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can only be done when the prison inspectors summon (as they are empowered to do) the circuit judge of the circuit from which he is sent, and the medical superintendent of the Kalamazoo Insane Asylum, who are thereupon to examine into his condition, and if they certify that he is not insane the governor is to discharge him.

The finding of the jury is confined to the prisoner's condition at the time of the cominission of the alleged criminal act. The indictment or information embraces and can lawfully embrace no issue except the prisoner's guilt as charged. The right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character. As suggested in People v. Marion, 29 Mich. 31, one of its substantial elements is the right of the jury to give a general verdict on the merits. Any collateral inquiry would be foreign to the issue, and as no insane person is subject to be put on trial, a finding that they had been trying such a person would be somewhat inconsistent with the notion that the trial could have been proper. The statute has avoided this error by confining their attention to the time of the offence; and while it is not competent to prevent an acquittal on a reasonable doubt of insanity, which would require a general verdict of not guilty, yet if the jury agree that the prisoner was insane, and that he would have been guilty if not so, they are undoubtedly at liberty, though they cannot be compelled, to find that fact specially. We cannot hold a special verdict or finding unauthorized, as the common law furnishes abundant precedents to the contrary. 1 Hale P. C. 38.

The questions to be considered must be determined on the assumption that the verdict itself is unauthorized.

As insanity, when discovered, was held at common law to bar any further steps against a prisoner, at whatever stage of the proceedings, it was always competent to institute an inquiry into his condition. This investigation was sometimes had by the court alone, and sometimes by aid of a jury of inquest, which is regarded as the safest and most regular practice. See 1 Hale P. C. 29 to 37 passim. In England the detention is during her majesty's pleasure, whether on an acquittal by reason of insanity, or upon an inquest. See Oxford's case, 9 C. & P. 305 ; Regina v. Goode, 7 A. & E. 536; Reg. v. Hodges, 8 C. & P. 195; Rex v. Pritchard, 7 C. & P. 303; Rex v. Dyson, 7 C. & P. 305. In Oxford's case, the jury evidently had doubts whether he had actually done the act charged, and subsequent events showed that it was not likely he was dangerous, if insane at all, yet he was never discharged. Our Compiled Laws, long before this statute, authorized the judge to conduct such an inquiry, when the jury render such a verdict (Comp. L. sec. 7957), and this is a better course.

There can be no reason to doubt the propriety of making provision to secure to such unfortunate persons protection and care, in such a way as to prevent them from injuring or being injured, if they are dangerous or in need of seclusion. The state has an ultimate guardianship over non compotes, in cases where it is necessary.

But inasmuch as such authority can only exist over those who are thus disqualified, the power of determining their condition is one of great importance, and one which especially involves judicial oversight. In this country, where all legislation must be within constitutional limits, and

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does not reach the full parliamentary range, private liberty can never be subjected to the mere discretion of any person. No one can be deprived of liberty without due process of law. Any involuntary control or seclusion is imprisonment, and that is only justifiable when enforced under valid laws. Every person has a right at all times to resort to the courts to have the legality of restraint determined, unless he is imprisoned under a valid judgment, under proceedings where he had a regular trial or hear

The present statute required the respondent to be confined until he is discharged in the manner pointed out by the act. This requires, First, the action of the prison inspectors, for whose action the statute has made no provision unless they choose. Second, the summoning of a circuit judge from any part of the state to the state prison, and the summoning of the asylum superintendent from Kalamazoo to the same place. Third, a joint examination and agreement, either being competent to balance the other, and their disagreement turning the scale in favor of imprisonment.

Ii was held in People ex rel. Att'y General v. Lawton, Judge of Probate, October 'term, 1874, that a law was not enforcible, unless it furnished adequate means to secure the purposes for which it was enacted. See also People v. Smith, 9 Mich. 193. It would be attributing more than folly to the legislature to assume that they would intentionally pass a law which would leave a sane man liable to perpetual imprisonment where he has been acquitted of crime. There is nothing in this law or elsewhere, which could compel the performance of the functions necessary to release a sane person committed to the insane asylum. The inspectors of the prison act or not as they see fit. Neither the prisoner nor his friends can compel action. No circuit judge can be compelled to perform functions not judical in that capacity ; and if he could, the law points out no means of bringing him and the medical superintendent away from their own counties at the command of a board of inspectors. The law furnishes no means of summoning and swearing witnesses, or securing the means of a fair examination, or of determining any rules of action.

But the more serious difficulty is in the nature of the proceedings themselves. In the first place the prisoner is sent into confinement without any. legal investigation into his condition at that time, when he may be perfectly sane, and when, having been acquitted, he is entitled to all the privileges of any innocent man. There may be a very long interval between the offence and the trial.

Having been so secluded, he is excluded from the right, and all others are excluded from the power, of resorting to any effectual means, or any means whatever, of securing a judicial inquiry into his sanity. Neither judge nor expert has any power under our Constitution to select his own means and process of inquiry, and pass ex parte upon the liberty of citizens. The proceedings contemplated by this statute are not only inquisitorial and ex parte, but the officers selected, who are undoubtedly as fit as any one to conduct such inquiries, have no power to act until the inspectors choose to call them. It practically leaves the liberty of the person confined to depend upon the uncontrolled pleasure of the inspectors. A more dangerous scheme, and one more entirely opposed to the constitutional VOL. II.


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provision securing to every one the protection of due process of law, could hardly be devised.

It is a result of the dangers which have been multiplied by the absurd lengths to which the defence of insanity has been allowed to go, under the fanciful theories of incompetent and dogmatic witnesses, who have brought discredit on science and made the name of experts unsavory in the community. No doubt many criminals have escaped justice by the weight foolishly given by credulous jurors to evidence which their common sense should have disregarded. But the remedy is to be sought by correcting false notions, and not by destroying the safeguards of private liberty.

The judgment must be reversed, and the prisoner discharged.

No doubt many chuurors to evidencis to be sought


(7 Leg. Gaz. 169. To appear in 21 Wall.)



1. Whilst the general maritime law is the basis of the maritime law of the United States,

as well as of other countries, it is only so far operative in this, or any country, as it is

adopted by the laws and usages thereof. It has no inherent force of its own. 2. In particular matters, especially such as approach a merely municipal character, the

received maritime law may differ in different countries without affecting the general in

tegrity of the system as a harmonious whole. 3. The general system of maritime law, which was familiar to the lawyers and statesmen

of this country when the Constitution was adopted, was intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend " to all cases of admiralty and maritime jurisdiction.” Thus adopted, it be

came the maritime law of the United States, operating uniformly in the whole country. 4. The question as to the true limits of maritime law and admiralty jurisdiction is exVol. II.]

clusively a judicial question, and no state law or act of Congress can make it broader or narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this coun

try, and on such legislation as may have been competent to affect it. 5. The decisions of this court illustrative of these sources, and giving construction to the

laws and Constitution, are especially to be considered; and when these fail us, we must

resort to the principles by which they have been governed. 6. It is settled by repeated adjudications of this court, that material-men furnishing re

pairs and supplies to a vessel in her home port do not acquire thereby any lien upon

the vessel by the general maritime law as received in the United States 7. Whilst it cannot be supposed that the framers of the Constitution contemplated that

the maritime law should remain unchanged, the courts cannot change it; they can only declare it. If within its proper scope any change is desired in its rules, other than

those of procedure, it must be made by the legislative department. 8. Semble, That Congress, under the power to regulate commerce, has authority to es

tablish a lien on vessels of the United States in favor of material-men, uniform through

out the whole country. 9. In particular cases, in which Congress has not exercised the power of regulating com

merce, with which it is invested by the Constitution, and where the subject does not in


[No. 7.

its nature require the exclusive exercise of that power, the states, until Congress acts, may continue to legislate. 10. Hence, liens granted by the laws of a state in favor of material-men for furnishing

necessaries to a vessel in her home port in said state are valid, though the contract to furnish the same is a maritime contract, and can only be enforced by proceedings in

rem in the district courts of the United States. 11. Any person having a specific lien on, or a vested right in, a surplus fund in court,

may apply by petition for the protection of his interest under the 430 Admiralty Rule. 12. Separate libels were filed in 1871 against a steamboat, for wages, for salvage, for

supplies furnished at her home port, and for the amount due on a mortgage. Held, on the evidence, that the lien for supplies had not been perfected under the state law; and, if it had been, that the libels for such supplies could not be sustained prior to the recent change in the 12th Admiralty Rule. Held, also, that the libel upon the mortgage could not be sustained as an original proceeding; but that the mortgagees, having petitioned for the surplus proceeds of the vessel, were entitled to have the same applied to their mortgage.

APPEAL in admiralty from the circuit court for the District of Louisiana.

The libel in this case was filed in the district court of the United States for the district just above mentioned, on the 10th day of June, 1871, by William Doyle and another, against the steamer Lotawana, of New Orleans, for mariners' wages. The vessel being seized, libels of intervention were afterwards filed by various parties, some for mariners' wages, some for salvage services, some for supplies, materials, and repairs furnished in the port of New Orleans, for the use of the steamer. On the 20th day of June, 1871, Catharine Rodd, administratrix, together with several commercial firms of the city of New Orleans, filed a libel of intervention by which they set up a mortgage on the vessel, given to them by the owner, on the 20th of May, 1871, and duly recorded in the custom-house on the 22d of May, to secure the payment of various promissory notes of the same date, given to said libellants by the said owner, and amounting to more than $14,000.

The steamer, up to the 16th of May, had been engaged in the river trade on the Mississippi and Red rivers, between New Orleans and Jefferson, in Texas, and was laid up for repairs at New Orleans on that day. Most of the claims for wages and supplies arose before the date of the mortgage, although some arose afterwards. The steamer was sold for $7,500, and, after deducting expenses of sale, costs, salvage, and wages of mariners (which were admitted to have preference), there remained a surplus of $4,644.42, which the district court decreed to be paid pro rata to the mortgage creditors, to the exclusion of the claims for repairs and supplies. This decree was reversed by the circuit court, on appeal; and the surplus was decreed to be paid pro rata to the claimants for repairs and supplies, to the exclusion of the mortgage creditors, the amount not being sufficient to pay either class of creditors in full. From the latter decree an appeal was taken to this court.

The principal question presented by the appeal, therefore, was whether the furnishing to a vessel on her credit, at her home port, needful repairs and supplies created a maritime lien. If it did, such lien would take precedence of a mortgage given for the payment of money generally, and the decree must be affirmed. If it did not, the decree was to be reversed, unless the appellees could sustain themselves on some other ground.

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It was also asserted by the appellees that by the law of Louisiana they · had a privilege for their claims giving them a lien on the vessel and her

proceeds, which lien, though not strictly a maritime one, the court was bound to enforce.

The case was twice argued, once at December term, 1873, by Mr. T. J. Semmes, for the appellant, and Messrs. J. A. Grow f. L. M. Day, for the appellees; and now, at this term, October, 1874, by Mr. R. Mott, for the appellant, and Mr. J. A. Grow, for the appellees, and by Mr. W. W. Goodrich, in favor of the lien for supplies furnished the vessel in her home port, and by Mr. William Allan Butler f Mr. Andrew Boardman, in opposition to such lien.

Mr. Justice BRADLEY delivered the opinion of the court.

The principal questions raised in this case were decided by this court adversely to the lien more than fifty years ago in the case of The General Smith, reported in 4 Wheaton, 438, and that decision has ever since been adhered to, except occasionally in some of the district courts. A solemn judgment relied on so long by the commercial community as a rule of property and the law of the land, ought not to be overruled except for very cogent reasons. If, however, in the progress of investigation, and with the new lights that have been thrown upon the whole subject of maritime law and admiralty jurisdiction, a more rational view of the question demands an adverse ruling in order to preserve harmony and logical consistency in the general system, the court might, perhaps, if no evil consequences of a glaring character were likely to ensue, feel constrained to adopt it. But if no such necessity exists, we ought not to permit any consideration of mere expediency or love of scientific completeness to draw us into a substantial change of the received law. The additional security which has been extended to bills of sale and mortgages on ships and vessels since the passage of the act for recording them in the customhouse; and the confidence with which purchasers and mortgagees have invested money therein under the existing course of decisions on this subject, have placed a large amount of property at undue hazard, if those decisions may lightly, or without grave cause, be disturbed.

The ground on which we are asked to overrule the judgment in the case of The General Smith is, that by the general maritime law those who furnish necessary materials, repairs, and supplies to a vessel, upon her credit, have a lien on such a vessel therefor, as well when furnished in her home port as when furnished in a foreign port, and that the courts of admiralty are bound to give effect to that lien.

The proposition assumes that the general maritime law governs this case, and is binding on the courts of the United States.

But it is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. In this respect it is like international law or the laws of war, which have the effect of law in no country any further than they are accepted and received as such; or, like the case of the civil law, which forms the basis of most European laws, but which has the force of law in each state only so far as it is adopted therein, and with such modifications as are deemed expedient. The adoption of the common law by the sev- · eral states of this Union also presents an analogous case. It is the basis

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