Seavey et al. v. Seymour.

When the Constitution was ordained, it was declared by the framers that one of the purposes for which it was established was to secure the blessings of liberty; and it also provides that the privilege of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it; that the trial of all cases of impeachment shall be by jury; that no person shall be held for a capital, or otherwise infamous, crime, unless on a presentment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. Very strong doubts are entertained whether Congress could constitutionally pass a law giving the exclusive power to the Secretary of War to hear and determine such cases as those mentioned in the petitions before the court; but it is quite unnecessary to determine that question, as the court is of the opinion that the provision which requires the Secretary of War to discharge such persons, when application is made to him, is in no respect repugnant to § 14 of the Judiciary Act.

Decided cases are referred to which give some support to the opposite theory; but it is not deemed necessary to give them much examination, as the question, in the judgment of the court, must turn upon the construction of the two acts of Congress previously mentioned, when considered in connection with the act under which the petitions in this case were filed. Applications for discharge in such cases may be made by such minors to the Secretary of War; and the provision is, that he shall order a discharge if it appears upon due proof that the applicant is in the military service without the consent, either express or implied, of his parent or guardian; but there is not a word in the section to show that the parent or guardian may not apply to the associate justice of the Supreme Court, or to the circuit judge, or to the district judge for the district, for the same relief which the Secretary of War may grant.

Repeals by implication are never favored. On the contrary, the rule is that there must be a positive repugnancy between the provisions of the new law and the old to work a repeal by implication, and even then the old law is only repealed to the extent

Seavey et al. v. Seymour.

of such repugnancy. Wood v. U. S., 16 Pet. 363; U. S. v. Walker, 22 How. 311; 2 Dwarris on Stat. 533.

Suppose it was otherwise, and that the theory that the authority given to the Secretary of War to discharge such minors is inconsistent with § 14 of the Judiciary Act, still the conclusion would not benefit the appellant, as the petitions in these cases were filed under the act passed three years subsequent to the act which gives that authority to the Secretary of War; and, by the act last mentioned, power to grant writs of habeas corpus, in all cases where any person may be restrained of his or her liberty in violation of the Constitution or any treaty or law of the United States, is expressly given to the several courts of the United States, and to the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority conferred by the prior acts of Congress. 14 Stat. at Large, 385.

Such an enactment evidently contemplates a judicial remedy, and indeed the writ of habeas corpus is everywhere regarded as a judicial writ, and the only one which is designed to procure liberation from illegal confinement.

By all the forms, the writ is directed to the person detaining another, and commands the person to whom it is directed to produce the body of the prisoner, or person detained, together with the day and cause of his capture and detention, to submit to and receive whatsoever the court or judge awarding the writ may determine in that behalf.

Grant that, and it is still insisted by the appellant that the decree of the District Court discharging the petitioners is erroneous, because the return shows that the petitioners are awaiting trial as deserters; but the decisive answer to that objection is, that no such defence was set up in the District Court, nor was any evidence introduced in that court to support the allegation of the return.

Where the petition is filed and the case heard in the District Court, the case can only be removed into the Circuit Court by appeal, and in that state of the case the jurisdiction of the Circuit Court is wholly appellate.

Seavey et al. v. Seymour.

Power to re-examine the decree of the District Court is all the power in such a case which is possessed by the Circuit Court; and such re-examination must be made upon the same evidence as that introduced in the District Court, except in case where competent evidence was offered and excluded which should have been admitted. Errors of the District Court may be corrected; but it was not the intention of Congress, in providing for an appeal, to give the party a new trial, unless the same should be ordered by the appellate court for some error committed by the District Court.

Two irregularities are noticed in the proceedings which were not the subject of remark by either party at the hearing. Subsequently they were discovered by the court, and the attention of counsel was invited to the subject, with leave to each party to file an additional brief. Since that time, briefs on the one side and on the other have been received, and the subject attentively considered.

One of the errors is in respect to the return, which is not signed by the person to whom the writ is directed, nor does it contain any explanation in that behalf. Probably the returning officer is the commanding officer of the military post, and the proper one to make the return, but the necessity for any further inquiry into the matter is obviated by the waiver of the objection by the petitioners.

Petitioners in such a case may deny any of the material facts set forth in the return, or they may allege any fact to show that the detention is in contravention of the Constitution or the laws of the United States. Instead of waiting till the return was made, and then making their answer to it, they set forth their response to it in their petition, but inasmuch as the allegations of the petitions are full and explicit to the point, and are also under oath, the court is of the opinion that the objection ought not to prevail in the appellate court, especially as it was not made in the District Court, nor in the Circuit Court, until the attention of counsel, subsequent to the hearing, was called to it by the appellate court.

The decrees of the District Court are respectively affirmed.

Killam v. The Schooner Eri.

WENTWORTH KILLAM, Libellant, v. THE SCHOONER ERI, OBED B. BOYCE et als., Claimants and Appellants..

Maritime liens are founded in commercial usage, and the proper remedy to enforce the same, whether arising from a marine tort or contract, is by a suit in rem commenced where the res is found.

Jurisdiction in rem is exclusive in the District Courts, but the suit may be instituted in the District where the res is found, irrespective of where the injury for which satisfaction is sought occurred.

A general allegation of negligence in a collision case is, on the part of the libellant's vessel, not sufficient to constitute a valid defence even in pleading. Specification as to what was done or omitted and caused the accident must be made. A vessel in the evening was lying-to on the starboard tack, with her helm bard a-port, with a competent lookout properly stationed, and with signal-lights fully displayed as required by law. Another vessel was discovered directly ahead. The order was given not to change the helm, and a collision took place. Held, that no negligence could be charged to those on board the vessel first named for not keeping her to her course. Inevitable accident in cases of collision is where a disaster takes place, occasioned exclusively by natural causes, without any fault on the part of the owners or those intrusted with the management of either vessel.

Two vessels were lying-to just prior to a collision, which took place in the night, — one with competent lookout properly stationed, the required signal-lights, on the starboard tack, with helm hard a-port; the other had her red light burning brightly. Just before the collision the green light was burning, but not as brightly as it should have done. In the attempt by an officer to turn it up it went out. It was handed to a seaman, and was only seen on the starboard side by the master when the two vessels were close together. No person was specifically appointed or stationed as a lookout. All the crew were abaft of the mainmast just before the collision. A collision ensued. Held, not an inevitable accident, but that the vessel last referred to was in fault. The rules of navigation require seasonable precautions to avoid danger in collision cases. The ground upon which the vessel in fault in this case was clearly liable was the absence of an appointed and properly stationed lookout.

ADMIRALTY appeal. Libel in rem in a cause of collision. Decree in the District Court for libellants. Decree affirmed. Compensation was claimed by the libellant as master, in behalf of the owner of the brig Gilliat, on account of injuries received by the brig in a collision which occurred on September 9, 1869, between the brig and the schooner Eri, whereby the former was disabled and greatly damaged.

Heavily laden with iron, the brig was bound on a voyage from Ardrossan in Scotland to Portland in this district. The schooner was employed in the coasting-trade, and was also bound to Portland to deliver a cargo of staves which she had shipped at Nor

Killam v. The Schooner Eri.

folk in the State of Virginia. Both vessels had proceeded in safety until they arrived off the coast of Maine, a day or two previous to the disaster. They both encountered a severe gale the day prior to the collision, which prevented the schooner from coming into the harbor, and caused considerable damage to the sails of the brig as she approached the coast, making it necessary, in the judgment of the master, to reef the main-trysail to keep the vessel to the wind. He lost during the gale the maintopsail, and the upper and lower fore-topsails, but having reefed and set the trysail, and tried the pumps, he sent one watch below at a quarter before one o'clock, and went below himself for a brief period. On his return to the deck he heard some one forward" singing out." His account of the matter was that at first he did not understand what it was, but that he immediately went on to the top-gallant forecastle, and while there discovered that it was a vessel directly ahead of the brig. Inquiry was at once made by him of the man at the wheel how the helm was, and the witness testifies that he received for reply that it was hard a-port, and that he gave directions that it should not be changed without his orders.

Although the schooner was exposed to the same gale of wind, she rode it out without much if any injury. Some of her deck load was washed overboard, and three or four thousand staves were lost between eight and ten o'clock. Before ten o'clock the violence of the gale abated, but there was still a strong wind, and the schooner remained "hove to " under double-reefed mainsail, the master not feeling safe to make sail on the vessel on account of the sea and the wind. Attempt was made near midnight to work the pumps, but the position of the deck load had been so changed by the sea during the gale that the men could not use the brakes. During that period the master was at the wheel, but the mate with all hands was forward, engaged in the attempt to work the pumps. Subsequently the mate came aft and took the wheel, and the master went forward as far as the middle of the deck, when on looking ahead he saw a light. Unable at first to determine what kind of light it was, he called the pilot, and directed his attention to it, who at once said it was a red