes *of Richard or from the com- [*374 adequate to carry out one of the great objects mon law-if it be an arbitrary rule, and not for which the people adopted the Constitution. founded in any just principle, it is unreasonable This object was to promote commerce. The to suppose that the people of the United States preamble indicates this. The United States meant to make it a part of their federal comwas a maritime nation, with an immense ex- pact. But neither the common law nor the tent of sea coast, indented with bays, rivers, statutes of Richard are justly chargeable with and harbors, the navigation of which was this absurd rule of jurisdiction. It rests entirely dangerous. A few considerations will serve to upon the authority of Lord Coke, who was a show that the limited construction contended great common lawyer, but no civilian. for by the other side would eminently fail in promoting this essential object of the union. 373*] *As to pilotage. The English Admiralty had no jurisdiction over pilotage, except upon the high seas, where it was not needed. [Mr. Greene here illustrated the necessity of the supervision of the federal government over the subject of pilotage, because of its importance, its peculiar applicability to admiralty jurisdiction, the meritorious character of the serv [Mr. Greene then cited the ancient commissions in admiralty, the ordinance of Edward I., confirmed by ordinance of Edward III., the statutes of Richard II. and Henry IV., to show that the object of all of them was to place the admiralty jurisdiction in the same position where Edward III. had placed it, which did not justify the rule in question.] The history of Lord Coke's controversy with Lord Chancellor Ellesmere shows the extent to which he desired to push the exclusive jurisdic tion of the courts of common law. (3 Bl. Com., 44.) Lord Coke's enmity to the admiralty has been a subject of comment by the common law judges in later times, particularly by Mr. Justice Buller; but they were bound by the au thority of his decisions, however much they may have condemned the principle on which they were founded. And now, at this late day, this court are called upon to incorporate these decisions into the American Constitution, and thus deprive the American people of the power, through their representatives in Congress, so to regulate this jurisdiction as their interests may require. The preservation of the trial by jury is said to be the great object for which these decisions were made. It was alleged that the admiralty had no trial by jury, that the judge was the immediate representative of the crown, and that the subject had no participation in the proceedings of this court. This was very plausible in England, but it has no application to this country; and even in England itself the reason is not sound. If the trial by jury be of such importance as to exclude the admiralty jurisdiction from certain classes of cases of a maritime character, why is the jurisdiction of the Lord Chancellor allowed in that country? His jurisdiction extends over the whole king. dom, and controls and annuls the judgments of the common law courts. He is the immediate adviser of the king, and keeper of his conscience. He is a member of the Privy Council, a politician, appointed and removed as his party succeeds or falls. There is no jury trial in his court, except at his discretion; and he never orders an issue to be tried before a jury, except when the evidence is so doubtful that he can come to no satisfactory conclusion, and he then 375*1 *puts upon a jury the responsibility of guessing. The United States courts are invested by the Constitution with this power, and they exercise it, sitting as circuit courts in the different States. The reasons for entertaining a jealousy against the former do not apply to the latter. In the United States, admiralty judges, as well as common law judges, are appointed by and responsible to the people, in some form or other. There is, therefore, no political reason for restraining the jurisdiction of a court of admiralty. If our American ancestors were jealous of the jurisdiction of the vice-admiralty courts of the colonies, the reason for that jealousy ceased when we became an independent people. A vice-admiralty judge of the colonies was the representative of the crown; the people of the colonies had no voice nor participation in his proceedings. It was a foreign tribunal, enforcing, amongst other things, the obnoxious laws of trade. But when the people of the United States came to frame a government for themselves, and to establish a judiciary which should be ultimately responsible to them, nothing can more clearly show how well the Convention and Congress understood their change of position, than the insertion into the Judiciary Act of 1789 of the clause which makes seizures upon tide water *for [*376 breaches of the revenue laws, cognizable in the courts of the United States, as courts of admiralty. No trial by jury was provided. This branch of the vice-admiralty jurisdiction was most bitterly complained of by the colonies; and yet the first Congress which sat under the Constitution invested the courts of the United States with the same power. It was composed of many of the same men who, in the Convention, had framed the Constitution, and who had also been members of the Congress whose measures led to the Revolution. The jurisdiction thus given, for penalties and forfeitures upon tide water, is in direct contradiction to the English system. But it was known to the members of the Convention that a jury trial could be prescribed by an act of Congress in the courts of admiralty. It was so in the colonial vice-admiralty of Virginia. ence was never complained of, because they were established by the colonies themselves. How have the common law courts of England It may be mentioned, also, that chancery extended their own jurisdiction, whilst so scru- jurisdiction was given to the courts of the pulous respecting that of others? The venue United States by the Constitution. There is was originally local in cases of contracts and here no trial by jury, and yet it controls and personal torts, as well as in real actions. The annuls the judgments of common law courts. jury must come from the vicinage; and there- Chancery courts existed in most of the colonies fore, where the transaction occurred at sea, no-in New York, Virginia, &c.—and their existjury could try the case. But a videlicet gave to these courts jurisdiction over the ocean, and the defendant was not allowed to deny the fiction. This was, in fact, an encroachment upon the admiralty. The Court of King's Bench had originally no jurisdiction over contracts, but was confined to cases of trespass. But a fiction which was not permitted to be denied gave jurisdiction over matters of contract, and a similar fiction enlarged the jurisdiction of the Court of Exchequer also. Two arguments are urged against the jurisdiction over the present case: 2d. It encroaches upon the jurisdiction of the State tribunals. This argument begs the question. It assumes that such jurisdiction would be an encroachment. We deny it. The words of the grant in the Constitution are, "to all cases of admiralty and maritime jurisdiction." They are words of the most comprehensive import; and from the language used, as well as from the reasonableness of the thing, we say that the people must be presumed to have intended a jurisdiction which was needful and proper 1st. It takes away the trial by jury. 2d. It encroaches upon the jurisdiction of to carry out, or to aid in carrying out, the great the State tribunals. 1st. It takes away the trial by jury. Nothing can be clearer than that our ancestors attached a high value to the right of trial by jury. But there is a wide difference between an English admiralty judge and one appointed under the Constitution of the United States. commercial purposes of the Constitution. In adopting the Constitution, the people intended to confer upon the federal government all the powers needful to accomplish the purposes for which it it was formed. State courts are governed by the common law, and not the law maritime. The decisions of one State, more over, are not binding on another, and thus there would be no uniformity. Whilst the regulation of the commerce of the country was in the hands of the federal government, if its courts had no jurisdiction over commercial questions which might arise out of that commerce, there would be one law in New York, another in Massachusetts, and a third in some other State. [Mr. Greene continued much further his illustrations of this matter. But for them, or for his arguments upon the other points of the case, there is not room.] 377*1 *Mr. Webster, upon the same side with Mr. Greene, laid down the following propositions, which he illustrated at considerable length: This court has decided First. That the admiralty jurisdiction of this government is not limited to the admiralty jurisdiction as it existed in England in 1789. The English rules, therefore, are not to be regarded. (Waring v. Clarke, 5 Howard, 441.) Second. That a suit in admiralty lies for a tort committed on the high seas, or elsewhere within the ebb and flow of the tide. (Waring v. Clarke, 5 Howard, 441.) Third. That in cases of tort, the proceeding may as well be in personam as in rem. v. The Almeida, 10 Wheaton, 473.) (Manro where Fourth. That in case of contract there is a lien, the admiralty jurisdiction arises, though the contract may be made on land. (Peyroux v. Howard, 7 Peters, 324; The General Smith, 4 Wheaton, 438.) Fifth. That the true question in cases of contract is this, to wit, whether the service agreed to be performed, and performed, be in its nature a maritime service. This excludes policies of insurance, but includes affreightment and all contracts to carry over and upon tide waters. (7 Peters, 324: Lord Mansfield and other English judges; Hall's Admiralty, 1.) Sixth. In cases of contract, the proceeding may be in personam, as well as in rem. There would be a great inconsistancy if this were not so. In cases where nothing more is sought than damages for the non-fulfillment of a contract, there are two objects, and two only, in proceeding by way of seizure of the rem. One to compel an appearance in the litigation, the other to obtain security. Both these are identical with the proceeding by way of attaching the defendant's goods, as in the case in 10 Wheaton. But it is important to remember, that, in cases of the seizure of the rem, the judgment or satisfaction is not limited to the proceeds of the sale thereof. If a balance remain unsatisfied, execution process goes against the defendant in personam, if he has appeared and contested the suit. In this case, therefore. the plaintiff proceeds in personam with as much regularity as belongs to any proceeding in rem. Besides, as the res went to the bottom, how could there be any proceeding in rem. If there were another case exactly like this, except that in such case a spar, or a sail, or the caboose house, having been found floating, should have been seized, would this court have taken jurisdiction in one case and not in the other? (10 Wheaton, ubi supra.) 378*] *Seventh. The court having decided that the constitutional grant of admiralty and maritime jurisdiction to the government of the United States is not to be limited by the rules which restrained the English admiralty in 1789, it follows of course that the jurisdiction of the courts of the United States should naturally be co-extensive with the granted power, unless Congress has otherwise declared; and as the Judiciary Act of 1789, section ninth, expressly vests in the district courts of the United States original cognizance of all civil causes of admiralty and maritime jurisdiction, then whatever this court adjudges to be a case of admiralty and maritime jurisdiction belongs originally to the District Court, and invests that court necessarily with the power of all process and proceedings fit and proper for the exercise of its jurisdiction, subject to regulation by Congress. Eighth. It is not, probably, doubted that the grant of admiralty and maritime jurisdiction to the government of the United States is exclusive, or that no State now retains any such power; and so absolutely indispensable has such a jurisdiction been found to be on the interior lakes and rivers, that Congress has been obliged to provide, and has provided, for its exIercise on those waters. (See Act of 1845.) The only objection to this necessary law seems to be, that Congress, in passing it, was shivering and trembling under the apprehension of what night be the ultimate consequence of the decision of this court in the case of The Thomas Jefferson. It pitched the power upon a wrong location. Its proper home was in the admiralty and maritime grant, as in all reason, and in the common sense of all mankind out of England, admiralty and maritime jurisdiction ought to extend, and does extend, to all navigable waters, fresh or salt. The Reporter understands that Mr. Chief Justice Taney, Mr. Justice McLean, and Mr. Justice Wayne, concurred in the following opinion. Mr. Justice NELSON: This is an appeal from the Circuit Court of the United States, held in and for the District of Rhode Island, in a suit originally commenced in the District Court in admiralty, and in which the Merchants' Bank of Boston were the libelants, and the New Jersey Steam Navigation Company the respondents. The suit was instituted upon a contract of affreightment, for the purpose of recovering a large amount of specie lost in the Lexington, one of the steamers of the respondents running *between New York and Providence, [*379 which took fire and was consumed, on the night of the 13th of January, 1840, on Long Island Sound, about four miles off Huntington light-house, and between forty and fifty miles from the former city. The District Court dismissed the libel pro forma, and entered a decree accordingly. An appeal was taken to the Circuit Court, where this decree of dismissal was reversed, and a decree entered for the libelants for the sum of $22,224, with costs of suit. The case is now before this court for review. William F. Harnden, a resident of Boston, was engaged in the business of carrying for hire small packages of goods, specie, and bun dles of all kinds, daily, for any persons choosing to employ him, to and from the cities of Boston and New York, using the public conveyances between these cities as the mode of transportation. For this purpose, he had entered into an agreement with the respondents on the 5th of August, 1839, by which, in consideration of $250 per month, to be paid month ly, they agreed to allow him the privilege of transporting in their steamers between New York and Providence a wooden crate of the dimensions of five feet by five feet in width and heighth, and six feet in length (contents unknown), until the 31st of December following, subject to these conditions: 1. The crate with its contents to be at all times exclusively at the risk of the said Harnden, and the respondents not in any event to be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, &c., to be conveyed or transported by him in said crate, or otherwise in the boats of said company. 2. That he should annex to his advertisements published in the public prints the following notice, and which was, also, to be annexed to his receipts of goods or bills of lading: "Take notice.-William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care; nor is any risk assumed by, nor can any be attached to, the proprietors of the steamboats in which his crate may be and is transported, in respect to it or its contents, at any time." This arrangement expired on the 31st of December, 1839, but was on that day renewed for another year, and was in existence at the time of the loss in question. A few days previous to the loss of the Lexington, the libelants employed Harnden in Boston to collect from the banks in the city of New York checks and drafts to the amount of about $46.000, which paper was received by him and forwarded to his agent in that city, with direc tions to collect and send home the same in the usual way. Eighteen thousand dollars of this 380*] sum *was put in the crate on board of that vessel on the 13th of January, for the purpose of being conveyed to the libelants, and was on board at the time she was lost, on the evening of that day. Upon this statement of the case, three objections have been taken by the respondents to the right of the libelants to recover: 1. That the suit is not maintainable in their names. That, if accountable at all for the loss, they are accountable to Harnden, with whom the contract for carrying the specie was made. 2. That if the suit can be maintained in the name of the libelants, they must succeed, if at all, through the contract with Harnden, which contract exempts them from all responsibility as carriers of the specie; and, 3. That the District Court had no jurisdiction, the contract of affreightment not being the subject of admiralty cognizance. We shall examine these several objections in their order. 1. As to the right of the libelants to main tain their suit. They had employed Harnden to collect checks and drafts on the banks in the city of New York, and to bring home the proceeds in HOWARD 6, U. S., BOOK 12. specie. He had no interest in the money, or in the contract with the respondents for its conveyance, except what was derived from the possession in the execution of his agency. The general property remained in the libelants, the real owners, subject at all times to their direction and control; and any loss that might happen to it in the course of the shipment would fall upon them. This would be clearly so if Harnden is to be regarded as a private agent; and even if in the light of a common carrier of this description of goods, the result would not be changed, so far as relates to the right of property. The carrier has a lien on the goods for his freight, if not paid in advance; but subject to this claim he can set up no right of property or of possession against the general owners. (Story on Bailments, sec. 93, g.) The carrier, says Buller, J., is considered in law the agent or servant of the owner, and the possession of the agent is the possession of the owner. (4 T. R., 490.) Under these circumstances, the contract between Harnden and the respondents for the transportation of the specie was, in contemplation of law, a contract between them and the libelants; and although made in his own name, and without disclosing his employers at the time, a suit may be maintained directly upon it in their names. It would be otherwise, in a court of law, if the contract was under seal. (Story on Agency, sec. 160.) It rested in parol, in this case, at the time of the loss. *In Sims v. Bond (5 Barn. & Adol., [*381 393) the court observed that it was a well established rule of law, that, where a contract, not under seal, is made by an agent in his own name for an undisclosed principal, either the agent or the principal may sue on it; the defendant in the latter case being entitled to be placed in the same situation, at the time of the disclosure of the real principal, as if the agent had been the contracting party. The same doctrine is affirmed by Baron Parke, in delivering the judgment of the court in Higgins v. Senior (8 Mees. & Wels., 834, 844), in the Court of Exchequer. In that case it was held that the suit might be maintained on the contract, either in the name of the principal or of the agent, and that, too, although required to be in writing by the statute of frauds. The rule is, also, equally well established in this country, as may be seen by a reference to the cases of Beebee v. Robert (12 Wend., 413), Taintor v. Prendergast (3 Hill, 72), and Sanderson v. Lamberton (6 Binney, 129) The last case is like the one before us. It was an action by the owners directly upon the sub-contract made by the first with the second carrier for the conveyance of goods, in whose hands they were lost. The cases are numerous in which the general owner has sustained an action of tort against the wrong-doer for injuries to the property while in the hands of the bailee. The above cases show that it may be equally well sustained for a breach of contract entered into between the bailee and a third person. The court look to the substantial parties in interest, with a view to avoid circuity of action; saving, |