A great number of depositions were filed by the different claimants in support of their several allegations.

On an examination of these depositions, it will appear that the sole poin: in dispute was whether the captain of the Active had been so completely subdued by captain Olmstead and his companions as to give him the sole and entire command of the vessel and cargo at the time captain Houston arrived and took possession of her.

The trial took place on the 4th of November 1778: counsel were heard on both sides, much testimony was offered and the cause was fully argued.

After a very complete investigation, and careful deliberation, by an impartial jury a verdict was returned by which it was adjudged that one fourth of the neat proceeds of the sloop and her cargo, should go to the first claimants, that is to Olmstead and his associates, and three fourths to the libellant, and second claimant, as by agreement between them.

The judge of the admiralty having made a decree in pursuance of this verdict, Olmstead entered an appeal from his decision.

This appeal was made to a committee appointed by the continental congress, and consisted of members of their own body.

On the 12th of December 1778: the cause was brought before that committee, and on the 15th of the same month they decreed that the judgment or sentence of the Court of Admiralty, be reversed and annulled: that the Active and her cargo should be condemned for the sole use of Olmstead and his companions, and they ordered that process should be issued from the Court of Admiralty, for the sale of the Active and cargo the proceeds of which were to go according to the sentence of the committee.

Judge Ross, who then presided in the Court of Admiralty for the state, refused to comply with this decree on the ground that as by the laws of Pennsylvania, no appeal lay from the decision of a jury, the Court of Appeals had no jurisdiction, and therefore could not legally reverse his sentence. And I do most humbly contend notwithstanding all that has lately passed, that the judge was correct in his opi

nion.

And although in this sentiment I have the misfortune to differ from men, eminent for their probity and their talents, I have the consolation of knowing that I am supported in it, by men as distinguished for their wisdom and their virtue.

The determination of the judge of the admiralty, was founded 1st. on the express words of our act of assembly, and 2d, on the known principle of the law, that the verdict of a jury, cannot be reversed on appeal.

"The finding of the jury, shall establish the facts, without re-examination of an appeal."

These words are an express prohibition of an appeal. Nothing can be more clear and incontestible. They cannot admit of a moment's doubt or hesitation.

Well, in addition to the express words of the act of assembly, what is the general principle of law? By the common law, the trial of facts is entrusted to the jury, and the power to declare the law upon them is committed to the judges. These are distinct provinces, and the limits between them, are guarded by invariable usage, and the most incontestible authorities. The errors of the judge, may be corrected by superior tribunals; but the verdict of a jury, suffers no re examination, but is final and decisive.

And upon this principle, the several sections of the act of assembly, and the resolves of congress are easily reconcileable.

"The finding of the jury, shall establish the facts, without re-examination, or appeal. But in all cases of capture, an appeal from the decree of the judge of admiralty, shall be allowed to the continental congress, or such person or persons, as they may from time to time appoint, for hearing and trying appeals."

From the decree of the judge, where there has been no jury trial there may be an appeal; but there shall be none, where the facts are found by a jury.-Their finding shall be without re-examination or appeal.

This is exactly conformable to the old known, and established rule of law. Ad questionem juris respondent judices ad questionem facti respondent juratores.

So well established is this principle, that I think I may defy the best read lawyer at the bar, to produce a single instance at common law of an appeal from the verdict of a jury.

When a jury proceeds to try a cause in an inferior court, a question may arise, on the competency of a witness, or some other testimony. The inferior court decides that questionthey either admit or reject that evidence. The party intending to object, states the matter in a bill of exceptions.

The jury then proceeds to try the cause, according to the judgment of the inferior court; and on appeal, the superior court determines upon the judgment of the inferior court.

They do not touch the testimony. If they determine that the evidence was either improperly admitted, or rejected, they set aside the judgment, and send back the cause, to be tried again by a jury in the same court.

These are the only cases in appeals, from inferior courts, where the superior courts can even consider facts incidentally.

Now what was the proceeding in this case? a special jury of twelve respectable men return a verdict, on which the decree of the judge is founded. From this decree and verdict, an appeal is made to congress, who appoint four of their members to determine it.

And what is the conduct of these four men, who are thus to set upon the verdict of twelve respectable men, and the sentence of a learned judge?

Do they as in other cases of appeal or error, set aside the sentence of the judge, and send the case back to the same court to be again tried by a jury? no; it is very different.

They not only reverse the sentence of the judge in point of law, but they set aside the verdict of the jury in matter of fact, and make an entirely opposite decision, in law and in fact. This appears to me, to be a monstrous departure from every principle of law and justice.

It is not therefore a matter of wonder, that the judge of the court of admiralty, refused to comply with the sentence of the court of appeals. And he was supported in his refusal by all the constituted authorities of the state. The introduction of juries into the courts of admiralty was certainly a novel practice. Courts of admiralty in other countries and I believe now universally in the United States, proceed without jury, in a method much conformed to the civil law.

And where the question is solely whether lawful prize or not, a judge learned in the civil and maritime laws, would certainly be better qualified to decide it than a jury.

For this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country to determine it.

But how does this principle apply to the case of the Active? There was no dispute in that case between subjects of different states, All the parties litigant were citizens of the United States. Captain Underwood did not contend that his vessel, and cargo were not lawful prize to one or other of the parties; but to which of them was the question.

Now in the forcible language of Mr. M'Kean, when delivering his opinion as chief justice, in the case of Ross against

Rittenhouse, "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 were committed by a subject, it was held as a species of treason, being contrary to his alle giance, 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. c. 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 introdu. cing the trial by jury, which remains in force and practice to this day. If this can be done, where life is at stake, a fortiori, it may be done in matters of meum and tuum.

3 Blackstone, page, 378-9. I will read, to shew the jury the well merited eulogium that judge gives us of this mode of trial. "A trial" says he, "which we have occasionally observed in its progress, is also as expeditious and cheap, as it is convenient, equitable, and certain; for a commission out of chancery or civil law courts, for examining witnesses in one cause, will frequently last as long, and of course be full as expensive as the trial of a hundred issues at nisi prius: and yet, the fact cannot be determined by such commissioners at all, no not till the depositions are published and read, at the hearing of the cause in court.

"Upon these accounts the trial by jury, ever has been, and I trust ever will be looked upon, as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! But this we must refer to the ensuing book of these commentaries, only observing for the present, that it is the most transcend ent privilege, which any subject can enjoy, or wish for; that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution that I may venture to affirm, has under providence, secured the just liber

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ties of this nation, for a long succession of ages. And therefore a celebrated French writer, who concludes that be cause Rome, Sparta, and Carthage, have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury.

Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve, the impartial administra tion of justice, which secures both our persons, and our properties is the great end of civil society. But if that be entirely trusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should be always attentive to the interests and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our courts. It is therefore, wisely ordered, that the principles and axioms of law, which are general propositions flowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts of the judges to be occasionally applied to such facts as ome properly ascertained before them. For here partiality, can have little scope: The law is well known, and is the same for all ranks and degrees, it follows as a regular conclusion from the premises of fact pre-established But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice, have an ample field to range in, either by boldly asserting that to be proved which is not so, or by more artfl suppressing some circumstances; stretching and warping others; and distinguishing away the remainder. Here, therefore, a competent number of sensible, upright jurymen chosen by lot, from those of a middle rank, will be ound the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state, will be cautious of committing any flagrant invasion, of another's righ, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men not appointed till the hour of trial, and that, when