Jennings v. Brig Perseverance

Though I was filent on the occa-fion, I concurred in' opinion with Judge Wilfon upon the fe-Cond rule laid down in Wifcart v. D’Auchy; and, of courfe, the court were divided, four to two, upon the decifion. I thought, indeed, that excluding a confideration of the evidence ( which, virtually, amounts to a ftatemenf of fails) Was-Shutting the door againit light and truth ; and was,leaving the property of the country too much to the difcretion and judgment of a'fingle Judge. But conceiving myfelf bound by the rule, and that, in fome ihape, the fails.mull be made to appear on the record, I have always fince thought it my duty to-make a ilatement, where the counfel would not, or could not, agree in forming one.

As to the prefent point, though there is no exprefs determination, it was the/ubjeil of difcuffion among the Judges ¿t their chamber; an opinion was formed, but not delivered, by the fame majority, that eftabliihed the fecond rule-in Wifcart .verfus D’Auehy; and the reafoñing of the Chief Juitice in fupport of that rule, went clearly to. this cafei I do not, there* fore, think, that any new argument cari be necefiary. However difpofed I might have been originally to give the moil liberal conftrudtion to the a<ft of Congrefs, the decifion of the Court precludes me from confidering the evidence, at this time, • as'a ilatement of fadts; and if there is no ilatement of fadls, the confequence feems naturally to follow, • that there can be ■ no error. '