case in admiralty does not, in fact, arise under the constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise. It is not, then, to the 8th section of the territorial law, that we are to look for the grant of admiralty and maritime jurisdiction, to the territorial courts. Consequently, if that jurisdiction is exclusive, it is not made so by the reference to the district court of Kentucky.

It has been contended, that by the constitution, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction; and that the whole of this judicial power must be vested" in one supreme court, and in such inferior courts as congress shall from time to time ordain and establish." Hence it has been argued, that congress cannot vest admiralty jurisdiction in courts created by the territorial legislature.

We have only to pursue this subject one step further, to perceive that this provision of the constitution does not apply to it. The next sentence declares, that "the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour." The judges of the superior courts of Florida hold their offices for four years. These courts, then, are not constitutional courts, in which the judicial power conferred by the constitution

on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the constitution, but is conferred by congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the states in those courts, only, which are established in pursuance of the 3d article of the constitution; the same limitation does not extend to the territories. In legisla ting for them, congress exercises the combined powers of the general, and of a state government.

We think, then, that the act of the territorial legislature, erecting the court by whose decree the cargo of the Point a Petre was sold, is not "inconsistent with the laws and constitution of the United States," and is valid. Consequently, the sale made in pursuance of it, changed the property, and the decree of the circuit court, awarding restitution of the property to the claimant, ought to be affirmed, with costs,

shall be lawful for such bank or banker to bring a joint action against all the drawers or endorsers, in which action the plaintiff or plaintiff's may declare against the defendants jointly for money lent and advanced, and may obtain a joint judgment and execution for the amount found to be due; and each defendant may make the same separate defence against such action, either by plea or upon trial, that he

could have made against a separate action; and if in the case herein provided for, the bank or banker shall institute separate action against drawers and endorsers, such bank or bankers shall recover no costs. Provided always, that in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees or under them in any way for their use or benefit, the sheriff, upon any execution in his hands in favour of such bank or banker, their or his assignee as aforesaid, shall receive the note or notes of such bank or banker, from the defendant, in discharge of the judgment; and if such bank or banker, their or his assignee or other person suing in trust for the use of such bank or banker, shall refuse to receive such note from the sheriff, the sheriff shall not be liable to any proceedings whatever at the suit or upon the complaint of the bank or banker, their or his assignee as aforesaid."

Mr. Leonard argued the cause in behalf of the plaintiffs, and Mr. Sergeant for the defendants in error.

Mr. Justice Johnson delivered the opinion of the Court, from which we extract the following-being all which relates to the admissibility of the evidence.

The errors assigned arise upon various bills of exception, the first of which was taken to the evidence offered to maintain an action, in these words, "The plaintiff, in support of his action, offered in evidence the following promissory note, drawn by Isaac Cook, and endorsed by Humphrey Fullerton, John Waddle, and John Carlisle."

"Cincinnati, February 1st, 1820.

$4000

Sixty days after date, I promise to pay John Carlisle, or order, at the office of discount and deposit of the bank of the U. States at Cincinnati, four thousand dollars, for value received.

(Signed) ISAAC COOK. Endorsed-John Carlisle, John Wad

dle, Humphrey Fullerton.” "To the introduction of this evidence, the defendant, by his counsel,

objected, as evidence of a several contract of the drawer and each of the endorsers on the note, and not of any joint undertaking or liability of the defendants, which objection was overruled by the court, and the note permitted to be read in evidence, under the act of the general assembly of Ohio, entitled, An act to regulate judicial proceedings, where bank and bankers are parties, and to prohibit the issuing of bank bills of certain descriptions,' passed 18th of February, 1820, to which decision the counsel excepted."

Cook, it appears, was originally made a party defendant to the action, but died pending the suit; the plaintiff suggested his death on the record, and went to trial against the remaining three defendants.

In order to understand the bearing which the instruction moved for has upon the cause, it is necessary to remark, that the state of Ohio was not received into the Union until 1802; so that the process act of 1792, which is expressly confined in its operation to the day of its passage, in adopting the practice of the state courts into the courts of the United States, could have no operation in that state. the district court of the United States, established in the state in 1803, was vested with all the powers and jurisdiction of the district court of Kentucky, which exercised full circuit court jurisdiction, with power to create a practice for its own government.

But

The district court of Ohio, it appears, did not create a system for itself, but finding one established in the state, in the true spirit of the policy pursued by the United States, proceeded to administer justice according to the practice of the state courts; or, in effect, adopted by a single rule, the state system of practice, in the same mode in which this court, at an early period, adopted the practice of the King's Bench in England. So that when tho seventh circuit was established, in the year 1807, the judge of this court, who was assigned to that circuit, found the practice of the state

courts adopted in fact into the circuit court of the United States.

It has not been deemed necessary to make any material alterations since; but as far as it was found practicable and convenient, the state practice has, by a uniform understanding, been pursued by that court without having passed any positive rules upon the subject. The act of the 18th February, 1820, alluded to in the bill of exceptions, was a very wise and benevolent law, calculated, principally, to relieve the parties to promissory notes froin accumulated expenses; its salutary effects produced its immediate adoption into the practice of the circuit court of the U. States; and from that time, to the present, in innumerable instances, suits have been there prosecuted under it. The alteration in practice (properly so called) produced by the operation of this act, was very inconsiderable, since it only requires notice to be given of the cause of action, by endorsing it on the writ, and filing it with the declaration, after which the defendants were at liberty to manage their defence, as if the note had been formally declared upon in the usual manner.

It is not contended that a practice, as such, can only be sustained by written rules; such must be the extent to which the argument goes, or certainly it would not be supposed, that a party pursuing a former mode of proceeding, sanctioned by the most solemn acts of the court, through the course of eight years, is now to be surprised and turned out of court, upon a ground which has no bearing upon the merits.

But we are decidedly of opinion, the objection cannot be maintained. Written rules are unquestionably to be preferred, because their commencement, and their action, and their meaning, are most conveniently determined; but what want of certainty can there be, where a court, by long acquiescence, has established it to be the law of that court, that the state practice shall be their practice, as far as they have the means of carrying it into effect, or antil deviated from by

positive rules of their own making. Such we understand has been the course of the United States court in Ohio, for twenty-five years past. The practice may have begun and probably did begin in a mistaken construction of process act, and then it partakes of the authority of adjudication. But there was a higher motive for adopting the provisions of this law, into the practice of that court; and this bill of exceptions brings up one of those difficult questions, which must often occur in a court in which the remedy is prescribed by one sovereign, and the law of the contract by another. It is not easy to draw the line between the remedy and the right, where the remedy constitutes so important a part of the right; nor is it easy to reduce into practice the exercise of a plenary power over contracts, without the right to declare by what evidence contracts shall be judicially established. Suppose the state of Ohio had declared that the undertaking of the drawer and endorser of a note, shall be joint, and not several or contingent; and that such note shall be good evidence to maintain an action for money lent and advanced ; would not this become a law of the contract? Where then would be the objection to its being acted upon in the courts of the United States? Would it have been prudent or respectful, or even legal, to have excluded from all operation in the courts of the United States, an act which had so important a bearing upon the law of contracts, as that now under consideration? An act in its provisions so salutary to the citizen, and which, in the daily administration of justice in the state courts would not have been called upon otherwise than as a law of the particular contract; a law, which as to promissory notes introduced an exception into the law of evidence, and of actions. It is true, the act, in some of its provisions, has inseparably connected the mode of proceeding, with the right of recovery. But what is the course of prudence and duty, where these cases of difficult distribution, as to power

and right, present themselves? It is to yield rather than encroach; the duty is reciprocal, and will, no doubt, be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our very peculiar relations, cases may occur, in which the maintenance of principle, and the administration of justice according to its innate and inseparable attributes, may require a different course; and when such cases do occur, our courts must do their duty; but until then, it is administering justice in the true spirit of the constitution and laws of the United States, to conform, as nearly as practicable, to the administration of justice in the courts of the state.

In the present instance, the act was conceived in the true spirit of distributive justice; violated no principle; was easily introduced into the practice of the courts of the United States; has been there acted upon through a period of eight years; and has been properly treated as a part of the law of that Court. But, it is contended, that it was improperly applied to the present case, because the note bears date prior to the passage of the law; and this certainly presents a question which is always to be approached with due precaution, to wit, the extent

of legislative power over existing con

tracts.

But what right is violated, what hardship or injury produced, by the operation of this act? It was passed for the relief of the defendant, and is effectual in relieving him from a weight of costs, since it gives to the plaintiff no more than the costs of a single suit, if he should elect to bring several actions against drawer and endorser. Nor does it subject the defendants to any inconvenience, from a joint action; since it secures to each defendant, every privilege of pleading and defence, of which he could avail himself, if severally sued. The circuit court has incorporated the action, with all its incidents, into its course of practice; and having full power by law to adopt it, we see no legal objection to its doing so, in the prosecution of that system, upon which it has always acted. It cannot be contended that the liabilities of the defendants, under their contract, have been increased, or even varied; and as to change, in the mere form of the remedy, the doctrine cannot be maintained, that this is forbidden to the legislative power or to the tribunal itself, when vested with full power to regulate its own practice.

Judgment affirmed with costs.

This was on a writ of error, from the High Court of Errors and Appeals of the state of Delaware. The defendants were incorporated by an act of the legislature passed in 1822, and the owners of the low grounds lying on both sides of Black-Bird Creek, between Mathew's landing and the river Delaware, were authorized to construct a dam across the creek, wherever a majority of them chose, and also to bank the low grounds, &c. The company afterwards proceeded to erect a dam in the creek, obstruct ing the navigation, and also to embank the creek.

The plaintiffs in error, being owners of

a sloop called the Sally, of 95 tons, regularly licensed and enrolled, broke, and injured the dam, for which an action of trespass, vi et armis, was instituted against them in the Supreme Court of Delaware.

The declaration being filed, the defendants below pleaded that the place where the trespass was committed was a part of the said creek: it being a public and common navigable creek, in the nature of a highway, in which the tides have always flowed and reflowed, and where the citizens of Delaware, and of all the United States, had a right to navigate, and to pass and repass at pleasure. It then aver

red the bank and dam to be wrongfully erected, so that without pulling up and destroying the piles, &c., the said defendants could not pass with the said sloop, along the said creek, and that the said defendants, in order to remove the said obstructions, pulled up, &c. as in the declaration mentioned, doing no unnecessary damage, &c. To this plea the plaintiffs below demurred, and the court sustained the demurre. This judgment was affirmed in the Court of Appeals, and the record remanded for assessment of damages. Final judgment was entered on the verdict, and it was again carried to the Court of Appeals where it was affirmed, and the cause was now brought before this court for review.

The cause was argued on the part of the plantiffs in error, by Mr. Coxe, and by the Attorney General, for the defendants.

Chief Justice Marshall delivered the opinion of the court.

The defendants in error deny the jurisdiction of this court, because, they say, the record does not show that the constitutionality of the act of the legislature, under which the plaintiff claimed to support his action, was drawn into question.

Undoubtedly the plea might have stated in terms that the act, so far as it authorized a dam across the creek, was repugnant to the constitution of the United States; and it might have been safer, it might have avoided any question respecting jurisdiction, so to frame it. But we think it impossible to doubt that the constitutionality of the act was the question, and the only question, which could have been discussed in the state court. That question must have been discussed and decided.

The plaintiffs sustain their right to build a dam across the creek by the act of the assembly. Their declaration is founded upon that act. The injury of which they complain is to a right given by it. They do not claim for themselves any right independent of it. They rely entirely upon the act of assembly.

The plea does not controvert the existence of the act, but denies its capacity to authorize the construction of a dam across a navigable stream, in which the tide ebbs and flows; and in which there was, and of right ought to have been, a certain common and public way in the nature of a highway. This plea draws nothing into question but the validity of the act; and the judgment of the court must have been in favour of its validity. Its consistency with, or repugnancy to the constitution of the United States, necessarily arises upon these pleadings, and must have been determined. This court has repeatedly decided in favour of its jurisdiction in such a case. Martin vs. Hunter's lessee, Miller vs. Nicholls, and Williams vs. Norris, are expressly in point. They establish, as far as precedents can establish any thing, that is not necessary to state in terms on the record, that the constitution or a law of the United States was drawn in question. It is sufficient to bring the case within the provisions of the 25th section of the judicial act, if the record shows, that the constitution, or a law, or a treaty of the United States, must have been misconstrued, or the decision could not be made. Or, as in this case, that the constitutionality of a state law was questioned, and the decision has been in favour of the party claiming under such

law.

The jurisdiction of the Court being established, the more doubtful question is to be considered, whether the act incorporating the Black-Bird Creek Marsh Company is repugnant to the constitution, so far as it authorizes a dam across the creek. The plea states the creek to be navigable, in the nature of a highway, through which the tide ebbs and flows.

The act of assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be en