the Supreme Court can resort to ascertain its appellate jurisdiction, in cases decided in the Supreme or Superior Court of a State. It is to the record, and to the record alone, that We think the doctrine in that case is entirely sort to forced inferences and conjectural reasoncorrect. The certificate of the clerk cannot ings, or possible, or even probable suppositions of make the papers above mentioned a part of the points raised and actually decided by those courts. The court must see, plainly, that the derecord; nor can the statement of counsel in the cision was either directly made of some matter motion for a new trial, authorize us to say that within the purview of the 25th section of the Act of 1789, or that the decision could not have been certain questions were raised, and certain opin- such as it was, without necessarily involving such ions given upon such evidence. It does not matter. follow that the court admitted that the opinions imputed to them were given at the trial, because they have not disavowed them in overruling the motion. On the contrary, it might sometimes happen that such a motion would be overruled, because the court had not given the instruction mentioned in the motion. There is therefore nothing in the record that could war-loss sustained by the assured. The policy may not rant us in assuming that the papers referred to were offered in evidence, nor that the opinions ascribed to the court were actually given. These facts should in some mode or other be authenticated by the court itself. This court have constantly adhered to this rule, and the cases upon the subject were carefully reviewed and considered in the case of Crowell v. Randell, 10 Peters, 368, and the rules there stated must be considered as too firmly settled to be shaken. The writ of error in this case must therefore be dismissed. This case came on to be heard on the transcript of the record from the Supreme Court of the State of Ohio in and for the County of Scioto, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that the writ of error be, and the same is hereby dismissed, for want of jurisdiction register which has been obtained without conformA policy of insurance on a vessel sailing under a ing to the requisitions of the laws of the United States relative to the registry and enrolling of vessels of the United States is not void, and an action may be maintained on such a policy to recover a have been designed to aid, assist, or advance any self, and only remotely connected with the use of unlawful purpose; and was a lawful contract in itthe certificate of registry. There are cases in which a contract may be valid, notwithstanding it is remotely connected with an independent Illegal transaction; which, however, it is not designed to ald or promote. Suppose a vessel had been actually forfeited for some antecedent legal act, are all though there is no illegal object in view, and the contracts for her future employment void, alforfeiture may never be enforced? אן N error to the Supreme Judicial Court of the The original action was assumpsit on a policy of insurance, dated July 17, 1833, upon the schooner called the Mary, and owned by said Polleys, for the term of one year, commencing on the 11th of said July-sum insured, $3,000. The schooner during the said year, on June 10, 1834, was totally lost. The general issue was pleaded. It appeared on the trial that a sloop was built in 1816, and was enrolled by the name of the Sophronia, and was again enrolled in the custom-house in Portland by the same name, March 24th, 1822. That schooner Mary was 157] THE OCEAN INSURANCE COM- built upon the keel, floor timbers and naval PANY, Plaintiffs in Error, V. WILLIAM POLLEYS, Defendant in Error. Jurisdiction, court to look to the record alone to ascertain-insurance on vessel not having legal register. The settled construction given by the Supreme Court to the 25th section of the Judiciary Act of 1789, is, that to bring a case within the reach of that section, it must appear on the face of the record of the State court, either by express terms, or by clear and necessary intendment, that the question of the construction of a clause of a statute of the United States did actually arise in the State court; not that it might have arisen or have been applicable to the case; and that the question was actually decided not that it might have been decided by the State court against the title, right, privilege, or exemption set up by the party. If, therefore, the decision made by the State court up: on the face of the record is entirely consistent with the construction of the statute contended for by the party appellant, no case is made out for the exercise of the appellate jurisdiction of the Supreme Court. In the exercise of the appellate jurisdiction of the Supreme Court on the decisions of State courts, the Supreme Court is not at liberty to reNOTE. The record for the purpose of showing jurisdiction in the Supreme Court of the United States of a writ of error to a state court-see note What record must show respecting the presentation and decision of a Federal question in order to confer jurisdiction on the Supreme Court of the United States of a writ of error to a state to 63 L.R.A. 329. court-see note to 63 L.R.A. 471. timbers of the said sloop Sophronia, and the size enlarged nearly twelve tons, and the name of the Mary given to her after being so enlarged, and that this was known to the defendants at the time of executing the policy; and that the certificate of Mark Leavit was procured by said Polleys, and presented to the custom-house to obtain the enrollment of the schooner Mary, without any fraudulent intent to deceive or defraud, but with a fair and honest intention, as the jury believed. But that the enrollment of the sloop *Sophronia [*158 was not first surrendered and delivered up at the custom-house before the issuing of the enrollment of the Mary, which was on the 3d day of June, 1833. The counsel for the original defendant, on the trial, objected to the admission in evidence of the enrollment of June 3, 1833, as contrary to the laws of the United States; but the judge overruled the objection, and it was admitted; and the counsel further insisted that schooner on the voyage in which she was lost was sailing under circumstances rendering her liable to forfeiture for a violation of the laws of the United States, and that, therefore, a policy on a vessel pursuing such a voyage was not valid, or legal and binding; but the judge also overruled this objection as insufficient to bar the action. The cause was thereupon submitted to the jury, who returned a verdict for the original plaintiff. The defendant prosecuted this writ of error. For the plaintiff, the following points were submitted: 1. That the certificate of enrollment of the schooner named in the policy of insurance, enrolled by the name of the Mary, was procured by said Polleys but a short time before the commencement of the year for which she was insured, knowingly in direct violation of the statute of the United States then in full force, of which statute he was bound to take notice. 2. That the enrollment of said schooner thus procured by said Polleys, by a new name, was entirely illegal, and wholly null and void. The case was argued by Mr. Fletcher for the | The record shows that this position was denied, plaintiffs, and by Mr. Webster for the defend- and thus the jurisdiction exists in this court. ant. The law applicable to the facts of this case is clear and explicit. By the Act of Congress of December 31, 1792, 2 Laws U. S. ch. 146, when a ship or vessel is altered or increased in burden, or changed from one denomination to another, she must be registered anew, but by the same name, and the original register must be delivered up; a penalty of five hundred dollars is imposed for the violation of this provision of the law: and by the 27th section of the act, using a register, falsely or fraudulently obtained, if used knowingly, forfeits the vessel. The Act of February 8, 1792, puts coasting vessels under the same regulations as those provided by the Act of December 31, 1792, "concerning the registering and recording of ships and vessels." By a circular letter from the Secretary of the Treasury, providing for the execution of these laws, the collector is prohibited licensing, or enrolling, or registering a ship or vessel, unless her previous register is delivered up. 3. That said Polleys, by not delivering up the original certificate of registry, incurred a penalty of five hundred dollars; and by being registered by a new name, the schooner lost her national character, and could no longer be deemed a ship or vessel of the United States. 4. That said certificate of enrollment was knowingly used for the schooner on the voyage upon which she was lost during the year for which she was insured, she not being then actually entitled to the benefit thereof. That such use of said enrollment was illegal, and a direct violation of the twenty-seventh section of the act aforesaid; and the schooner was thereby rendered liable to forfeiture. 5. That a policy of insurance on a vessel prosecuting a voyage under a false and unlawful enrollment and certificate thereof, and in violation of a statute of the United States, in the manner aforesaid, is not a binding contract, and cannot be enforced in a court of law. 6. That the said certificate of registry being a void, useless, and illegal document, the schooner while sailing under its pretended sanction, was not seaworthy; and that the implied warranty of seaworthiness was on that account violated. The registering of vessels has been required by all commercial nations. The object of those regulations is the encouragement of ship building, and to prevent frauds on individuals. 3 Kent's Commentaries, 139. The conduct of the defendant in error was contrary to the policy of the law, and in violation of it. No justification is offered for this act; and it is certain that if the collector had known the proceeding, he would not have given the register. By the register, a character was given to the vessel to which she was not entitled. She was, in fact, liable for foreign duties. What are the legal consequences of such proceeding? These are stated in the points submitted to the court. titled to a register as the Sophronia, not as the Mary; the register originally granted [*160 to her should have been delivered up to be can 159*] *Mr. Fletcher, for the plaintiffs in er-celled, and when registered anew, her enlarged ror, said that on the question whether this court capacity and the other alterations which had had a right to entertain jurisdiction of this been made in her, should have been stated. The writ of error to the Supreme Judicial Court of defendant in error was answerable for those Maine, all the cases were collected in the opin- violations of the law, and he cannot be perion of this court in the case of Crowell v. Ran-mitted to recover on a contract growing out of dal, 10 Peters. To give the court jurisdiction under the 25th section of the Judiciary Act of 1789, by which a writ of error is authorized to the Supreme Court of the State, the plaintiff must claim some privilege or exemption under an act of Congress, which had been denied to him by a misconstruction of the act. There is no necessity that the claim shall appear on the face of the record; if it appear that, unless by misconstruction of the act, the court could not have made the decision, or given the judgment complained of. The record in the case before the court shows more than is required by the decisions of this court. The counsel for the defendants in the State court, now the plaintiffs in error, objected to the admission of the enrollment of the vessel insured, in evidence, as the enrollment was contrary to the laws of the United States, and the vessel was liable to forfeiture. A vessel sailing in violation of the law of the United Btates could not be insured by a valid policy. this conduct. There is a penalty of five hundred dollars imposed for these violations of the law. Imposing a penalty is equivalent to an express prohibition of the act for which the penalty is imposed. Knowingly using a false register subjects the vessel to forfeiture. Knowing, as meant by the statutes, is a knowledge of the facts, and does not require a knowledge of the law. In a former act of Congress, "fraudulently using" a false register, was the language of the stat ute; but the Act of 1792 contains the term Kent's Commentaries, 467; 1 Binney's Rep. 10; "knowingly." Cited, Carthew's Rep. 252; 1 5 Barn. & Ald. 335. The contract not being binding, cannot be en. forced in a court of law. 1 Kent's Commen taries, 291. The Mary was constantly violat ing the laws of the United States. Every voy. age was such a violation, and no policy of insurance could protect her in such proceeding. 12 East, 303; 1 Bos. & Pull. 272; i Marshall on Insurance, 52; 6 Mass. Rep. 101; 1 Emer igon, 542, ch. 12, sec. 14; 2 Bos. & Pull. 35; 2 Douglas's Rep. 467; 7 Term Rep. 187; 1 Taunton Rep. 241; The Julia, 1 Cranch, 181; The Aurora, 8 Cranch, 203; The Hiram, 1 Wheat. 440; 15 Johns. Rep. 25; 12 East, 200; 17 Mass. 258; 2 Bos. & Pull. 370; 1 Maule & Selwyn, 593. The implied warranty of seaworthiness was violated by the vessel sailing with false papers. The loss from another cause has no influence on this principle. The vessel was insured as the Mary, when her real name was Sophronia. This is a breach of warranty. Cited, 6 Mass. Rep. 220; 7 T. Rep. 105; 4 Taunton, 373; 3 Kent's Commentaries, 257; Marshall on Insurance, 221. Mr. Webster, for the defendants in error, objected to the jurisdiction of the court. It does not appear that any statute of the United States was misunderstood. Suppose the court had said the vessel is forfeited, but the insurance is valid; does this give jurisdiction? The enrollment, although imperfectly made, was in evidence. Has the Superior Court of Maine decided on the effect of an act of Congress? This does not appear, because one of the parties has a defense connected with the statute. It does not give this court jurisdiction to revise the decision of the court before which the defense was made. If the State court have decided wrong on the facts, yet it does not appear the statute has been misinterpreted. ernment of the United States would have interfered. Cited, 13 Pickering's Rep. 518; 15 East, 364; 4 Taunton, 589; 13 Mass. Rep. 589; 6 Greenleaf's Reports, 68. Mr. Justice Story delivered the opinion of the court: This is a writ of error to the Supreme Judicial Court of the State of Maine. The original action was assumpsit on a policy of insurance, dated the 17th of June, 1833, whereby the Ocean Insurance Company insured three thousand dollars on the schooner Mary, owned by Polleys, at sea or in port, for the term of one year, commencing the risk on the 11th of July, 1833, at noon, and ending the 11th of July, 1834, at noon. The schooner was totally lost by the perils of the sea, on the 10th of June, 1834, while the policy was in force. At the trial, on the general issue, it appeared in evidence that a sloop was built in 1816, and enrolled by the name of Sophronia, and was again enrolled in the custom-house in Portland, by the same name on the 24th of March, 1822. The schooner Mary was built upon the keel, floor timbers, and naval timbers of the said sloop Sophronia, the size was enlarged nearly twelve tons, and the name of Mary was given to her after being so enlarged; and this was known to the Insurance Company at the time of executing the policy. A certificate of one Mark Leavit was procured by Polleys, and presented to the custom-house to obtain an enrollment of the schooner Mary, without any fraudulent intent to deceive or defraud, but with fair and honest intentions, as the [*162 jury believed. But the enrollment of the Sophronia was not first surrendered and delivered enrollment of the Mary, on the 3d of June, 1833. Upon these facts, which appear upon the bill of exceptions taken at the trial, the counsel for the Insurance Company objected to the admission in evidence of the said enrollment of the Mary of the 3d of June, 1833, as contrary to the laws of the United States; but the judge who sat at the trial overruled the objection, and the enrollment was admitted. The same counsel further insisted that the said schooner on the voyage on which she was lost, was sailing under circumstances rendering her liable to forfeiture for a violation of the laws of the United States; and that therefore a policy on a vessel pursuing such a voyage, was not valid, or legal and binding. But the said judge also overruled this objection as insufficient to bar the action. Other points arose at the trial, upon which, however, it is unnecessary for us to dwell; because they are in no shape cognizable by this court in the exercise of its appellate jurisdiction over the judgments and decrees of the State courts, under the 25th section of the Judiciary Act of 1789, ch. 20. The jury found a verdict for the plaintiff (Polleys), which was confirmed by the whole court, and judgment passed thereon accordingly for him. The enrollment, although irregularly obtained, was a legal paper. The parties could be visited by a penalty, but this was not a forfeiture of the vessel. To maintain that a contract made for the protection of the property of the owner of such a vessel is void, it must 161*] *be shown that, by the manner of obtain-up at the custom-house before the issuing of the ing the enrollment, the party was deprived of any and all property in the vessel; or that the contract was made in aid of an illegal act. The case agreed exempts the assured from all fraud. The contract of insurance was legal. It had¦ nothing to do with the act of the owner in obtaining an enrollment. It stood separate and apart from all the former transactions. It was not like a contract of insurance on a vessel carrying an enemy's license, where the license makes the property enemies' property. In reply to the cases cited by the counsel for the plaintiff in error, Mr. Webster said they all established that the contract was itself unlawful. In such a case, a court of law will give no assistance to enforce such an agreement. But the acts of Congress did not make the forfeiture of the vessel, under such circumstances, absolute, even if any forfeiture could be enforced. Proceedings against her were necessary The government could alone enforce the law, and until this was done, the sailing of the vessel was lawful. The power to remit for any penalty or forfeiture, under such circumstances, is given by the statute. Thus, until the government had fully manifested its claim, and had refused a remission, no one could allege anything against the vessel. The Mary was a registered vessel of the United States, and had a right to protection as such. If a revolt had been committed on board of her, it would have been punished. If she had been attacked by a foreign military force, the gov Two questions have been argued before us. The first is, whether upon the face of the record any case is made out for the exercise of the appellate jurisdiction of this court under the 25th section of the Act of 1789, ch. 20. The next is, whether the State court has in fact misconstrued the laws of the United States, upon the 162 1839 points in controversy at the trial to the preju- | the laws of the United States. In this view, as dice of the Insurance Company. In our judgment it is wholly unnecessary to 163*] *Let us now apply this doctrine to a matter of evidence proper for the considera- The Then as to the other point. The objection made by the counsel for the Insurance Company was that the schooner (Mary), on the voyage on which she was lost, was sailing under circumstances rendering her liable to forfeiture for a violation of the laws of the United States, and that therefore a policy on a vessel pursuing such a voyage was not valid, or legal and binding. But the judge also overruled this objection, as insufficient to bar the action. The ob jection was founded on the 27th section of the Ship Registry Act of 1792, ch. 45, above referred to; which declares that if any certificate of registry or record shall be fraudulently or knowingly used for any ship or vessel not then actually entitled to the benefit thereof, according to the true intent of this act, such ship or vessel shall be forfeited to the United States. with her tackle, apparel, and furniture. objection, then, as insisted on by the counsel The first was that the for the Insurance Company, involved two dis tinct propositions. schooner was sailing on the voyage under circumstances which rendered her liable to for Now, the first [*164 feiture. The second was that the policy on her *was therefore void. might have been most fully admitted by the court, and yet the second have been denied, upon the ground that the policy was a lawful contract in itself, and only remotely connected with the illegal use of the certificate of regis try; and in no respect designed to aid, assist, or advance any such illegal purpose. We all know that there are cases where a contract may be valid, notwithstanding it is remotely connected with an independent illegal transaction, which, however, it is not designed to aid or promote. The case of Armstrong v. Toler, 11 Wheat. R. 258, presented a question of this sort, and was decided in favor of such a contract. But cases might easily be put where the doctrine itself Suppose the Mary had been rewould admit of a far more simple and easy illustration. paired in port, and the shipwrights had known the circumstances under which she had obtained the new certificate of registry, would they in consequence of such knowledge alone have lost their title to recover for their own work and labor? Suppose a vessel had been actually forfeited by some antecedent illegal act, are all contracts for her future employment void, al| though there is no illegal object in view, and the forfeiture may never be enforced? In order to bring the present case within the jurisdiction of this court, it must clearly ap pear on the face of the record that the State court did decide against the construction of the laws of the United States insisted on by the Insurance Company; for if the court did decide in favor of that construction, and yet held the policy valid upon other grounds consistently with that decision, we have nothing to do with the latter point, and have no right to inquire whether it was a just application of the general principles of commercial law or not. Now, so far is it from appearing on the face of the rec Peters 13. ord that the court decided against the con- PPEAL from the Circuit Court of the otruction of State court the United States in A United States for the County our Washing ton, in the District of Columbia. sisted on by the Insurance Company, that the contrary may be fairly inferred from the lan- The appellant, John Walker, filed a bill in guage of the court in overruling the objection. the Circuit Court of the County of WashingThe objection was overruled as "insufficient to ton, stating that James Walker, late of Washbar the action,” that is, the action on the pol-ington, by his last will and testament, had beicy was still maintainable, notwithstanding the queathed to him and to his then wife, Ann Mary "was sailing under circumstances ren- Sophia Walker, since intermarried with George dering her liable to forfeiture for a violation Parker, one third of his real estate, during her of the laws" of the United States. life, and in the event of her death, all the right bequeathed to her is declared to be vested in his infant son, James Walker. James Walker, the son, claims the right in fee-simple, after her death, of the portion of the estate devised by the testator to his wife. The testator in a subsequent part of his will bequeathed other parts of his estate in fee to other persons, and among them to his said infant son, James Walker. The bill then states the particular estates devised by the will to the complainant himself, and the others of the family of the testator; and alleges the same to have been devised to them in fee-simple, free and clear of any right of the widow of the testator, or of his son. In the exercise of the appellate jurisdiction of this court over the decisions of State courts, we are not at liberty to resort to forced inferences and conjectural reasoning, or possible or even probable suppositions of the points raised and actually decided by those courts. We must see plainly that the decision was either directly made of some matter within the purview of the 25th section of the Act of 1798, or that the decision could not have been what it was without necessarily involving such matter. In the present case we can arrive upon the record at no such conclusion. The consequence is that the cause must be dismissed for want of jurisdiction. We have been furnished with a copy of the opinion of the learned judges in the State court in this very case, and we are gratified in 165] finding that it abundantly confirms the deductions which we have drawn from the record. But it is proper to add that that opinion, if it had been otherwise, could not have had any influence upon our present opinion, since it constitutes no part of the record; and it is to the record, and the record only, that we can resort to ascertain our appellate jurisdiction in cases of this sort. The writ of error is accordingly dismissed for want of jurisdiction. 166*] *JOHN WALKER, Appellant, V. GEORGE PARKER et al. Appellees. Construction of will. The testator devised to his wife one third of his personal estate forever, for her own proper use and benefit, and also one third of all his real estate, during her lifetime, and in the event of her death, all the right in real property bequeathed to her should be, and by the will is, declared to be vested in his infant son. The testator then proceeded to devise sundry lots and houses to his mother, his sisters, his brothers, separately, and his son. These are given to their respective devisees "as their property forever." He then devised the balance of his real estate to his infant son, "forever," believed to be certain lots specified in the will. Held, that the wife took under the will one third of all the real estate of the testator, during her life, and that his son took a fee-simple in one third of the property given to the brothers and sisters of the testator, subject to the devise to his mother, and a fee-simple in all the real estate, specifically devised to him, subject to the devise of one third to his mother during her life. Ann Sophia Parker, who was the wife of the testator, James Walker, and her present husband, George Parker, the bill states, insist upon the right of the said Ann to one third of the lots and houses bequeathed by the will; and refuse to permit the complainant to dispose of the same, and claim a right to exact one third of the rents thereof, and to have a right to rent the same as they please. The bill proceeds to state that the complainant is advised that Ann Sophia Parker and her husband have no right in the lots held by him under the will of James Walker, nor has any other person a right to them to his prejudice; but should the court think differently, the bill *states that the property cannot be [*167 divided without great injury, and that the complainant is desirous to sell the lots and property devised to him, and those under whom he holds. The complainant states he is desirous to have the exclusive control of his own property, and that if the said Ann Sophia has a right of dower in the property, he asks that the same be assigned to her, and that the rights of the minor be assigned; and if this cannot be done, that the property be sold, and out of the proceeds of the sale, an equivalent be allowed for their interest therein. The bill asks that Ann Sophia Parker, and the infant son of the testator, and his testamentary guardian, be enjoined from setting up any claim to the property held by him, or to which he is entitled, under the will of James Walker; and that he may be quieted in his possession and enjoyment of the premises. The bill also asks for further and general relief. The will of James Walker was made on the 17th day of September, 1832, and admitted to probate on the 25th day of September, in the same year. The material parts of the will are the follow The devisee of one of the lots devised to him forever, which the court held was subject to the right to one third in the wife of the devisor, and one third after her deccase, in fee to the son of the de-ing: visor, cannot, by a proceeding in chancery, compel a sale of the property devised or a partition; without the court are satisfied It would be for the benefit of the infant son to make such sale, and with out the consent of all the other parties interested in the property. "I bequeath and give to my dearly beloved wife, Ann Sophia Walker, one third of the whole of my personal estate, forever, for her own proper use and benefit; and also one |