Ross et al. Executors v. Rittenhouse

• Decision Date: 01 April 1792
• Citation: 2 Dall. 160,2 U.S. 160,1 L.Ed. 331
• Parties: Ross et al. Executors v. Rittenhouse
• Court: U.S. Supreme Court

2 U.S. 160

2 Dall. 160

1 L.Ed. 331

Ross et al. Executors v. Rittenhouse

Supreme Court of Pennsylvania

April Term, 1792

In this cause a verdict was taken for the plaintiff, subject to the opinion of the Court on a case stated. After argument, the Judges recapitulated the facts and arguments of counsel, and delivered their opinions seriatim in the following terms:

M'Kean, Chief Justice:

This case is, in brief, as follows: The British sloop Active had been captured as prize on the high seas, in September, 1778, and was brought into the port of Philadelphia, where she was libelled in the Court of Admiralty of the State, held before George Ross, Esq. the then Judge, on the 18th day of the same month. The four persons, for whose use this action is brought, claimed the whole vessel and cargo, as their exclusive prize; but Thomas Huston, master of the brig Convention, a vessel of war belonging to the State of Pennsylvania, claimed a moiety for the States, himself, and crew; and James Josiah, master of the sloop Gerard, a private vessel of war, claimed for himself, owners, and crew, a fourth part, allowing a fourth for the four persons before named. All the claimants were citizens of the United States. The libels were tried by a Jury, on the 15th of November, 1778, and a general verdict given, in the proportions above mentioned, which was confirmed by the sentence of the Court. Gideon Umstead and the other three persons, were American mariners on board the Active; they had risen upon the master, and confined him and the other mariners in the cabin, where a contest was kept up for the command of the vessel. The Convention and Gerard came up with her, and the question was, whether the four American mariners had subdued the rest of the crew before these vessels came in sight; that is, whether hostilities had then ceased? The jury were of opinion, they had not, and gave the verdict accordingly.

Gideon Umstead and the three other mariners appealed from the sentence, to the Court of Appeals of the United States, which, on the 15th of December following, reversed the sentence of the Judge of the Admiralty, and decreed the whole to the appellants. The Judge refused obedience to the decree of reversal, and paid a moiety of the net proceeds of the prize into the treasury of the State, taking a bond of indemnity from the defendant in this action, as treasurer of the State, upon which bond this action is brought. The Executors of Judge Ross, the obligee, having been previously sued in the Court of Common Pleas, for the county of Lancaster, in this State, for the money so paid, and judgment being obtained against them by default, without any knowledge of the defendant.

Thereupon several questions have been made, which may be stated as follows:

1st. Had the Court of Appeals jurisdiction to investigate facts, after a trial and general verdict by a Jury, and to give a contrary decision, without the intervention of another Jury?

2nd. Had the Court of Common Pleas of Lancaster county jurisdiction in the action by Umstead and others, against the Executors of the Judge; or should not the decree of the Court of Appeals have been carried into execution by that Court, or the Court of Admiralty, without the aid or interference of any common law court?

3rd. Can an action be maintained on this bond, the condition whereof is virtually to disobey the Court of Appeals, and the laws of the land, if that Court had of right a power to decide contrary to the general verdict of a Jury? And, can the plaintiffs, without having defended, or given notice to the present defendant of the suit in the Court of Common Pleas, support an action on this bond?

I conceive it proper to premise, that I took notice at the time this action was first brought to trial in this Court, 'that when the business was before the Court of Appeals of the United States, in December, 1778, I had the honor to be President of that Court; but declined fitting on account of my connection with this State as Chief Justice, and otherwise; and that the same reason still subsisted. That the next thing to giving a righteous judgment, was to endeavor to give general satisfaction; which circumstance might not probably be attained by our decision of the present controversy, both Court and Jury being in some measure interested, as they were all citizens of Pennsylvania. For these reasons, I expressed a wish, that some mode might be adopted for trying the cause in the Supreme Court of the United States.' This proposition was then assented to, and a Juror withdrawn; but, it seems, our expectations have been disappointed, and we are obliged, at last, to decide the controversy.

To determine the first question, we must take into consideration the act of Congress for erecting tribunals competent to determine the propriety of captures, passed the 25th November, 1775, the fourth section of which is in these words: 'That it be, and hereby is recommended, to the several Legislatures in the United Colonies, as soon as possible, to erect Courts of Justice, or give jurisdiction to the Courts now in being, for the purpose of determining concerning the captures to be made aforesaid, and to provide, that all trials in such case be had by a Jury, under such qualifications as to the respective Legislatures shall seem expedient.' The sixth section provides; 'that in all cases an appeal shall be allowed to the Congress, or to such person or persons as they shall appoint for the trial of appeals, &c.'

The act of General Assembly, passed the 9th of September, 1778, intitled 'an act for establishing a Court of Admiralty,' allows appeals from that Court in all cases, unless from the determination or finding of the facts by the Jury, which was to be without re-examination or appeal.

The Congress on the 15th of January, 1780, resolved (inter alia) 'that the trials in the Court of Appeals be according to the usage of nations, and not by Jury.' This has been the practice in most nations, but the law of nations, or of nature and reason, is in arbitrary states enforced by the royal power, in others, by the municipal law of the country; which latter may, I conceive, facilitate or improve the execution of its decisions, by any means they shall think best, provided the great universal law remains unaltered. Now, why may not a fact, respecting the capture from an enemy by citizens of the same State, and in which question no foreign nation, or person, is concerned, be determined by a Jury, as well as in other cases? This mode of ascertaining a fact done on the high seas, to wit, who were the captors of a prize, when the contending parties are all citizens, or subjects of the same country, seems to be as reasonable, as in disputes about property, acquired on land. I confess, I do not see how the law of nations is counteracted, or infringed by it.

In England, if piracy was committed by a subject, it was held a species of treason, being contrary to his allegiance by the ancient common law; if by an alien, it was held to be felony. Formerly it was cognizable by the Admiralty Courts, which proceed by the rules of the civil law; but the statute 28 Henry 8. g. 15. established a new jurisdiction for this purpose, which proceeds according to the course of the Common Law. Here is a precedent of an act of Parliament changing the common mode of trial in Europe, and introducing the trial by Jury, which remains in force and practice to this day. If this can be done, where life is the stake, a fortiori, it may be done in matters of meum et tuum.

It, then, appearing to me, that the Congress and Legislature of Pennsylvania had power and authority to make the alteration, in the mode of trial of facts litigated between citizens, it remains to be enquired, whether the verdict in the present case was capable of re-examination by the Court of Appeals, without another Jury. The genius and spirit of the Common Law of England, which is law in Pennsylvania, will not suffer a sentence or judgment of the lowest Court, founded on a general verdict, to be controuled or reversed by the highest jurisdiction; unless for error in matter of law, apparent upon the face of the record. 3 Blackst. 330. 379. 1 Wils. 55. This is enforced by the act of Assembly of the 9th of September, 1778, in clear and express words, in the very case under consideration; which act was passed in compliance with the act of Congress of the 25th November, 1775, and allows an appeal in all cases, unless from the verdict of a Jury; having a reference to the subject matter, and meaning that the facts should not be re-examined, or appealed from; but that an appeal might be made notwithstanding, with respect to any error in matter of law. The advantage of viva voce evidence over written, in the investigation of truth, will hardly be controverted at this day in the United States; and the Court of Appeals had not the opportunity of seeing the witnesses on the trial, or of so well knowing the credit due to them, respectively, as the Jury.

For these reasons, and others, which I shall omit for the sake of brevity, I am sorry to be obliged to say, that, in my judgment, the decree of the Committee of Appeals was contrary to the provisions of the act of Congress, and of the General Assembly, extra-judicial, erroneous and void. I am strengthened in this opinion by the true construction of the resolve of Congress, of the 15th January, 1780, to wit, that the trials in the new Court of Appeals should be according to the usage of nations, and not by Jury; which implies, that the Court of Appeals, prior to this, had, or ought to have, proceeded by Jury-trials. Ad questionem facti non respondent judices, ad questionem juris non respondent juratores. 1 Inst. 155. b.

As my opinion on the first question, is in favor of the defendant, it will appear unnecessary to say any thing to the other points; but as they have been strongly insisted upon, I shall briefly notice one of them. It rather...