Concurring opinion of
Lewis, Associate Justice.It is insisted by the appellee that this cause must be heard in this court upon the same evidence on which it was heard in the district court.
If this court occupies the position of a circuit court of the United States when exercising jurisdiction in admiralty, it is competent to hear further proofs.
The question as to the status of these courts has been much discussed.
It seems, however, that the late case of Clinton vs. Englebrecht has definitely settled this question, wherein it is held following the case of Am. Ins. Co. vs. Canter in 1 Peters, that these courts are not United States courts within the meaning of the third article of the constitution in which the judicial power therein conferred can be deposited; but that they are legislative courts ordered by the congress of the United States, in virtue of the clause in the constitution which enables congress to make all needful rules and regulations respecting the territories of the United States.
Hence when congress in any enactment speaks of circuit and district courts of the United States, such act has no reference to the courts of the territories.
It follows then that the judiciary act of 1789 as well as all other acts of congress conferring jurisdiction upon United States courts aud defining the manner of its exercise, has no application to the territorial courts, unless made so by special act.
Congress has taken, this view of the question, for we find that by special statute, the fee bill of 1812 of the'United States courts was made applicable to the courts of the territories. 1 Brightly, 272. So also as to authentication of Records, 2 U. S. Stat., 109. So in divers- sections of the revenue and national currency act.
*386It follows then that we must loot to the provisions of the organic act and such other legislation by congress upon that subject as has been made applicable to the territories, in order to ascertain the jurisdiction of this court and the manner of its exercise.
Section 9 of the organic act, provides that the judicial power of the territory shall be vested in a supreme court, district courts, probate courts, and justices of the peace. That the jurisdiction of these several courts, both original and appellate, shall be as limited by law.
Provided, however, that the district and supreme courts shall possess chancery, as well as common law jurisdiction.
That writs of error, bills of exceptions and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court under such regulations as may be prescribed by law.
That no trial by jury shall be allowed in the supreme court.
That writs of error and appeals shall be allowed from the final decisions of the supreme court to the supreme court of the United States in the same ma/rmer and under the same regulations as from the circuit courts of the United States.
That each of the district courts shall have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States and laws of the territory as is vested in the circuit and district courts of the United States, and that writs of error and appeals shall be made in such cases to the supreme court of the territory in the same manner as in other cases.
Subject to the above limitations the territorial legislature may fix and determine the original and appellate jurisdiction of these courts. .
That is to say, they may say in what cases appeals may be allowed from the inferior courts to the district courts; may determine what courts shall have original jurisdiction and what appellate; must allow writs of error and appeals in all cases *387from the district courts to the supreme court, and provide the same shall be made.
May confer on the several courts such jurisdiction, civil and criminal, under the territorial laws as they deem proper, not inconsistent with the provisions of the organic act, or the national constitution.
Congress has made no attempt to provide a practice for these courts, nor to regulate the time or manner of taking appeals from the district to the supreme court.
The supreme court of the United States, however, have held that the rules of practice in equity for the. courts of the United States are applicable to the courts of the Territories. Orchard vs. Hughes, 1 Wall., 73; and that court by rule 92 has accorded to the territorial courts sitting in equity certain powers therein conferred on United States courts.
The chief justice, in delivering the opinion in Clinton vs. Englebrecht, 13 Wall., declares that there is nothing in that decision inconsistent with the case of Orchard vs. Hughes.
The supreme court of this territory has also held that the chancery practice of the United States courts is applicable to these courts.
Now no attempt has been made to regulate the admiralty practice of the district courts of the territory either by the territorial legislature or congress. In the absence of any provisions on this subj'ect we would be left to the general law maritime. But if the district courts sitting in equity are governed by the equity practice of the United States courts, why not so in admiralty cases — in fact the argument is stronger; for the courts of the United States have exclusive jurisdiction in ad - miralty, and it would seem reasonable that when congress conferred upon the territorial courts the same jurisdiction that is exercised both by the circuit and district courts of the United States, that these courts, when exercising any such jurisdiction, ought to be governed by the rules of practice adopted for said courts. If this be-the correct view.of the matter, then we.have have a uniform practice, admiralty in all the courts exercising such jurisdiction..
*388But there is no provision made in the admiralty rules for an appeal from the district to the supreme court of the territory, nor has congress made any provision therefor; hence such appeal must be made in accordance with the provisions of the statutes of the territory.
How the laws of the Territory provide that the practice and proceedings in chancery causes shall be as provided by the laws of the United States and rules in equity adopted by the Supreme Court of the United States.
Under these laws and rules there may be some question as to the exact mode of getting a case to this court on appeal, but there is no doubt but that when here, it is to be tried de novo on .the same pleadings and evidence upon which it was heard in the Court below.
In my view, then, a case in admiralty must get here and be heard in this Court in the same manner as a cause in equity.
Doubtless the legislature will correct these matters as soon as their attention is called to the uncertainties with which they are surrounded.