Opinion of the Court.

justice. There must be a sound discretion to be exercised by the court. If a case of real doubt arise, a just judge will not fail to relieve his own conscience by submitting the fact to a jury."

In Bonds v. Tennessee (1827), Martin & Yerger, 142, the accused was convicted of the crime of murder, and upon being led to the bar and asked by the court if he had anything to say why sentence of death should not be pronounced against him, though his counsel alleged that he was at the time a lunatic, and that sentence could not be passed upon him, and offered to plead his lunacy in bar of the sentence, and further demanded of the court that a jury be called to try the issue of fact arising upon the plea. But the court, upon the inspection of the prisoner and upon consideration of the case - because nothing was shown to render it probable that the defendant was a lunatic, or to make that matter doubtful — refused to allow the prisoner his plea aforesaid, and denied him the privilege of a jury to try the question of his sanity or insanity, and passed upon the accused the sentence of death. In support of his claim that the right to have a jury try the plea of insanity was absolute, and that it was not a matter of choice or discretion with the court to deny the application, counsel for the accused relied upon a statement made in 1 Chitty Cr. Law, 761, to wit, that "The judge may, if he pleases, swear a jury to inquire, ex officio, whether the prisoner is really insane, or merely counterfeits; and, if they find the former, he is bound to reprieve him till the ensuing session." But the reviewing court said: "The meaning of this passage, giving it a reasonable construction, must be that, if upon the question made, the judge is not satisfied, or has doubts, he may call in to his assistance the aid of a jury, and submit the matter to them. The law on this point is more fully stated in 1 Hawk. P. C. p. 3, in the notes, where it is said: 'Every person of the age of discretion is presumed of sane memory, until the contrary appears, which may be, either by the inspection of the court (1 Hale, 33; Tr. per pais 14; O. B. 1783, No. 4); by evidence given to the jury, who are charged to try the indictment, (3 Bac. Abr. 81; 1 Hale, 33, 35, 36; O. B. 1784, No. 283,) or,

Opinion of the Court.

being a collateral issue, the fact may be pleaded and replied to ore tenus, and a venire awarded, returnable instanter in the nature of an inquest of office. (Fost. 46; Kel. 13; 1 Lev. 61; 1 Sid. 72; 4 Comm. Appen. sec. 3.) And this method, in cases of importance, doubt or difficulty, the court will, in prudence and discretion, adopt. (1 Hale, 35.)' From this it appears that inspection by the court is one of the legal modes of trying the fact of insanity, and nothing appears in the record of this case to show that the discretion of the court, in adopting the mode pursued, was erroneously exercised. This court, therefore, is of opinion that there is no error in the matter of the first bill of exceptions." (In making the foregoing quotation we have corrected what seem to be typographical errors in the extract from the marginal note to section 4, chapter 1, book first of Hawkins' Treatise, conforming it to the note as found in the sixth edition, by Leach.)

It being demonstrated by reason and authority that at common law a suggestion made after verdict and sentence of insanity did not give rise to an absolute right on the part of a convict to have such issue tried before the court and to a jury, but addressed itself to the discretion of the judge, it follows that the manner in which such question should be determined was purely a matter of legislative regulation. It was, therefore, a subject within the control of the State of Georgia. Because we have confined our opinion exclusively to the question before us, that is, the right arising on a suggestion of insanity after sentence, we must not be understood as implying that a different rule would prevail after verdict and up to and including sentence, or as passing upon the question whether, under the Fourteenth Amendment, a State is without power to relegate the decision of a question of insanity, when raised before conviction, to such apt and special tribunal as the law might deem best.

Affirmed.

Statement of the Case.

THE VICTORY & THE PLYMOTHIAN.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH

CIRCUIT.

Nos. 66, 67. Argued October 28, 29, 1897. Decided November 29, 1897.

On the facts, which are detailed in the Statement of the Case, below, respecting the navigation and the conduct of the Victory and the Plymothian just previous to the collision which caused the injuries and damage herein complained of, Held;

(1) That as a general rule, vessels approaching each other in narrow

channels, or where their courses diverge as much as one and one half or two points, are bound to keep to port and pass to the right, whatever the occasional effect of the sinuosities of the channel; (2) That the Victory was grossly in fault, and that the collision was the direct consequence of her disregard of that rule of the road, and of her reckless navigation;

(3) That the fault of the Victory being obvious and inexcusable, the evidence to establish fault on the part of the Plymothian must be clear and convincing in order to make a case for apportionment; the burden of proof being upon each vessel to establish fault on the part of the other;

(4) That as the damage was occasioned by collision and was within the exceptions in the bills of lading, it rested upon the underwriters to defeat the operation of the exception by proof of such negligence on the part of the Plymothian as would justify a decree against her, if sued alone;

(5) That the Plymothian was on her proper course, that she was not bound to anticipate the conduct of the Victory, and that she took all proper precautions as soon as chargeable with notice of risk of collision.

On the twelfth day of November, 1891, the steamers Victory and Plymothian came into collision in the Elizabeth River between Lambert's Point and Craney Island Light. The Plymothian, laden with a cargo of cotton, was outward bound. The Victory was inward bound in ballast. The Plymothian and her cargo were seriously damaged. The Victory was also damaged about the bows.

On the fourteenth of November, the master of the Victory filed a libel against the Plymothian in the District Court for the Eastern District of Virginia; and on November 27 a libel

Statement of the Case.

was filed in that court by the underwriters of the Plymothian's cargo against the Victory and the Plymothian, seeking to hold them both liable for damage thereto. The Port of Plymouth Steamship Company, owner of the Plymothian, filed a petition in said District Court on the third of December, praying for a limitation of its liability for damages growing out of the collision, and giving notice of its intention to contest its liability for any part thereof. A similar petition was filed the same day by MacIntyre and others, owners of the Victory. The value of the owners' interest in the Plymothian and her pending freight was fixed at $45,221, less $5000 salvage, or $40,221; the value of the interest of the owners of the Victory at the sum of $67,500; each gave bond. The damages to the Victory were proven at $14,363.80; to the Plymothian, at $41,684.12; and to the cargo, at $71,427.97.

The cause was heard upon pleadings and evidence, and the District Court held the Victory solely in fault for the collision, and decreed a recovery by the owners of the Plymothian and the underwriters of her cargo, pro rata, to the extent of the bond filed by the owners of the Victory in their limitation proceeding. 63 Fed. Rep. 631. The underwriters of the cargo and the owners of the Victory severally appealed from the decree of the District Court to the Circuit Court of Appeals for the Fourth Circuit. That court concurred with the District Court so far as concerned the faults found against the Victory, but held that the Plymothian was also in fault to a slight degree, and modified the decree of the District Court. by awarding the whole of the Victory's bond to the cargo, and that any amount remaining unsatisfied should be paid by the owner of the Plymothian. 25 U. S. App. 271.

The owners of the Victory and the owner of the Plymothian thereupon severally petitioned for a writ of certiorari from this court under section six of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826; and the writ was accordingly issued. The facts as stated in substance by the District Court and the Circuit Court of Appeals were as follows:

The Victory was a British steamer of 1774 tons net tonnage, 338 feet in length, 38 feet in breadth, inward bound in ballast,

Statement of the Case.

drawing seventeen feet aft and thirteen feet forward. Her officers and crew numbered thirty-one all told.

The Plymothian was a British steamer of 1016 tons net register, 260 feet long, laden with a cargo consisting of 3682 compressed bales of cotton. Her officers and crew numbered twenty-one all told. She was outward bound from Galveston to Liverpool, having come in through Hampton Roads to take in coal at Lambert's Point. Her draft was fourteen or sixteen feet. Both vessels were in charge of pilots, and their masters were on their bridges respectively, each acting as lookout, and seeing that the orders of the pilots were executed. Neither ship had a special lookout forward of the bridge on her bows. The collision occurred in a straight stretch of the channel of the Elizabeth River between Craney Island Light House and the turn in the channel at the buoys opposite Lambert's Point. There were two of these buoys, a red one, No. 22, known as the Merrimac Buoy, on the west side, and a black one, No. 9, on the east side. The distance from buoy No. 9 to Craney Island Light House was 1967 yards on the chart, or about a mile and one eighth.

The place of collision was at black buoy No. 7 at the easterly edge of the eighteen-foot curve of the channel, 1200 yards south of the Craney Island Light House and 767 yards north of the black buoy No. 9. The channel is 250 yards wide at Craney Island and 450 yards wide at buoy No. 9. The diagram of the channel on page 413 sufficiently indicates the situation.

The Plymothian had been taking coal at Lambert's Point pier, a short distance from buoy No. 9. She left the pier at four P.M., heading out off the buoy, the course from the pier to the turning point down the channel being northwesterly at an angle of forty-five degrees. The usual departing signal was given as she moved from the pier. Proceeding outward to round buoy No. 9, with the helm slightly a-port, the engines were at half speed until the buoy was close aboard on the starboard bow. The engines were then put at full speed and the helm hard-a-port, and, rounding the buoy, she set her course down the easterly side of the channel.