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Rhinelander v. Insurance Company of Pennsylvania. 4 Cranch, 29..

"This was a case certified from the circuit court for the district of Pennsylvania, in which the opinions of the judges of that court were opposed to each other." And in the decision of the supreme court, one judge is spoken of as doubting.

I do not know any question to chich the "non it arefert" would apply with less propriety, than in this case.

As a new question, it could be determined only on the principle of mercantile convenience, which is the great principle upon which every question of this nature ought to be decided. It was stated by the court to be a new question. In the case of Hamilton v. Mendez, says chief justice Marshal, lord Mansfield leaves it completely undetermined whether the state of the loss, at the time the abandonment is made must fix the right of the parties to recover on an action afterwards brought." The supreme court of Pennsylvania, chief justice 'Tilghman, &c. sitting, it was holden that at least the libelling, as in that case, would justify an abandonment. I did not understand it to be laid down in that case of Dutilgh v. Gatliff, that nothing short of having libelled, would justify. But that at least a capture, and carrying in for adjudication, and libelling, would. This was a matter short of condemnation.

Taking up the matter upon original ground, I would enquire what is it that would constitute a deviation, such as to excuse the underwriter; or what is it that would constitute such delay, as would affect the right of abandonment as for a total loss? If a point insured against, occasions a detention to such extent, or produces a deviation, will not the measure of the one be the measure of the other? I would take it that the moment the peril attaches, and has an effect to the amount of the whole, an action for a total loss accrues. I know no medium that can be taken between this, and a final condemnation, without great embarrassment. I would have held it, were it a new case that the right of abandonment arises on the attachment of the peril; but not that the injured was

bound to abandon, on that happening, but might take time in using means with due diligence to escape from it. Independent of marine regulations, or the contract of the parties, I would have taken this to be the law; because, independent of regulation, or the contract of the parties, I could conceive of no other general rule that would work throughout, and secure an indemnity. Upon the abstract principle, I had taken it, that though Lord Mansfield had not decided it, yet that whatever would have justified the abandonment, supposing the insurer, and insured to be upon the spot at the time the peril happened, and the assured to have offered to abandon, his right was the same when the intelligence of that fact came to hand, without regard to what in the mean time had taken place. This rule is simple, and intelligible, and any other rule leads to embarrassment.

Some certain time is usually stipulated in the policy after which, on abandonment, payment is demandable of the writer. Suppose that period to elapse, and payment to be made, there must be a repayment, on it turning out that a detention was over, or that a restoration had taken place. There may be an opening and shutting of abandonment, if it is to depend upon a new state of the fact. In all cases the insurer, who usually wishes to escape the having an abandonment thrown upon him, will say, wait till I see whether the state of the fact may not be changed, and which may relieve me from the necessity of accepting the abandonment. In that case a clause of 30 days, or other time is useless; or, rather inconsistent with the idea of the state of the fact case. The very inserting such a clause proves, that, in the understanding of the contracting parties, the payment on abandonment could have no relation to the state of the fact changing from what it was, when the intelligence set out if I may so speak, that afterwards came to the insured, and on which the abandonment was made.

Suppose on suit brought, in answer to an allegation of the declaration, that a vessel had been taken, it was pleaded, that she had been restored, on demurrer would not that be Holden a departure; because the question was not what had

happened, after she was lost to me, but whether she had ceased to be in my power at any time, whether from physical, or moral force; so that for a time I was disabled from the prosecution of my voyage. It is matter of election with me whether to waive an abandonment instantly on the attachment of the peril, or to endeavour to release myself. If I chuse not to abandon on the peril attaching, the doctrine of abandonment in reasonable time, or otherwise, will then come into view.

Chief Justice Marshall says that "commercial contracts are seldom rightly expounded by a course of artificial reason ing." I am at a loss to know by what otherwise they are to be expounded but the application of reason where the rule is said not be fixed, and the ab inconveniente must guide. It is of more consequence with me than a dictum of my lord somebody to this or that effect; or even a decision of several my lords. For decisions are but evidence of the reason of others, but the reason itself deduced from the inconveniente, is paramount, in settling what the decision ought to be.

But the non ita refert will induce an acquiescence where the rule may be helped by the contract of the parties when known and established. As in this case, where for the sake of uniformity in the law of insurance, the courts of the states have conceded to this rule of the supreme court of the union. It has been done in Pennsylvania, and I presume elsewhere. But that has nothing to do with the principles on which it ought to have been placed, and an examination of the opinions of different members of a court who have dissented, or doubted in the introduction of the rule.

Ex parte Bollman, and ex parte Swartwout. 4 Cranch, 75.

In this case Johnston justice dissented; and my object is to examine his opinion. And at this moment of entering on it, I do not know whether I shall support his dissent, or declare against it. For I write as I read. And it is chief

ly because I saw there was a dissent in a case of great importance, I mean involving a principle of great importance, that I have been led to examine it.

"I am far, says the Judge, very far from denying the general authority of adjudications. Uniformity in decisions is often as important as their abstract justice. But I deny that a court is precluded from the right, or exempted from the necessity of examining into the correctness, or consistency of its own decisions, or those of any other tribunal." This is excellent, and I am so pleased with it, it is so congenial with my own way of thinking, that I shall be sorry if I shall be under the necessity of finding this Judge wrong in the case before me.

He adds further, "strange indeed, would be the doctrine, that an inadvertency once committed by a court, shall ever after impose on it the necessity of persisting in its error.

case that cannot be tested by principle is not law; and, in a thousand instances have such cases been declared so by courts of justice." This is manly; and spoken like a man of sense, and of independent mind, that has a conscious. ness of its own strength. He proceeds. "The claim of the prisoners as founded on precedent, stands thus. The case of Hamilton is strikingly similar to the present. The prisoner had been committed by the order of the district judge on a charge of high treason. A writ of habeas corpus was issued by the supreme court, and the prisoner bailed by their order. The case of Burford was also strictly parallel to the present. But the writ in the latter case having been issued expressly on the authority of the former, it is presumed that it gives no additional force to the claim, but must rest upon the strength of the case upon which the court acted.

"It appears to my mind, continues the judge, that the case of Hamilton bears upon the face of it, evidence of its being entitled to like consideration; and that the authority of it was annihilated by the very able decision in Marbury v. Madison."

What evidence could it bear upon the face of it, but the reasons upon which it went; or the mere circumstance of the

court taking jurisdiction? But the decision in Marbury v. Madison, annihilated the authority of this case. In this case, says the judge, it was decided that congress could not vest in the supreme court, any original powers, beyond those to which this court is restricted by the constitution. That an act of congress vesting in this court the power to issue a writ of mandamus in a case not within their original jurisdiction, was unconstitutional and void. In the case of Hamilton. the court does not assign the reasons on which it founds its decisions, but it is fair to presume that they adopted the idea which appears to have been admitted by the district attorney, in his argument, viz. that this court possessed a concurrent power with the district court, in admitting to bail. Now a concurrent power in such a case must be an original power; and the principle case, Marbury v. Madison, applies as much, to the issuing of a habeas corpus, in a case of treason, as to the issuing of a mandamus in a case not more remote from the original jurisdiction of the court."

All this is correct. The court are involved in an inconsistency; but what will he say to me, who deny the case of Marbury v. Madison, to be law, and set up the cases of Hamilton and Burford?

Disembarrassing the question from the effect of precedent, he says he will proceed to consider the construction of the sections of the act of congress, on which the issuing a habeas corpus must depend. That is right; let us neither hold the court to Marbury v. Madison, nor support them by Hamilton and Burford.

It is necessary to presume, says the judge, that the case of treason is one in which this court possesses neither original, nor appellate jurisdiction. The 14th section of the judiciary act, so far as it has relation to this case, is in these words: All the before mentioned courts (of which this is one) of the United States shall have power to issue writs of scire facias, and habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." "If the power to issue the writs of scire facias and habeas corpus, be not restricted to

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