of Chicago? A. Not to my knowledge. Q. Now, Mr. Sanford, if you should be selected as a juror in this case, do you believe that, regardless of all prejudice or opinion which you now have, you could listen to the legitimate testimony introduced in court, and upon that, and that alone, render and return a fair and impartial, unprejudiced and unbiased, verdict? A. Yes."

At the close of this examination on the part of the defendants, the juror was challenged in their behalf for cause, and the attorney for the state, after it was ascertained that all the peremptory challenges of the defendants had been exhausted, took up the examination of the juror; and as to this the record shows the following:

"Mr. Ingham. Mr. Sanford, upon what is your opinion founded,-upon newspaper reports? Answer. Well, it is founded on the general theory, and what I read in the newspapers. Question. And what you read in the papers? A. Yes, sir. Q. Have you ever talked with any one who was present at the Haymarket at the time the bomb was thrown? A. No, sir. Q. Have you ever talked with any one who professed, of his own knowledge, to know anything about the connection of the defendants with the throwing of that bomb? A. No. Q. Have you ever said to any one whether or not you believed the statements of facts in the newspapers to be true? A. I have never expressed it exactly in that way, but still I have no reason to think they were false. Q. Well, the question is not what your opinion of that was. The question simply is, it is a question made necessary by our statute, perhaps A. Well, I don't recall whether I have or not. Q. So far as you know, then, you never have? A. No, sir. Q. Do you believe that, if taken as a juror, you can try this case fairly and impartially, and render a verdict upon the law and the evidence? A. Yes."

At this stage of the examination the court remarked, in reply to some suggestion of counsel, as follows: "The Court. The defendants having challenged for cause, which is overruled, can, of course, stand where they are without saying anything more; but the effect of that, in my judgment, is that they accept the juror because they can't help themselves. They have got no peremptory challenge; the challenge for cause is overruled, and, necessarily, the question now is for the state to say whether they will accept this juror or not. The common law is that all jurors not challenged, or to whom the challenge is not sustained, are the jurors to try the case. If they are not challenged for a cause which is sustained, and if they are not challenged peremptorily, then they are necessarily the jury to try the case. Now, in this instance, the defendants have no more peremptory challenges, and the challenge which they have made for cause is overruled; therefore, so far as the defendants are concerned, he is a juror to try the case." This was accepted by both parties as a true statement of the then condition of the case; and after some further examination of the juror, which elicited nothing of importance in connection with the present inquiry, no peremptory challenge having been interposed by the state, Sanford was sworn as a juror, and the panel was then complete.

This, so far as we have been advised, presents all there is in the record which this court can consider touching the challenges of these two jurors by the defendants for cause.

In Reynolds v. U. S., 98 U. S. 145, 156, we said "that upon the trial of the issue of fact raised by" a challenge to a juror, in a criminal case, on the ground that he had formed and expressed an opinion as to the issues to be tried, "the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like. any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless

the error is manifest.

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It must be made clearly to appear that, upon the evidence, the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the conscience or discretion' of the court." If such is the degree of strictness which is required in the ordinary cases of writs of error from one court to another in the same general jurisdiction, it certainly ought not to be relaxed in a case where, as in this, the ground relied on for the reversal by this court of a judgment of the highest court of the state is that the error complained of is so gross as to amount in law to a denial by the state of a trial by an impartial jury to one who is accused of crime. We are unhesitatingly of opinion that no such case is disclosed by this record.

We come now to consider the objection that the defendant Spies was compelled by the court to be a witness against himself. He voluntarily offered himself as a witness in his own behalf, and by so doing he became bound to submit to a proper cross-examination under the law and practice in the jurisdiction where he was being tried. The complaint is that he was required on cross-examination to state whether he had received a certain letter, which was shown, purporting to have been written by Johann Most, and addressed to him, and, upon his saying that he had, the court allowed the letter to be read in evidence against him. This, it is claimed, was not proper cross-examination. It is not contended that the subject to which the cross-examination related was not pertinent to the issue to be tried; and whether a cross-examination must be confined to matters pertinent to the testimony in chief, or may be extended to the matters in issue, is certainly a question of state law, as administered in the courts of the state, and not of federal law.

Something was said in argument about an alleged unreasonable search and seizure of the papers and property of some of the defendants, and their use in evidence on the trial of the case. Special reference is made in this connection to the letter of Most about which Spies was cross-examined; but we have not been referred to any part of the record in which it appears that objection was made to the use of this evidence on that account. And upon this point the supreme court of the state, in that part of its opinion which has been printed with the motion papers, remarks as follows: "The objection that the letter was obtained from the defendant by an unlawful seizure is made for the first time in this court. It was not made on the trial in the court below. Such an objection as this, which is not suggested by the nature of the offered evidence, but depends upon the proof of an outside fact, should have been made on the trial. The defense should have proved that the Most letter was one of the letters illegally seized by the police, and should then have moved to exclude or oppose its admission on the ground that it was obtained by such illegal seizure. This was not done, and therefore we cannot consider the constitutional question supposed to be involved."

Even if the court was wrong in saying that it did not appear that the Most letter was one of the papers illegally seized, it still remains uncontradicted that objection was not made in the trial court to its admission on that account. To give us jurisdiction under section 709, Rev. St., because of the denial by a state court of any title, right, privilege, or immunity claimed under the constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was "specially set up or claimed" at the proper time, and in the proper way. To be reviewable here, the decision must be against the right so set up or claimed. As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there, and we can do no more. This is not, as seems to be supposed by one of the counsel for the petitioners, a question of the waiver of a right under the con

stitution, laws, or treaties of the United States, but a question of claim. If the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive, so far as the right of review here is concerned. The question whether the letter, if obtained in the manner alleged, would have been competent evidence, is not before us, and therefore no foundation is laid under this objection for the exercise of our jurisdiction.

As to the suggestion by counsel for the petitioners Spies and FieldenSpies having been born in Germany, and Fielden in Great Britain-that they have been denied by the decision of the court below rights guarantied to them by treaties between the United States and their respective countries, it is sufficient to say that no such questions were made and decided in either of the courts below, and they cannot be raised in this court for the first time. Besides, we have not been referred to any treaty, neither are we aware of any, under which such a question could be raised.

The objection that the defendants were not actually present in the supreme court of the state at the time sentence was pronounced, cannot be made on the record as it now stands, because on its face it shows that they were present. If this is not in accordance with the fact, the record must be corrected below, not here. It will be time enough to consider whether the objection presents a federal question when the correction has been made.

Being of opinion, therefore, that the federal questions presented by the counsel for the petitioners, and which they say they desire to argue, are not involved in the determination of the case as it appears on the face of the record, we deny the writ. Petition for writ of error is dismissed.

POTOMAC STEAM-BOAT Co. v. BAKER SALVAGE Co.

(October 24, 1887.)

1. SALVAGE-CONTRACT-WAIVER OF SALVAGE CLAIM.

The captain of a salvage company, in response to telegrams, went to a sunken steamer, removed her cargo, pumped her out, and towed her safely into port. Before going to work the captain of the sunken vessel asked what it would cost to get the vessel off, to which the captain of the salvors replied, "I do not know. The captain of the vessel then said, "This is not a salvage service;" to which the other replied, "Call it what you please, so I get my pay;" and the captain then said, "It is no salvage service." They finally agreed to submit the amount to be paid to arbitration, in case the salvage company and the owners of the vessel could not agree upon a sum. Held, that the salvage company was entitled to salvage compensation for the services rendered, as the conversation between the captains did not amount to a contract for compensation that would bar a claim for salvage, and such claim was not affected by the agreement to arbitrate.

2. SAME AMOUNT OF AWARD-REVIEW ON APPEAL.

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Since the act of congress of 1875, in a salvage case the United States supreme court may revise the decree of the circuit court for matter of law only, and will not alter such decree for the reason that the amount awarded appears to be too large, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case. Hence a decree allowing $5,600 as compensation for safely and expeditiously removing a cargo worth $10,000 from a steamer sunk by a collision, worth $150,000, and pumping out, raising, and towing such steamer several miles into port, at great risk and expense to the salving company, will not be reversed on the ground that the award is excessive. Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

T. S. Garnett, Jr., for appellant. W. H. C. Ellis, for appellee.

BLATCHFORD, J. This is a libel in rem, in admiralty, in a cause of salvage, filed by the Baker Salvage Company, a corporation of Virginia, against the steamer Excelsior and her cargo, in the district court of the United States for the Eastern district of Virginia. That court awarded to the libelant, by a decree made on the twenty-first of February, 1884, the sum of $5,600, as salvage, being 3 per cent. on $160,000; the value of the Excelsior having been found at $150,000, and the value of her cargo at $10,000. 19 Fed. Rep. 436. The claimant appealed to the circuit court, which, on the nineteenth of May, 1884, affirmed the decree of the district court, with interest on the $5,600 from the date of the decree of the district court, until paid, at the rate of 6 per cent. per annum, and the costs of suit.

The circuit court found the following facts and conclusions of law: "On the afternoon of the fourth of December, 1882, at five o'clock, the steamer Excelsior, Capt. T. E. Baldwin, of the Potomac Steam-Boat Company, plying between Norfolk, Va., and Washington, D. C., touching at Old Point, Fortress Monroe, left her dock at Norfolk, steamed down the Elizabeth river and into Hampton roads, heading the usual course to make a landing at Old Point wharf. She had on board a competent crew, and an average number of passengers; the agreed value of the steamer being one hundred and fifty thousand dollars, and of her cargo ten thousand dollars. As the Excelsior was heading the aforesaid course in Hampton roads, at or near six P. M., the United States steam-tug Fortune came into collision with her, by an accident. The Fortune struck the Excelsior, which is of wood, on the starboard bow, making a hole in her hull at least 8 by 10 feet; and, it being apparent that the Excelsior must otherwise sink in deep water, from the quantity she was making in her hull through the hole in her bow, she was promptly headed for the shore, going ashore on the south side of Hampton bar at about its middle point, about two miles from Old Point wharf, three or four miles from Sewell's Point, between half a mile and a mile from the Soldiers' Home shore, the nearest shore, and within a hundred yards of the channel, where she sank, v.8s.c.-3

full of water, with a hole extending from her hurricane deck far down under water, lying almost head on to the shore, in water ranging in depth from six to seven feet at her bow to from ten to twelve feet at her stern.

"After ascertaining the above soundings, and landing his passengers at Old Point Comfort, Capt. Baldwin, of the Excelsior, proceeded to the same point, and sent the following telegram to the Baker Salvage Company, at Norfolk, Virginia: DECEMBER 4, 1882. "Send assistance, with steam-pumps, to Excelsior, on Hampton bar. Get here by low water.'

"Subsequently Capt. Baldwin sent another telegram, as follows: "DECEMBER 4, 1882. "Del'y guarantied. Bring steamer Resolute, a diver, with appliances.' "The first of these telegrams was received at the telegraph office, in Norfolk, at 8:02 P. M., and the other at 9:15 P. M., on the evening of the collision.

"The Baker Salvage Company, through the agency of its superintendent and general manager, Capt. E. M. Stoddard, at once, and vigorously, set to work, in response to the telegrams, to render the aid asked for; and, at or about ten P. M., a fully-equipped expedition, under the command of Capt. Stoddard, left Berkeley, opposite Norfolk, at the intersection of the southern and eastern branches of the Elizabeth river, where the wharves of the Baker Salvage Company are located, for the purpose of relieving the Excelsior. The expedition consisted of the powerful wrecking steamer Resolute, Hobbs, master, with her stationary steam-pump, capable of pumping four hundred tons per hour, with the schooner Scud in tow, having on board a portable steampump capable of pumping one hundred tons per hour, and a full complement of wrecking material and appliances, the whole manned by a crew of ten seamen, experienced in wrecking operations, and accompanied by a skilled diver, with diving apparatus. Capt. Stoddard, making all reasonable haste, and in the exercise of his judgment, did not attempt to go along-side of the Excelsior that night, not knowing her exact position on Hampton bar, and being unable to identify her lights, but went directly to Old Point wharf, where he arrived about one o'clock on the morning of December 5th, when it was floodtide there. Between that hour and daylight he secured the services of a number of laborers at Old Point, whose services he anticipated would be needed to remove the cargo, thus materially advancing the work for which he had come. At daylight on the morning of the fifth of December, Capt. Stoddard, with the expedition above described, went to the Excelsior, and found her lying, as above described, submerged to her main deck, with a hole in her bow, and full of water, water standing on her main deck aft at high tide, and about two feet below her guards at low tide.

"The Excelsior's cargo had not been reached by the water, being stored about amid-ships, which was higher than the stern. Capt. Stoddard at once had an interview with Capt. Baldwin, in the presence of the purser of the Excelsior. Capt. Baldwin asked what it was going to cost to get the ship off and deliver her at the railroad. Stoddard replied, I do not know;' to which Baldwin replied, This is not a salvage service;' to which Stoddard replied, Call it what you please, so I get my pay;' to which Capt. Baldwin replied, It is no salvage service;' and they both agreed to submit to arbitration the amount to be received for the service by the Baker Salvage Company, in case the two companies could not agree upon a sum.

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"At this point, viz., about seven o'clock on the morning of the 5th, Capt. Stoddard began the direct operations upon the Excelsior and her cargo, for their relief. He brought the Scud along-side the Excelsior, for the purpose of removing the steamer's cargo to Old Point wharf, and, placing the diving apparatus aboard the Excelsior, set the diver to work to ascertain minutely the exact extent of the wound that had been sustained by the steamer in the collision; and, while this was going on, he returned to Old Point wharf in the