Dissenting opinion by
Greene, Associate Justice.This motion is to strike from the files certain depositions filed by appellant for his use on the hearing, and also a certain deposition of one Hilton taken in the Court below and excluded in that Court. They were none of them used before the District Court, and are sought to be introduced here on appeal, under the civil law rule, non probata probandA.
For the purposes of this motion, it must be assumed, that there is in this Court an appeal pending wherein the motion is made.
To these depositions, it is objected generally, that this Court has no jurisdiction to entertain new proofs; and against this objection, two main points are made: First, as regards Hilton’s deposition, that appellee, by stipulating that the deposition may be used on appeal subject to all objections to the competency and relevancy of the testimony, has precluded him- . self from objecting to its introduction; and, second, as regards *389all the depositions, that in appeals -in admiralty in this Court new proofs are admissible.
As to the first point, I am of opinion, that by his stipulation, the appellee must be held to have consented, as fully as a party litigant, merely as a party litigant, can consent, that the deposition so far as the testimony in it shall be pronounced competent and relevant may be used here. By competency of anything, I understand its legal capacity or fitness for the function which it is called upon to fulfill. Thus we speak of the competency of testimony, witnesses, courts. The function of testimony is to prove facts; of witnesses to testify; of courts to take judicial cognizance. I do not understand that any question of competency of testimony any more than of relevancy can arise, where no testimony at all is admissible. Competency should not be confounded with admissibility. The evidence contained in this deposition, tried by the rules of law for discriminating between good and bad evidence may be perfectly good, and therefore perfectly competent, and yet this*Court may have no jurisdiction to hear it. The testimony may be competent to prove the facts, the Court incompetent to receive the testimony. The question of admissibility by reason of competency of the Court must be determined before the question of admissibility by reason of competency of the testimony can arise.
But while of opinion that appellee has, as far as by stipulation he C9uld, precluded himself from making here his general exception, I think, nevertheless, that he can make it. For he could so stipulate. He was powerless to stipulate against the course or judisdiction of this Court. And if admission of new proof be contrary, as he contends, to the course of this Court, his stipulation in that particular is absolutely void. It is as if he had made none. ' This Court’s jurisdiction and •course are fixed by reasons of public policy, and cannot be varied, without the lawfully expressed consent of the people. An illustration may be found at common law. A judgment in favor of a party is so conclusively presumed to have, as a record contract his assent, that he cannot, in general, be heard to ob*390ject to it on error, and yet it,is well settled that by reason of a judgment being in his favor a party is not estopped from objecting by writ of error that it is' contrary to the lawful course of the Court. The law is the highest compact, and no man can ever be precluded from asserting and insisting upon that compact, and disregarding all his words, writings, deeds and records to the contrary. Into an agreement which he has no power to mate, he can never have infused any power to bind him.
"Whether, then, the objection of appellee to this deposition be regarded as an objection to the competency of the testimony, or to the competency of the Court, it can be made. In the one aspect, it can be made under, in the other notwithstanding, his stipulation. I proceed, therefore, to discuss appellant’s second point, and to inquire whether in appeals in admiralty to this Court new proofs are admissible.
In advancing to the solution of this problem, certain obviousponsiderations present themselves at the outset, and justly claim the right to accompany and guide the mind to its conclusions. Such considerations are the following: That the peculiar jurisdiction and course of a court which taires cognizance of a particular class of subject matter, must be presumed to be founded in public policy and the fitness of things; that the bare grant to a court of power to taire cognizance of a class of cases of peculiar jurisdiction invests that Court with the jurisdiction and course appropriate for the disposition of those cases; and that, such appropriate jurisdiction and course being presumed founded in public policy, no departure therefrom is to be deemed intended by any statute, unless the statute (which is the measure of changing public policy,) plainly intends the departure.
The fundamental statute, under which this Court lives and moves, is the organic act of the Territory. That act, in its 9th section, creates the Territorial courts. It vests in them “the judicial power of the Territory.” And by “the judicial power of the Territory” is to be understood, all that judicial power proper and necessary to be exercised, in order to administer and enforce throughout the Territory the laws, civil and criminal, from time to time existing over it. This-judicial power *391must include judicial power in admiralty cases, for undoubtedly this Territory has never since its acquisition been destitute of admiralty laws, under which such cases might arise. American Ins. Co. vs. Canter, 1 Pet., 511.
By a subsequent clause of the section, the jurisdiction of the several courts, both appellate and original, are to be “as limited by law.” It matters little for the interpretation of the act, whether the phrase “by law,” as occurring here and in many other places in the statute, be held to mean by Territorial legislation, or to mean simply, what it says, by “law;” for the law which will in fact limit, will be the laV applicable, whether law, of rightful Territorial, or paramount Federal, legislation.
The only limitation by Federal legislation, to the jurisdiction of this court in admiralty, of which I am aware, is in another clause of the same section. This limitation is indirect, but positive, and operates to exclude all original jurisdiction. But, for our present purpose, it is sufficient to show the exclusion as regards civil causes. The clause provides, that “each of said District Courts shall have and exercise the same jurisdiction in all cases arising under the constitution of the United States and the laws of said Territory, as is vested in the Circuit and District Courts of the United States.”
A case arises whenever the application of the law to a particular set of facts is necessary. It cannot arise under any particular law, or number of laws, except when without the law it could have no existence. It, arises under the law which is to be applied to adjudicate the case. See Am. Ins. Co. vs. Canter, 1 Pet., 511, and Letter Dan’l Webster to Berrien, Jan. 14, 1842.
It is impossible, that any case should arise in this Territory, unless under the constitution and laws of the United States, or under the laws of the Territory. No case can arise, unless under some law. No other law than those mentioned exists here. An admiralty civil cause cannot arise under the laws of the United States. (Am. Ins. Co. vs. Canter, 1 Pet., 511.) It must, therefore, arise if at all under the laws of the Territory. “The laws of the Territory” are all laws, other *392than laws of the United States written and unwritten, in force for the time being over any part, or parts, or all of the Territorial" area. Admiralty law prevails here now, and was in force here before the Territorial government at present existing was organized. It was here before the Federal constitution or statutes were. They found it here.
Taking now the constitution of the United States, article III., section 2, paragraph 1 and the laws of the Territory together, we find that under them certain cases — cases of admiralty and maritime jurisdiction among others — may arise, of of which in the States jurisdiction is vested in circuit and district courts of the United States. In all cases so arising, the district courts of the territory are to “have and exercise the same jurisdiction” “as is vested in the circuit and district courts of the United States.” Manifestly, “the same jurisdiction” can only be exercised in the same cases in which circuit and district courts of the United States can exercise jurisdiction; for jurisdiction in other cases would be a jurisdiction not “the same.” Plainly, also, in all cases, of which jurisdiction is vested in circuit and district courts of the United States, and which may arise under the constitution of the United States and the laws of the territory, the jurisdiction exercised by territorial district courts must be “the same” — no greater, no less, no different. District courts of the United States have “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.” (Act 24, Sept. 1789, §9, 1 Stat., 76.) Territorial district courts, having'“the same jurisdiction” in civil causes of admiralty and maritime jurisdiction” arising “under the constitution of the United States and the laws of the territory,” have, therefore, “exclusive original cognizance” thereof.^ The exclusive original cognizance being thus vested in the territorial district courts, the jurisdiction of the .supreme court is limited to be appellate.
As if to ensure the exercise of this appellate jurisdiction,, it is provided, in the same section 9 of the organic act, that. “Writs of error, bills of exception and appeals shall be allowed in all cases- from the final decisions of said district courts to the *393Supreme court, under such regulations as may he prescribed by law,” with the single qualification, that “in no case removed to the supreme court shall trial by jury be allowed in said court.” The qualifying clause seems to have been inserted ex puncto ccmtionis, that there might be no mistake of power to introduce a jury into the appellate court; for it is to be remembered, that in one at least of the States, in a peculiar statutory kind of appeal so-called, trial by jury in the appellate court takes place, and that in the case of The United States vs. Wonson, (1 Gall., 5,) it was contended that in a U. S. statute giving appeal,, the word “appeal” was to be construed to embrace common law cases, and to authorize trial by jury. If I understand the meaning of the entire provision, Congress intended by it to fix in the supreme court of the territory a certain jurisdiction, or range of jurisdictions, beyond the power of the territorial legislature to change or diminish it, and at the same time to leave the territorial legislature free, by law not inconsistent with these provisions and other laws of Congress, to regulate the taking and conduct of appeals, exceptions and writs of error. The “writs of error,” “bills of exception” and “appeals” — things technically known to the law — “shall be allowed in all oases;” an absolute right of review, by proceedings of wellknown outlines, natures and effects, is guaranteed parties in all cases, and vested beyond 'question in the Supreme Court. Something having definiteness and substance is secured to the court and to parties before it by this language; and whatever definite and substantial is so secured is put beyond the power of the territorial legislature, to deny, alter or curtail. If, under the power to regulate, there is intended to be given, or is left, to the territorial legislature any power to declare what the supreme court shall take jurisdiction of, or what sort or amount of jurisdiction it shall exercise, when a case from the district court gets within its reach, or that it shall apply to any case of one kind of jurisdiction (as of admiralty) being before it, strange principles, procedure or usages, altogether new, or belonging to a distinct kind of jurisdiction (as of chancery or common law), then Congress has in one and the same form of words secured *394to the supreme court a certain jurisdiction and to parties certain rights, and given to the territorial legislature the power -to make that jurisdiction nugatory and those rights unavailing. I am constrained to think, that this provision with its imperative phraseology, assures to an appellant, not whatever the territorial legislature may be pleased to call an appeal, but an appeal known to chancery if the case be in chancery, an appeal as known to admiralty if the case be in admiralty, with all the benefits growing out of, and incident to, such an appeal in its appropriate forum.
That clause of the organic act, which I have shown to give the Territorial District Courts exclusive original jurisdiction in admiralty civil causes, occurs subsequent to the one I have just been considering, and, after conferring on District Courts (as we have seen) the same jurisdiction in certain cases as is vested in Circuit and District Courts of the United States, goes on to provide, that “writs of error and appeal in all such cases shall be made to the Supreme Court of said Territory the same as in other cases.” It seems to me that Congress did not intend by this to limit or define the jurisdiction or course of the Supreme Court; but only to regulate the making of writs of error and appeal in certain cases from District Courts. By this provision, may have been intended one or more of four things: "Either, first, that no different mode of procedure' is to obtain in getting such cases before the Supreme Court from what obtains 'in other cases; or, second, that writs of error and appeals in such eases as well as in others are to be allowed “under such regulations- as may be prescribed by law;” or, third, that in such •cases as well as in others appeals and writs of error are to lie; ■or, fourth,- that in such cases, as well as in others, appeal and writs of error shall be made “ to the Supreme Court of the Territory.” The ambiguity at first view is so glaring as "to perplex the .choice. But on mature consideration, I incline, contrary to my first -.impressions, to take the fourth supposed meaning to 'be'the'true one. And-for these reasons: First, had Congress desired to make uniform practice for writs of error and appeals, .it would have.said-so. This.clause is ineffectual to express or *395accomplish such a desire; for it leaves the Territorial legislature, in all other cases aud therefore in all these too, free to prescribe as many different times and modes of taking appeal and errors, as there may be amounts in controversy or kinds of rights or property involved. Second, if Congress by this provision intended merely, that writs of error and appeals in these eases should lie, or should be made under regulations to be prescribed by law, then the provision was uselessly inserted, because but a repetition of what had already been provided. Third, the provision is necessary to make clear the practice when a District; Court exercises the same jurisdiction as a Circuit Court of the United States, and it does not seem to be necessary for any other purpose. From Circuit Courts of the United States, error and appeals lie direct to the Supreme court of the United States. From a District court of the Territory exercising the jurisdiction of a Circuit court of the United States, error and appeals are to be only to the Supreme-court of the Territory. Had this not been expressed, one might-plausibly have maintained, that the Supreme court of the United States was the proper court of review for final decisions of the- ■ District court acting as a United States Circuit court. Like-, wise, it might have been argued, that when the Territorial District court exercised the same jurisdiction as a District court of the United States, there being no acting United States Circuit court distinct from, and Superior to, the Territorial District court, appeals and error lay direct to the Supreme court of-the United States. Hence, it was necessary, in the organic act-to say, that “Writs of error and appeals in all such cases shall be made to the Supreme court of said Territory the same as in other cases.”
This provision, then, is not intended to provide, what- the writ of eigor or appeal shall be, or what by them shall be carried up, or even- how or when they shall be made, but- only that they shall be made to the Supreme court of the Territory. • It throws no-additional light upon what the jurisdiction or course of this court is upon appeals in admiralty.
I have now reviewed all the provisions of the organic act,. *396which in my opinion need consideration, to enlighten us as to the jurisdiction and course of this court in civil causes of admiralty jurisdiction; and I am not aware of any subsequent law of congress on the subject.
I conclude, that this court has by grant and limitation contained in the organic act, jurisdiction of appeáls in civil cases of admiralty and maritime jurisdiction, and has no other jurisdiction of such cases. The grant of jurisdiction of such appeals necessarily endows this court for the sake of such appeals with all the jurisdiction and course belonging to an appellate court of admiralty. It is within the jurisdiction and in accordance with the course of such a court, and of this court as such a court, to admit new proofs. Hawthorne vs. U. S., 7 Cr., 107; The San Pedro, 2 Wh., 123, 3 Wh., 78; The Samuel, 3 Wh., 77; The Mabey, 13 Wall., 738-741; Rose vs. Himely, et al., Bee R., 313; United States vs. Wonson, 1 Gall., 5; Anon, 1 Gall., 22.
Again, an appeal in civil cases of admiralty and maritime jurisdiction, is by the organic act, in most positive, language, granted to suitors, and the duty of entertaining it imposed upon this court. Such an appeal is a thing of well defined substance. It puts the case in the appellate court as a case to be heard de novo according to the course and usages of courts of admiralty, (5 Cr. 282, 283, and authorities there cited,) open for the introduction of new proofs as may be just and equitable. (See cases cited supra.) There is no other proceeding or thing in admiralty that is known by the name of “appeal,” and if congress, in giving an appeal in admiralty causes, did not mean this, it is impossible to tell what it did mean until it supplies a definition. Until a better definition is given, it is safe to rely on that which the civil law gives, and has been accepted and acted upon by all the appellate courts of admiralty in this country from the beginning.
It may, possibly, be urged that the word “appeal” is used in the passage I have quoted from the organic act, in a general sense, and merely to indicate appellate jurisdiction. But I am *397satisfied, that this cannot be successfully maintained. The word is used, to my mind, clearly in a technical sense. It is continually coupled, and by coupling contrasted, with a writ of error. And as congress is certainly talking technical language, when it says “writs of error, bills of exception,” I reasonably conceive it still to be speaking technically, when it adds, “and appeals.”
"What congress has given, it has not authorized the Territorial legislature by regulations to take away. It has given an appeal in admiralty. The allowance of the appeal may be regulated by the Territorial legislature, provided the regulations do not derogate from the very nature and substance of the thing given. But the nature and substance of the appeal in admiralty is to remove the whole proceedings, and to re-open the pleadings, the facts and the law. It is, therefore, in my opinion, immaterial to inquire, whether Territorial legislation favors or forbids introduction of new proofs on appeals. Whatever Territorial legislation may have been, it cannot have taken from this court jurisdiction to receive new proofs in this cause. The power given by the organic act to the Territorial legislature to limit the jurisdiction of the courts and to regulate the allowance of appeals and writs of error, is not operative to enable the legislature to limit or to regulate contrary to what is fixed and assured by the same organic act.
If any of the foregoing views be inconsistent with any of the decisions of the Supreme court of the United States, the inconsistency is below the mimimmn visihile of my mind.
The Oregon decision of Cutter vs. The Steamship Columbia, etc., (Oregon, 101) is, I acknowledge, flatly opposed to my own conclusions. That case comes with the prestige of association with great names, but bears no badge of careful consideration. Great Homer sometimes nods.
Objection has been made to one of these depositions, that it was obtained by fraud on the part of appellant. The fraud sufficiently appears from the affidavits read, and the deposition should be suppressed. The deposition of Hilton should, in my opinion, conformably to the foregoing views and the stipulation of the parties, be admitted. The remaining depositions *398should not he stricken from the files on the ground that new proofs are inadmissible. When the appellant offers to read them he may, however, possibly be obliged to show preliminarily, that there is some good reason for their first appearance in this court.
The motion, in my opinion, so far forth as it concerns the deposition obtained by fraud should be allowed; so far forth as it concerns the other depositions, it should be denied.
Motion for leave to introduce further proofs.
Opinion by
Jacobs, Chief Justice.A majority of this court has already decided that this cause must be beard here on the testimony and other proofs taken in the District court and embodied in the record sent up here duly certified. Since so deciding, so far from having heard reasons sufficient to change our convictions, those convictions have been strengthened by further investigation and reflection. We concede that the question is a novel one, and not entirely free from doubt. But one decision has been produced exactly in point, and that is the Oregon decision before alluded to by us. 1 Oregon, 101.
But suppose we have mistaken the law, does it follow that the defendant has an absolute right to introduce any kind or species of testimony here, without making a showing either of its kind or the necessity of its first introduction here? We think not. If he can^then he can seleet his own tribunal in-which to make his defense. In fact it is claimed, and the claim rests upon the same basis, that he cannot make what proof he-sees fit here, but he can allege what he may deem fit in the first instance here without showing any reason why it was not done in the District court. He claims it as a matter of right,, and as a matter over which this court can exercise no discretion. If this be so, what becomes of the exclusive original cognizance-of all civil causes of admiralty and maritime jurisdiction given to the District courts by the act of congress of Sept. 2i, A. D., 1789? We are of the opinion, that he must not only move this-court for leave to introduce further proofs here but that, he-*399■must make a showing satisfactory to the court of the necessity of their first production here.
As no showing whatever has been made, we feel ourselves compelled to deny this motion on this ground if no other existed. And it is so ordered.