[John M'Kinney et al. v. John Carroll.]

inquiry before that court, to the correctness of that judgment. But, independent of these grounds, the statutes of Kentucky, regulating the writ of error coram vobis, limit its operation, expressly, to errors arising subsequent to the judgment of the inferior court. Morehead & Brown's Digest, 1554, 1555.

The first error assigned, in the petition for the writ of error coram vobis, draws in question the validity of the act of the 31st of January, 1812, concerning occupying claimants of lands; on the ground that it is in derogation of the compact between Virginia and Kentucky, and repugnant to the constitution of the United States. Neither the plaintiffs in ejectment, nor the defendant, appear to have raised this question, in any part of the proceedings between them. The plaintiffs in ejectment did not sign the improvement bond, and were not, therefore, parties to the suit in the court of appeals; and, consequently, are not parties here. They, and they alone, had a right to object to the judgment of the circuit court against them, and in favour of the defendant, and the proceedings under it; on the ground that the act of the 31st of January, 1812, was unconstitutional. By that act, they were deprived of the rents and profits of their land, while in the occupation of the defendan and compelled to pay him for all improvements which he had made thereon. And this is the ground of the decision of this Court, in the case of Green & Biddle, 8 Wheat. 1; which was relied on by the counsel for the plaintiffs in error. The plaintiffs in error were the mere sureties of the plaintiffs in ejectment, for the money adjudged to the defendant, for his improvements. The 'bond which they signed, was a voluntary act; and a part of the means provided by the said law, to enable the defendant to obtain satisfaction of his judgment. The validity of the proceedings, so far as they were concerned, did not depend upon the constitutionality of the act concerning occupying claimants of land; and therefore they had no right to complain of it.

The fourth error, in the petition, draws in question the validity of the statute of Kentucky, authorizing defendants to give replevin bonds, payable in two years, upon the plaintiff's failing to cause to be endorsed on his execution, that he would take the notes of certain banks specified in the act in discharge thereof. Had the plaintiffs in error paid the amount of the execution, which issued against them, on the improvement bond, in money, as they were bound to do, this question would never have arisen. Having availed themselves of the benefit of the credit extended to them by that act, and delayed the

[John M'Kinney et al. v. John Carroll.]

defendant in error, in the payment of the debt they had thus voluntarily again assumed upon themselves; is it proper, that at the end of four years, they should be permitted to come into court, and set aside the whole proceedings against them, on the abstract principle, that the statute under which they had taken place, violated the constitution of the United States?

The court of appeals of Kentucky has decided, that a replevin bond cannot be set aside at the instance of the debtor, on the ground that the law under which it was given was unconstitutional. Let it be conceded, says the court, that the constitution of the United States, or of this state, is violated by the law in question; whose rights are infringed by it? Certainly not those of the debtor, for the law is passed and operates exclusively for his benefit. Small & Carr v. Hodgen, 1 Lit. R. 16. And in a subsequent case, the purchaser of a tract of land, under an execution sale, on a credit of one year, attempted to set aside the bond, which he had given for the purchase money; on the ground that the law, under which the sale had been made, and the bond had been executed, violated the constitution of the United States. On the authority of the above case, the court refused to set aside the bond and sale. Rudd & Miller v. Schlatter & Gilman, 1 Lit. R. 19.

Upon this view of the case, it may be fairly presumed, that the court of appeals decided upon some, or all of the grounds here stated; and that it did not decide in favour of the validity of the statutes referred to. But to give this court jurisdiction, it is not sufficient to show, that the court below might have decided in favour of the validity of these statutes, or either of them; it must be apparent, in the record, that the court did so decide. In the cases of Crowell v. Randell, and Shoemaker v. Randell, 10 Pet. R. 391, the court went into a review of all the cases, which it had previously decided, under the authority of the 25th section of the judiciary act of 1789.

In delivering the opinion of the Court, Mr. Justice Story says: "In the interpretation of this section of the act of 1789, it has been uniformly held, that to give this Court appellate jurisdiction, two things should have occurred and be apparent in the record: first, that some one of the questions, stated in the section, did arise in the court below; and secondly, that a decision was actually made thereon by the same court, in the same manner required by the section. If both of these do not appear in the record, the appellate Jurisdiction fails. It is not sufficient to show, that such a question might have

[John McKinney et al. v John Carroll.]

occurred, or such a decision might have been made, in the court. below. It must be demonstrable, that they did exist, and were made."

As it no where appears, in the record of the cause under consideration, that the court of appeals, of Kentucky, did decide in favour of the validity of either of the statutes drawn in question before it; but, on the contrary, it appearing to be reasonably certain, that its judgment was rendered on all the questions presented for its adjudication, on the authority of the state laws; this Court has, therefore, no jurisdiction of this case.

The writ of error must be dismissed.

On consideration of the suggestion and motion made by Mr. Jones, of counsel for the plaintiffs in error; in this cause, on a prior day of the present term of this Court, to wit: on Thursday, the 11th day of January, it is the opinion of this Court, that it is unnecessary to make the heirs and representatives of John M'Kinney, whose death has been suggested on the record, parties to this writ of error; as the cause of action survives to the two other plaintiffs in error.

This cause came on to be heard on the transcript of the record from the court of appeals for the state of Kentucky, and was argued by, counsel; on consideration whereof, it is the opinion of this Court, that this Court has not jurisdiction in this cause; whereupon, it is now here ordered and adjudged by this Court, that this writ of error be, and the same is hereby dismissed for the want of jurisdiction. All of which is hereby ordered to be certified to the said court of appeals, under the seal of this Court.

THE UNITED STATES, PLAINTIFFS V. LAWRENCE COOMBS.

Indictment in the circuit court of the United States for the southern district of New York, for feloniously stealing a quantity of merchandise belonging to the ship Bristol, the ship being in distress and cast away on a shoal of the sea on the coast of the state of New York. The indictment was founded on the 9th section of the act, entitled "An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes; approved 3d March, 1825." The goods were taken above high water mark, upon the beach, in the county of Queens, in the state of New York. Held, that the offence committed was within the jurisdiction of the circuit court.

If a section of an act of congress admits of two interpretations, one of which brings it within, and the other presses it beyond the constitutional authority of congress; it is the duty of the Supreme Court to adopt the former construction: because a presumption never ought to be indulged, that congress meant to exercise or usurp any unconstitutional authority; unless that conclusion is forced on the Court, by language altogether unambiguous.

In cases purely dependent upon the locality of the act done, the admiralty jurisdiction is limited to the sea, and to the tide-water as far as the tide flows. Mixed cases may arise, and often do arise, where the act and services done are of a mixed nature; as where salvage services are performed partly on tide-waters and partly on shore, for the preservation of the property, in which the admiralty jurisdiction has been constantly exercised to the extent of decreeing salvage. Under the clause of the constitution giving the power to congress to regulate commerce with foreign nations, and among the several states," congress possesses the power to punish offences of the sort enumerated in the ninth section of the act of 1825. The power to regulate commerce, includes the power to regulate navigation, as connected with the commerce with foreign nations, and among the states. It does not stop at the mere boundary line of a state; nor is it confined to acts done on the waters, or in the necessary course of the navigation thereof. It extends to such acts done on land which interfere with, obstruct, or prevent the due exercise of the power to regulate commerce and navigation with foreign nations, and among the states. Any offence which thus interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by congress, under its general authority, to make all laws necessary and proper to execute their delegated constitutional powers.

Upon the general principles of interpreting statutes, where the words are general, the court are not at liberty to insert limitations; not called for by the sense, or the objects, or the mischiefs of the enactment.

THIS case came before the Court on a certificate of a division of opinion between the judges of the circuit court for the southern district of New York.

Lawrence Coombs was indicted under the 9th section of the act

[United States v. Coombs.]

entitled, "an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes, approved the 3d of March, 1825," for having, on the 21st of November, 1836, feloniously stolen at Rockaway Beach, in the southern district of New York, one trunk of the value of five dollars, one package of yarn of the value of five dollars, one package of silk of the value of five dollars, one roll of ribbons of the value of five dollars, one package of muslin of the value of five dollars, and six pairs of hose of the value of five dollars; which said goods, wares and merchandise, belonged to the ship Bristol, the said ship then being in distress and cast away on a shoal of the sea on the coast of the state of New York, within the southern district of New York. On this indictment the prisoner was arraigned, and plead not guilty, and put himself upon his country for trial.

It was admitted that the goods mentioned in the indictment, and which belonged to the said ship Bristol, were taken above high water mark, upon the beach, in the county of Queens; whereupon the question arose, whether the offence committed was within the jurisdiction of the court; and on this point the judges were opposed in opinion.

Which said point upon which the disagreement happened, was stated under the direction of the judges of the court, at the request of the counsel for the United States, and of Lawrence Coombs, parties in the cause; and ordered to be certified unto the Supreme Court at the next session, pursuant to the act in such case made and provided.

The case was argued by Mr. Butler, attorney general of the United States. No counsel appeared for the defendant.

Mr. Butler stated that no jurisdiction could exist over the case, unless it was given by the acts of congress. The first crimes act of the United States, of 1790, and the act of 1825, showed the object of congress to have been to prevent the perpetration of such crimes as those charged against the defendant. The penalties imposed by the first act, were found to be too heavy. The act of 1825 was passed, and many offences were included in it which were in the first law. These offences were those which might be committed " on the high seas, and out of the jurisdiction of a particular state." But the 9th section omits the limitation of "the high seas," &c.

The ship must be cast away, or be in distress, or be wrecked in VOL. XII.-K