2 Gall. 398 | U.S. Circuit Court for the District of Massachusetts | 1815
This is a libel brought in the district court upon a policy of insurance, alleging it to be a maritime contract, of which that court, as a court of admiralty and maritime jurisdiction, has cognizance. There is a plea to the jurisdiction, and the present question rests solely on the general sufficiency of that plea as a declina-tory bar. It has been argued, and now stands for judgment. I shall make no apology for the length of this opinion. The vast importance and novelty of the questions, which are involved in this suit, render it impossible to come to a correct decision without a thorough examination of the whole jurisdiction of the admiralty. I shall, therefore, consider, in the first place, what is the true nature and extent of the ancient jurisdiction of the admiralty; in the next place, how far it has been abridged or altered by statutes, or by common law decisions; and in tbe last place, what causes are included in the delegation by the constitution to the judicial power of the United States of “all cases of admiralty and maritime jurisdiction.”
The admiralty is a court of very high antiquity. It has been distinctly traced as early as the reign of Edward the First. Fitzj
■ What was originally the nature and extent •of the jurisdiction of the admiralty cannot now with absolute certainty be known. It is involved in the same obscurity, which rests on the original jurisdiction of the courts of •common law. It seems, however, that at a. very early period, the admiralty had cogni-zanee of all questions of ~prize; of torts and •offences, as well in ports -within the ebb and'flow of the tide, as upon the high se&s^. of maritime contracts and navigation; and also the peculiar custody of the rights, preroga-. tires, and authorities of the crown, in the British seas. The forms of its proceedings were borrowed from the civil law (Zouch, 88; Seld. ad Fletam, c. 8, § 4; Co. Litt. lib), and the rules by which it was governed, were, as is every where avowed, the ancient laws, customs and usages of the seas. 3 Beeves, Eng. Law, 198; Exton, 33; Seld. ad Fletam, -c. S, §§ 5, 6; Vin. Abr. p. 506, pi. 8. In fact, there can scarcely be the slightest doubt, that the admiralty of England, and the maritime •courts of all the other powers of Europe, were formed upon one and the same common model; and that their jurisdiction included the same subjects, as the consular courts of the Mediterranean. Exton, 44, 46, 49, 53; 1 Valin, Comm. 1, 120; Boccus, Assecur. note •SO; Cleirac, Juris, de la Marine, 191; Zouch, S7. These courts are described in the Con-solato del Mare, as having jurisdiction of “ai! controversies respecting freight; of damages to goods shipped; of the wages of mariners; of the partition of ships by public sale; of jettison; of commissions or bailments to masters and mariners; of debts contracted by the master for the use and necessities of his ship; of agreements made by the master with merchants, or by merchants with the master; of goods found on the high seas or on the shore; of the armament or equipment: of ships, gallies or other vessels; and generally of all other contracts declared in the customs of the sea. Compare Consolato del Mare (Ed. Casaregis) c. 22; Cleirac, Us et Cout. Jurisd. de la Marine, art. 1, note 3, 192; Consulat de la Mer, par Boucher, c. 22; Zouch, 90; 2 Brown, Adm. 30.
In support of these observations, it may hot be unfit to trace the early history of the jurisdiction of the admiralty in some of the more ancient records, which have escaped the ravages of time. •
The Black Book of the Admiralty asserts, that in the reign of Henry the Fust, and- in the time of many kings before (“en temps du premier roy Henry, et. en temps de plusieurs rois devant”), when any man was indicted of felony, the admiral or his lieutenant delivered a capias to the admiral (the marshal) of the court, or the sheriff, to arrest him; and a very particular account is given of the manner of proceeding in case of his avoidance. See Clerke, Prax.; Bough, art 122, note C 16, 17; Exton, 32; Seld. de Dom. Maris, lib. 2, c. 24, p. 209. Hence its existence and criminal jurisdiction may be inferred at that early period. The celebrated code of maritime laws, commonly called the Laws of Oleron, were compiled by Bichard the First, as has been already observed, on his return from the Holy Land. Besides these, he promulgated several maritime ordinances at Grimsby for the government of the admiralty. Prynne on 4 Inst 108; Exton, 26, 27, 182; Clerke, Prax. 113, C 18. In the reign of King John, several ordinances were made with reference to the admiralty; particularly the ordinance directing the admiralty to make inquisition of all persons unlawfully taking customs, or the fees-called anchorage (Exton, 28, 29; Bough. ■ art. 35, 36, note C 26; Clerke, Prax. 139, 140), and the famous ordinance for striking sail (or veiling the bonnet), in token of the superiority of the British sovereign over the adjacent seas. Clerke, Prax. 166; Burrough, Sovereignty, etc.; Seld. de Dom. lib. 2, c. 26, p. 215. In the reign of Henry the Third, the Laws of Oleron were ratified and republished. 1 Bib. Legum cites Prynne on 4 Inst 108; 2 Brown, Adm. 39, 40. In the reign of Edward the First there was a memorable ordinance prohibiting the courts having franchises, &e. from taking cognizance of any plea, exceeding 40 shillings sterling, touching merchants or mariners, as well by deed, as by charter of ships, obligations and other transactions; and further declaring, that every contract between merchant and merchant or merchant and mariner beyond sea, or within the flood mark, shall be tried before the admiral, and not elsewhere.
But.it is principally in the records of the reign of Edward the Third, that oúr attention should be closely drawn to the nature and extent of the jurisdiction of the admiralty; for to this period has the statute of 13 Rich. II., explicitly referred. Edward the Third gave to the laws of Oleron their final-confirmation (2 Brown, Adm. 40), and called a solemn convocation of all the judges of the realm, among other things to retain and preserve the ancient superiority of the British seas, and the official rights of the admiralty.
But the most venerable monument is the Black Book of the admiralty itself, which, though it contains considerable additions of later periods, is generally agreed to have been originally compiled in this reign. Exton, cc. 13,14, p. 185, 191; Prynne on 4 Inst. 106, 115; Preface to Roughton’s Articles, Clerke, Prax. 92. This book has always been deemed of the highest authority in matters concerning the admiralty. Besides the Laws of Oleron at large, it contains an ample view of the crimes and offences cognizable in the admiralty, and also occasional ordinances and commentaries upon matters of prize and maritime torts, injuries and contracts. See Roughton’s articles in Clerke, Prax. 99, etc., 163, etc. Among other things, it prohibits the suing of merchants, mariners and other persons at the common law for any thing appertaining to the marine law of ancient right.
As to maritime contracts, the jurisdiction of the admiralty is expressly affirmed in the same booh over all such contracts made abroad and within the flood mark. Rough, art. 38, c. 21; Clerke, Prax. 143, 144. And as to all causes, it is commanded that the admiralty shall do right and justice summarily and by plain process according to the marine law and the ancient customs of the sea.
The commissions too of the judges of the admiralty in this and the preceding reigns evince a very extensive cognizance over maritime transactions, as well in ports as on the high seas. The admiral is frequently styled therein, in reference to his judicial authority, “custos maritimarum partium,” “custos portuum cum costra maris,” “cus-tos marinae,” “custos portuum et marinae,” “eapitaneum et admirallum flotae marinae nostrae omnium marium, et tamquamque portuum, &c. quam aliorum portuum et locorum per costeram maris” (Exton, 15, 70, 76; Seld. de Doni. lib. 2, c. 14); and finally (as in the commission of Robert de Herle in 35 Edw. III. as having “plenam, tenore patentium, potestatem audiendi que-relas omnium et singulorum de hiis quae officium admiralli tangunt et cognoscendi in causis maritimis, &c.”
Such are some of the relies of antiquity, which are to be found in the learned treatises on the admiralty jurisdiction. Prom a historical review of them; from the consideration that in all other states in Europe, maritime courts were about the same period established, possessing the same jurisdiction, viz. over all maritime torts, offences, and contracts, proceeding by the same forms, viz. the forms of the civil law, and regulated by the same principles, viz. the ancient customs of the sea; from the consideration, that commercial convenience, and even necessity, at the same period, required a court of as extensive jurisdiction in England, and the acknowledged fact, that from its earliest traces the admiralty of England is found exercising a very extensive maritime authority, governed by the rules and forms of proceeding of the civil law, and, where statutes were silent, by the usages of the sea; from all these considerations it has been inferred, and, in my judgment, with irresistible force, that its jurisdiction was coeval and coextensive with that of the other foreign maritime courts. At all events, it cannot be denied upon these authorities, that before and in the reign of Edward the Third the admiralty exercised jurisdiction, 1. Over matters of prize and its incidents. 2. Over torts, injuries, and offences, in ports within the ebb and flow of the tide, on the British seas and on the high seas. 3. Over contracts and other matters regulated and provided for by the Laws of Oleron and other special ordinances, and 4. (as the commission of Robert de Herle shows) Over maritime causes in general And even Lord Coke admits. that maritime causes include causes arising'upon the sea. share ana in ports; for hé aeciares “marítima est super littus or in porta maris." 'Hawkeridge’s Case, 12 Coke, 129. That this jurisdiction was, from its original establishment, exclusive of the courts of common law in all cases, may perhaps admit of doubt; for it appears from some early cases, on which we shall have hereafter occasion to comment, that the courts of common law did, in some few instances, assume authority to adjudicate upon cases arising upon the seas. But that there is any authority previous to the 13 Rich. II., which, properly considered, impeaches the jurisdiction of the admiralty, as here asserted, may be with some confidence denied.
Let us now proceed to consider such cases, as have been supposed to impugn or weaken the conclusions, which have been attempted to be drawn thus far in favor of the admiralty. And here we must rest altogether upon the citations of Lord Coke in his view of the admiralty jurisdiction in his fourth Institute. 4 Inst. 134. It is well known with, what zeal, ability, and diligence, he endeavored' to break down the court of chancery, as well as the admiralty. It would have been fortunate for the maritime world, if his labors in the latter case had been as unsuccessful, as in the former. There are many persons, who are dismayed at the danger and difficulty of encountering any opinion supported by the authority of Lord Coke. To quiet the apprehensions of such persons, it may not be unfit to declare, in the language of Mr. Justice Buller. that “with respect to what is said relative to the admiralty jurisdiction in 4 Inst. 135, that part of Lord Coke’s work has been always received with great caution, and frequently
The first citation of Lord Coke is of two writs in the register (Fitzh. Nat Brev. 87, 88), one for taking and carrying away a ship found at H. and the chattels on board of the same ship;
The next citation is a writ in the register (Fitzh. Nat Brev. 114), which is thus described by Fitzherbert “If an English merchant be robbed and his goods be taken from him, beyond seas, by merchant strangers, and the English merchant sue beyond sea to have justice and restitution made thereof, and cannot obtain it, and this matter be testified unto the king in his chancery by divers credible persons; now, upon this testimony, if the merchant strangers come into any place within the realm of England with their goods, then the English merchant shall have a writ out of chancery directed unto the mayor or bailiffs, where such merchant strangers are with their goods, to arrest them and their goods, and ■ to keep them under arrest until they have satisfied the party his damages, which he hath sustained by reason of their misdoing.”—-“But it seemeth the English merchant shall not have such writ for any debt due to him from a merchant stranger upon a contract made beyond seas, if the merchant do come into England or his goods; quaere tamen hereof.”—In the register itself (page 120) the tort is thus alleged “quodcum ipse nap or apud C. in partibus de Spinia in villa de C. causa mercandisandi moram traxis-sct, et bona et catalla ad valentiam centum librarum emisset. .T. et T. etalii malefactores dictae villae mercatores de dictis partibus de S. prefatum S. apud dictam villain de S. vi et armis eeperunt et imprisonaverunt, et catall sua predicta, ab eo abstulerunt, et alia, &e. ei intulerunt, contra legem et ra-tionem in ipsius S. damnum non modicum, et depauperationem manifestara.” It is manifest that this writ merely respects a trespass to the-person and-goods of an Eng-, lish merchant committed in the territory of a foreign sovereign; a subject, over which the admiralty never claimed, or exercised any judicial authority. And perhaps itmay: be inferred from the language of Fitzher-bert, that the common law courts did not originally take cognizance of contracts between merchants in foreign countries; and we shall in fact find, that the admiralty did claim to exercise jurisdiction over them at a very early period. Clerke, Prax. 143, 144, C. 21.
Another citation is from Fitzherbert’s Abridgment. Corone,399,in8Edw.II.; Staund. PI. Cor. lib. 1, p. 51, 57. It stands thus. “Nota per Stanton Justice, que ceo nest pas sauce de mere ou home puit veier ceo que est fait bel un part del ewe et del autre, come a veier de l’un terretanque a l’autre, que le coroner viendra en ceo cas et fera son office, auxi comme aventure a vyent en un brace del mere, la ou home puit veier de 1’un parte tanque a 1’autre, del aventure, que en cel lieu avient, puit paiis aver conusance.” The opinion here maintained is, that it is not a creek of the sea, where a person may see what is done from both shores; and that in such place the coroner may exercise his official jurisdiction, as he well may in an arm of the sea, where an accident happens; which may be seen from both shores, for in such case the pais may have cognizance thereof. In respect to the first part of this opinion, it cannot be supported; for a creek, or, (what is the same thing) an arm- of the sea, is where, and as far as, the sea flows and reflows, without any reference to the disr tance of the enclosing shores. 22 Assiz. 93; Hale, De Portubus Maris, c. 4. And admitting, that the opinion of a single judge, (on what occasion we know not,) is tó be considered as settling the law, the residue of the opinion proves no more, than that, in those ancient times, in such creeks of the sea the coroner had jurisdiction. Yet from this Staundford, and after him Lord Coke, infer that the admiralty had no jurisdiction in those places, but only upon the high seas. Staundf. lib. 2, p. 51. This inference is inadmissible, since there is very strong evidence, that, at and before the samé period, the admiralty exercised authority in the creeks, arms and ports, of the sea; and so the jurisdiction could at most be only concurrent Lord Hale explicitly asserts, that in ancient times the common law exercised jurisdiction, concurrent with the admiralty, over crimes committed even upon the narrow seas or coasts, though it were high sea; and that this jurisdiction did not cease until about the 3S Edw. III.; and, among other cases in support of his opinion, he cites this very case in 8 Edw. II., and Infers from it, that in the present times, as well the coroner of the county, as of the admiral, may take inquisitions upon deaths happening in great rivers, namely, arms of the sea, that flow and re-
The next case is 43 Edw. III. (cited in Dyer, 326), which decides no more than, that marsh land, bordering on the sea, over which the sea ebbs and flows, may be parcel of a manor; from which Lord Coke infers, that it must be parcel of the county. Assuming this inference to be correct, it does not follow, that the jurisdiction of the admiralty is ■excluded; for in Sir Henry Constable’s Case, 5 Coke, 105b, 107, it was clearly held, that the soil, on which the tide ebbs and flows, may be parcel of a manor, and yet that the common law and the admiralty have there a divided empire, the former when the tide ebbs, and the latter when it flows.
The next case is 5 Edw. III. p. 3 (Id. Fitzh. Abr. “Replevin” 41). It was a replevin for goods taken in the vill of W.; the defendant justified, that he took them, as wreck of the sea, by virtue of a franchise of wreck ap-pendant to his manor; and the whole case turned upon a mere point of pleading. There ■is nothing in it touching the admiralty; and the only possible deduction from it is, that a plea of wreck of the sea was sustained in a court of common law; but nothing can thence be argued, that this was an exclusive jurisdiction. S. P. in 37 & 38 Hen. HI., cited Fortes, de Laud. c. 32; Selderi’s note e.
The next case (43 Edw. III.) stands thus in Fitzherbert’s Abridgment (Conusance, 36): “Trespass fait en Kingston sur Hull, port pur A. d’un nyeff prist en le ew de Hull versus corten persons. Le maire et bayles de Hull demandent conusance par chartre le roye a eux grant, quod cives nec bur-gesses de Hull non implacitentur alibi de aliquibus transgressionibus, conventionibus, contractis infra burgum, quam infra bur-gum; et fuit challenge eo que 1’un partie fuit estranger, et nient burgess, et auximent semble que il n'est enclose en ceux parolx que ils puissont tener plees. Finchdon dixit sic; et pur ceo le conusans fuit graunt,” &c. It would seem from the reasons assigned by Finchdon, that the conusance ought to have been, and in fact was, denied; and that the word “non” was omitted in the abridgment by mistake. But Lord Coke asserts that it was granted, and that this “proveth that ihe haven of Hull, where the ship did ride, was infra burgum de I-lull, and by consequence infra corpus comitatus, and determinable by the common law and not in the admiral court.” The case authorises no such conclusion. It does not appear, that the place where the ship was taken, was within the ebb and flow of the tide, but only that it was “on the water of Hull;” much less does it appear, that any point, as to the right of the admiralty to entertain suits for acts done in ports, was even glanced at, or put into •controversy. The case turned wholly on the claim of the corporation of Hull to withdraw suits arising within its franchises from the courts of common law. For aught that appears, Hull might have had the franchise to hold pleas of things done on tide waters, as it is unquestionable the corporation of Ipswich had. Exton, 138, 142. And even if the claim of conusance by Hull were well founded, it does not follow that a concurrent jurisdiction might not still remain in the admiralty over all things within its general authority. See Rex v. Soleguard, Andr. 331.
The next case is 48 Edw. IH. p. 3, in which it would be supposed from Lord Coke’s manner of quoting, that it was adjudged “if a mariner make a covenant with me to serve me in a ship upon the sea, yet, if his wages be not paid, they shall be demanded in this court by the common law, and not by the law of mariners,”
But the case, which is mainly relied on against this jurisdiction, is that in the time of Edward the First, as cited in Fitzherbert’s Abridgment (Avowry, 11)2). It stands thus,
Another case is 7 Rich. II., cited from Sta-tham’s Abridgment “Transgressio” pi. 54. It is thus summarily stated, “En trans d’un ■neife et certen merchandises pris; Vavasour, Nous le prisomus en le haut mere ovesque les Normandes qu’eux sont ennemyes le Roy, jugement si actionem. Markham, Ceo amount a nient pluis que de riens coupable. •Charleton, ceo pie est bone, per quod re-spondes a ceo.”. If this case prove any thing, it proves, that a capture on the high seas from the enemy may well be pleaded as a special plea and bar to an action of trespass for the capture; and that a court of common law t will - sustain such a plea. If it be supposed to affirm the jurisdiction of such a ■court over matters of prize, it is not law; if to deny it, it has nothing to do with the pres-ent controversy.
These are all the cases adduced by Lord ■Coke down to the-13 Rich. II., to disprove the jurisdiction,' which has been asserted in favor of the admiralty. Unless I am very much mistaken, they entirely fail of their intended purpose; and leave the current of an-cient authority flowing with an uniform and ■irresistible force in its favor.
Such then being the ancient or original jurisdiction of the admiralty, it will be in the next place proper to consider, in what respects it has been altered by statutes and de-cisions made since the period, of which we have been speaking.
The statute 13 Rich. II. c. 5, enacts, “that "the admirals and their deputies shall not meddle henceforth of any thing done within the realm, but only of a thing done upon the sea, according as it. hath been duly used in •the time of the noble King Edward [13L], grandfather of our lord the king that now is.”
It was upon these statutes, that the controversies respecting the admiralty were so zealously and obstinately maintained during more than two centuries. It is not my intention to examine how far the statutes themselves or the preambles thereof, or the petitions, on which they were founded, have been 'fairly published from the records of the tower.
It will be necessary, in the subsequent examination of the doctrines which the common lawyers .have asserted to support their construction of the statutes of Richard H., to class the cases, in order more effectually to investigate the principles upon which they are founded. Before, however, we proceed; to that examination, it may be well to dis
As to the dictum in 30 Hen. VI. p. 6, respecting the admiralty judges, that -tne place and things of which they hold plea, are out of the realm,”
• Let us now pass to the consideration of the reasons alleged, in the construction of the statutes of Richard H., to exclude the .jurisdiction of the admiralty in ports and havens, within the ebb and flow of the tide. As far as these reasons can be gathered from the imperfect light of reports, and from the laborious commentaries, of Lord Coke, they resolve themselves into the following propositions. 1. That the body of every county includes all navigable salt waters, “where one may see what is done on the one part of the water and on the other, as to see from one land to the other.” 2. That the sea is, ex vi termini, without the body of any county. 3. That all ports and havens are within the bodies of counties. 4. That where the common law hath jurisdiction it excludes the admiralty, and the common law hath jurisdiction in ports and havens.
In respect to the first proposition, it undertakes to define the boundary of a county on the sea coast at common law. The only authority in support of this definition is the opinion of Stanton, J., in 8 Edw. H., already cited (Fitzh. Abr. Corone, 399); for neither Staundford (Staund. P. C. 51) nor Lord Coke pretend to assert it upon any other ground. And even Stanton, J., does not state, that such waters are within the body of a county, but only .that the coroner has jurisdiction there; and we have already shown, that in early times coroners and sheriffs exercised a concurrent authority, even upon the high sea itself. Seld. de Dom. Mar. lib. 2, c. 14; Zouch, 114; Spelm. Reliq. 217; 2 Hale, P. C. 17-19. Indeed Lord Hale, in quoting this .very case (De Portubus Maris, e. 4, p. 10), considers it as no absolute proof; for he says, “an arm of
On the other hand, in Sir Henry Constable’s Case, 5 Coke, 106, etc., it was expressly adjudged, as has been already stated, that the soil, on which the sea ebbs and flow's, may be parcel of a manor, and that, when the sea flows and has plenitudinem maris, the admiral shall have jurisdiction of every thing done on the water, between the high and low water mark, by the ordinary and natural course of the sea; and yet, when the sea ebbs, the land may beiong to a subject, and every thing done on the land, when the sea is ebbed, shall be tried at common law, for it is then parcel of the country, and infra corpus comitatus; and so, between the high and low water mark, the common law and the admiralty have divisum imperium. It is probable that the court meant here to speak of land on the open sea coast; but it is very difficult to perceive, why the same principle should not apply as to the tide waters in ports of the sea. If land on the sea coast when the tide is cut, be to low water mark within the body of the county, and yet when the tide is at flood, it is deemed within the admiralty jurisdiction, because it is then the sea, why should not the same doctrine apply to the ebb and flow of the tide in ports and havens? • Until some strong reason can be assigned for a distinction, it would seem more conformable to law and nature to hold, that the bodies of counties, bounding on navigable waters, are limited at all times by the line of the sea tide; and this is the doctrine asserted by the admiralty. Exton, c. 3, p. 80; Id. c. 4, p. 87; Id. c. 8, p. 121; Zouch, 110; Lacy’s Case, Moore, 121. But see 2 East, P. C. 803; Bac. Abr. “Courts of Admiralty,” A.
In the next place, it is asserted, that the sea, ex vi termini, imports salt-water without the body of a county, by the definition of the common law. The authority principally relied on, to support this position, is the case in Edward tire First’s time. Fitzh. Abr. “Avowry,” 192; 4 Inst 140; 12 Coke, 79. That case has been already fully considered, and it is clear, that it does not, in any manner, warrant the assertion. On the other hand, Lord Hale (De Portubus Maris, c. 4, p. 10), in defining what the sea is, says, that it is either, that which lies within the body of the county or without; that arm, or branch of the sea, which lies within the fau-ces terrae, is, or at least may be, within the body of a county; that part, which lies not within the body of a county, is called the main sea, or ocean.
The third proposition is, that all ports and havens are within the bodies of the counties of the realm. By “ports and havens,” as the words are here used, are meant, not merely port or haven towns, but all the tide waters included within the harbors and franchises. This proposition is attempted to be sustained as an inference from the prior propositions, and from the authorities already stated (Fitzh. Abr. “Avowry,” 192; Id. Corone, 999; Id. Conisance, 36), which have been fully considered and answered. All the subsequent cases, from the earliest to the latest, profess to proceed upon these authorities, feeble and inconclusive, as they must be confessed to be.
The fourth proposition is, that where the common law hath jurisdiction, it excludes the admiralty; and the common law hath jurisdiction in ports and havens. This proposition also rests on the same authorities, as the preceding. Fitzh. Abr. “Avowry,” 192; Conisance, 36; Corone, 399. It has been already shown, that the common law originally had jurisdiction on the high seas, concurrent with the admiralty; and the exercise of that jurisdiction would be just as conclusive against that of the admiralty on the high seas, as it is now assumed to be in ports and havens. It is certain, that the admiralty did anciently take cognizance of suits in ports, and, if the common law did the same,-the only reasonable inference is, that the cognizance was concurrent. Zoueh, 113; Hale, De Port c. 7, p. 88. And it is hardly necessary to repeat, that the authorities relied on do not warrant any different doctrine. Indeed, it never was true, and is not now true, that the jurisdiction of the common law excluded that of the admiralty. In cases, now manifestly within the admiralty jurisdiction, the common law claims a concurrent cognizance, as will be abundantly shown hereafter.
In confirmation of the doctrine of the common law, which excludes.the.admiralty from cognizance of things done in ports and havens, the provisions of the statute of 2 Hen. V., c. 6, and 27 Eliz. c. 11, have been cited. The statute of Elizabeth provides, that such of the offences therein mentioned, as shall be done on the main sea, or coasts of the sea, being no part of the body of any county of the realm, and without the precincts, &c. of the cinqueports, shall be tried and determined before the lord high admiral, and other justices, of oyer and terminer, according to the form of the statute of 2S Hen. VHI., c. 15. And so, says Lord Coke (4 Inst 137), by the judgment of the whole parliament, the jurisdiction of the lord admiral is wholly confined to the main sea, and coasts of the sea, being no parcel of any comity of the realm. To this remark it has been very properly replied; 1. That the jurisdiction here conferred is not on the admiralty, but on the high commission court. 2. That several of the offences, stated in the statute, are such, as never were within the admiralty jurisdiction. The statute of 2 Hen. V. c. 6., commonly called the “Statute of Truces,” gives power and authority to the conservators of truces, appointed by that act, “to inquire of all such treasons and offences against the truce and safe conducts upon the main sea (‘sur le haut •meere’) out of the bodies of the counties, and out of the franchises of the cinqueports, as the admirals of the kings of England, before this time, reasonably, after the old custom and law on the sea (‘sur le meer’) used, have done or used;” and as to similar offen-ces committed within the body of the counties, the conservator, and two commissioners joined with him, are to make inquisition. So far as this statute may have been argued to disprove the jurisdiction of the admiralty in ports,, it admits of a decisive answer. 1. That the jurisdiction is special, and no more disproves the admiralty jurisdiction in ports, than on the high seas; or than that of the common law over offences against truces committed on land. 2. That, by this statute, the breaking of truces is declared treason, and is punishable, in the manner stated in the statute, by a special court; but it cannot, by implication, oust either the common law or admiralty of its jurisdiction over any other offences. 3. That if the argument could prevail, it would oust the jurisdiction of the admiralty over homicides and mayhems committed in great rivers beneath the first bridges, which has never been pretended.
Indeed, the argument derived from the collateral provisions of statutes, is generally unsatisfactory, and rarely conclusive; and if there be any weight in the present one, as an exposition of the true jurisdiction of the admiralty since the statutes of Richard II., it is completely counterpoised by other statutes.
It may be well, in this connexion, to take notice of another doctrine of the common law, viz. that where an act is done partly upon the land and partly upon the .sea, the admiralty is excluded-, Hence it is: said, that if a ship be taken at sea, and carried to a port within the body of a county, the admiralty loses its jurisdiction. 4 Inst. 140; 12 Coke, 79. It is difficult to comprehend what an act is, that can be done partly on the sea and partly on the land; and still more .difficult to perceive, how the bringing the
We have now considered the principal, if not all the reasons, which the courts of common law have advanced, to exclude the admiralty from jurisdiction in ports and havens.
■ On the other hand, the admiralty has strenuously contended, that the statutes of Rich-ard H. never intended to deny the jurisdiction in ports and havens, within the ebb and flow of the tide, and in great streams beneath the first bridges. It fortifies its pretensions by the consideration, that such was its undoubted jurisdiction in the reign of Edward HI., to which the statute of 13 Rich. II. c. 5, •appeals for a determination of its authority; that this-is the only statute, speaking affirm•atively in respect to the admiralty jurisdiction, declaring it to extend to things done -upon the sea; and that the sea (which in•cludes all waters as far as the tide flows) never was within the body of any county; that long after the statutes of Richard II., the admiralty continued to exercise jurisdiction in ports and havens (Exton, c. 17, p. '255); that it was recognised by the courts of •common law upon writs of procedendo and •consultation, in the reigns of Henry VIH. ■and Elizabeth (Exton, cc. 3, 10-13, 17-20, pp. "80-276), by. acts of parliament, and especially by St 28 Hen. VHI. c. 15; 32 Hen. VIII. c. 14; and 1 Eliz. c. 17 (Exton, c. 5, p. 104; Id: c. 20, p. 270; Zouch, 112); that it is confirmed by the forms of the commissions of the lord high admiral,, which, notwithstanding the statutes of Richard, have, for ages since, continued to include jurisdiction in ports and havens, and rivers beneath the first bridges (Zouch, 92); and, finally, that it seems admitted in 1632, by the concurrent opinion of all the twelve judges.
We are next led to the consideration of the Jurisdiction of the admiralty over-contracts. And here it is held by the courts of common law, that the jurisdiction is confined to contracts made upon the high sea, to be executed upon the high sea, of matters in their own nature maritime. These restrictions purport to be founded upon the construction of the statutes of Richard -H., -and more especially on that of 15 Rich. H. c. 3. There is, as we have already seen, no authority for them in any anterior reign; and it is certain, that before Richard’s time the admiralty did openly assert and exercise jurisdiction over maritime contracts. The statute of 13 Rich. H. c. 5, is the only one, which (as has been already stated) speaks in affirmance of the' admiralty jurisdiction, and it allows it of “things done upon the sea.” It is difficult, looking to the obvious intent of this statute, as explained in the preamble, and more fully in the petition, to which it was a response (Exton, 289, 290, etc.), to believe, that it meant to abridge the jurisdiction then claimed by the admiralty, except as to things on land within the ports of the realm. It meant to check its usurpations, and not to narrow its ancient rightful authority. And as to cases without the mischiefs of the statute, as contracts beyond seas, on which the com
Bet us now recur to that, which should, principally engage our attention, viz. the statute of 15 Rich. H. c. 3. It prohibits the admiralty from taking cognizance of “all manner of contracts, pleas and quereles, and all other things, done or arising within the bodies of counties, as well by land as by water.”' The whole question, as to the extent of this, prohibition, turns upon the legal meaning of the words “contracts, pleas and quereles arising within the bodies of counties,” for no particular stress can be laid upon the word “done,” as in every fair construction it must refer to its next antecedent, “other things.” In respect to “quereles,” if by this word be meant torts or injuries in rem, or in per-sonam, the jurisdiction would seem limited to the place where the act is done, for there it may be said properly to arise. If “complaints or controversies” be meant (as would seem to be the critical sense), the place where they arise must depend upon the subject matter; if torts or injuries "in rem, they arise, where the acts are done; if contracts or personal rights, they arise where the performance or breach of performance, or other invasion of right, takes place. The same observation applies to “pleas” or actions, for “ex facto jus oritur, et actio oritur ex delicto.” In a more enlarged sense, “controversies, pleas and actions” arise, where the law has appointed the forum competent to try them. Such are the forum rei sitae, the forum domicilii, the forum maleficii, &c. which depend upon the municipal regulations of each particular country. See Pothier’s Pandects, lib. 5, tit 1, § 35, etc. In respect to “contracts, ” these may be said to arise, where they originate or are made, or, with equal propriety, where they are to be executed or performed. So it is laid down in the civil law, “Contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit” (Dig. lib. 44, tit 7, 1. 21; 2 Emer. 331); “Contractum autem non uüque eo loco intelligitur, quo negotium gestum sit, sed quo solvenda est pecunia” (Dig. lib. 42, tit. 5, 1. 3; Exton, 323; Hein. Element Pandect pars. 2, § 36). Huberus (De Foro Oompet. § 53) asserts the same doctrine; “Non eum esse locum contractus sem-per, ubi negotium inter partes celebratum, sed ad quern contrahentes respexerunt.” The common law has adopted the same doctrine, for it construes a contract by the law of the place, where it is to be performed or executed, and not simply the place of its origin. And it now sustains actions in its own courts upon foreign contracts, solely upon the ground, that such contracts are not local, but exist or arise in every place, where the debtor is found. It proceeds yet further, and takes cognizance of torts and injuries to persons and property without the realm, both
Ret us now proceed to consider these various decisions. And, in the first place, it is held, that the admiralty has no jurisdiction •over matters done upon, land in foreign parts. 4 Inst. 134, 139. It ought to be observed, that .the admiralty never did claim, as of right, the cognizance of torts or injuries in rem or in personam in foreign countries, nor of contracts made there, which were not of a maritime nature. It may sometimes have entertained suits of a different kind; but the limit; which upon principle it has prescribed to itself, has been to decline all jurisdiction except of foreign maritime contracts.
The doctrine, that the admiralty is ousted by a concurrent jurisdiction of the common law, would, if true, completely destroy its authority in all cases, except of prize; for, in all others, the common law has now acquired or claimed a concurrent jurisdiction. It cannot, therefore, be maintained. There would be a much stronger reason for contending, upon sound principles, that, where the admiralty possessed jurisdiction, the common law ought to be excluded. As little foundation is there for the suggestion, that this is a proper construction of the statute of 15 Rich. II., c. 3. Contracts made at sea certainly “arise” there in the sense of the term assumed by the coftimon law, and the admiralty jurisdiction ought therefore to attach. And so the court, in an anonymous case in Cro. Eliz. 685, held, and said, that when the original cause ariseth upon the sea-, and other matters happen upon the land depending upon the original cause, those matters, although done upon land, shall be tried in the admiralty; and this decision was approved in a still later case.
Another and leading principle, asserted at common law, is, that the admiralty hath no jurisdiction, though the thing be done or happen at sea, if the original of the act was upon land. Hence, it is held, if a contract be made at land for any maritime business or thing, to be performed upon or beyond the seas, and there be a breach upon or beyond the seas, the cognizance belongs exclusively to the common law. This, it is said, is a necessary result from legal principles, for the contract and breach are both requisite to maintain an action, and as both are not “done or made upon the sea,” the admiralty-cannot claim any jurisdiction. It would be a waste of time to go over the different cases in the books, in which, upon this ground, prohibitions have been granted on account of suits in the admiralty on charter parties, affreightments, and other maritime contracts. With a few exceptions they are ranged on one side, and in general state the decision without condescending to illustrate it by any reasons or argument. 4 Inst. 134, 138, 139; Anon., Moore, 450; Bylota v. Pointel, Dyer, 159; Bend. & D. 58; Johnson v. Drake, 1
Much, indeed, that might be- properly urged on this head, has been anticipated in another place. It has been already shown; 1. that in reason and law a contract may be said to “arise,” as well where it is executed, as where it is made; 2. that contracts made af land, to be executed at sea. were originally within the admiralty jurisdiction; 3. that contracts, pleas and quereles, whereof part of the facts arise on land, and part at sea, may well support a concurrent jurisdiction of the common law ■ and- the admiralty, since, in respect to each, -a principal matter arises within its cognizance; and 4. that this construction Is consistent with the words of the statutes of Richard II., and avoids all the incongruities of the decisions of the common law. These doctrines are yet further supported by authority. By the statute of 32 Hen. VIII., -c. 14, cognizance was expressly given to the'.admiralty over charter parties and affreight-ments within the purview of -that act.' Zouch, 100; Prynne’s Animad. 121, 122. In -the agreement of the judges in 1575, and again-in that of the twelve judges in 1632, the admiralty jurisdiction in these cases is admitted in the most ample and explicit manner.
Nor do these authorities stand alone. They are corroborated by the early practice of the •admiralty, immediately after the passage of the statutes of Bichard; by the recognition of'that practice in the courts of chancery- and common law, in granting-commissions of appeal and writs of procedendo and consultation in the respective reigns of Richard TL, Henry TV.,-Henry VIH., Elizabeth, James -I., and Charles I. • (Exton, cc. 7-9, pp. -338-394; Spanish Ambassadour v. Plage, Moore, 814); by -subsequent- common -law decisions scattered in the- reports (Tasker v. Gale, 6 Vin. Abr. p. 527, pl. 19, 21. And see Godfrey’s Case,-Latch, 11; Smith v. Tilly, 1 Keb. 712); and lastly, by the uniform language of the commissions of the lord high admiral, granted since the statutes of Bichard H.. which confer the most ample jurisdiction over all maritime contracts.
There is also an exception to the doctrine, which we have been considering, (viz. that the admiralty hath no jurisdiction, where the contract is made at land, although :to be executed at sea) which is wholly irreconcilable with the construction attempted to be given by the -common lawyers to the statutes of Richard II., and with every genera)-principle, for which they contend. I allude to the acknowledged right of the admiralty to entertain suits for mariners’ wages. • The history of this exception is highly instructive; and cannot be studied with too much attention by those, who are in -search of the true exposition of the statutes of Richard H., and the rightful jurisdiction of the admiralty.
It was at first held, that the admiralty had no jurisdiction over mariners’ wages, because the contract was made on land. Dyer, p. 159, note 38. And the earliest case in the Reports,'in which the jurisdiction was affirmed, is in the 19th year of James I. Anon., Winch. 8. A prohibition was there prayed for and denied, “because he did not sue his prohibition in due time, viz. before a judgment given in the admiralty court, which in point of discretion they disallowed; and also these are poor mariners, and may not be delayed of their wages so long, and, besides, they may all join in a libel in -the
The grounds, upon which this exception has been supported, remain 1o be considered; and the different reasons, which have been assigned by different judges, may be «arranged under the following heads:—1. That it is more convenient for seamen to sue in the admiralty, because they may all join in one suit. Anon.. 1 Vent. 146; Wells v. Osmond. 6 Mod. 238, 2 Ld. Raym. 1044; Clay v. Sudgrave, 1 Salk. 33, 1 Ld. Raym. 576; 12 Mod. 405; Howe v. Happier, 4 Burrows, 1944; Ross v. Walker. 2 Wils. 264; Anon., 8 Mod. 279; Mills v. Gregory, Sayer, 127. 2. That by the maritime law, if the ship perish by the mariners’ default, they are to lose their wages; which (it should seem from this reason) would be otherwise due at common law. Anon., 1 Vent. 146. 3. That the true reason is, that though the contract be made on land, yet the ship is made liable for the wages. Wells v. Osmond, 6 Mod. 238, 11 Mod. 31, 2 Ld. Raym. 1044; Clay v. Sudgrave, 1 Salk. 33; Hook v. Moreton, 1 Ld. Raym. 397; Ross v. Walker, 2 Wils. 264. 4. That mariners’ wages grow due to them for labor or service done at sea, and the charter and contract at land is only to ascertain their rate. Coke v. Cretchet, 3 Lev. 60; Howe v. Happier, 4 Burrows, 1944. 5. That it is not on account of the service done at sea, but because they are mariners, and the suit is for mariners’ wages: and therefore, if the service be done in port, and the voyage be abandoned, the mariners may still sue for their wages in the admiralty. Wells v. Osmond, 6 Mod. 238, 11 Mod. 31, 2 Ld. Raym. 1044; S. P., Anon., 1 Vent. 343; Mills v. Gregory, Sayer, 127. That the jurisdiction of the admiralty over mariners’ wages is an ancient concurrent jurisdiction, as ancient as the. constitution itself. Brown v. Benn, 2 Ld. Raym. 1247; S. P., Queen v. London, 6 Mod. 205. 7. That it is expressly against the statutes of Richard II.; and is a mere indulgence, and is now grounded upon the maxim “quod com-munis error facit jus” (Clay v. Snelgrave, 1 Ld. Raym. 576, 1 Salk. 33; 12 Mod. 406), and nothing but constant practice affirms it (Opy v. Adison, Id. 38; 1 Salk. 31; Day v. Searl, Cunn. 32; 7 Mod. 206); and it is not de jure, but by indulgence (Ewer v. Jones, 2 Ld Raym. 934; Day v. Searl, Cunn. 32; 7 Mod. 206; Ridg. 53; 2 Barnard, 419).
A short review of these reasons may not be without use. As to the first, it cannot of itself furnish any solid ground for vesting a jurisdiction otherwise unauthorized. It is an argument merely ab inconvenienti; and, besides, the jurisdiction exists equally, whether one or many mariners sue. Alleson v. Marsh, 2 Vent. 181; Hook v. Moreton, 1 Ld. Raym. 397. The second is founded upon a supposition, that the common law would, in the given case, decide differently from the maritime law, which is not true. The third is not universally true, or rather does not universally apply, for a suit may be maintained for mariners’ wages in the admiralty, as well in personam, as in rem. It is an entire mistake, that its jurisdiction is in general limited to proceedings in rem. Alleson v. Marsh, 2 Vent. 181. The fourth is in direct hostility to the construction0of the common law, as to all other maritime contracts, and if correct, furnishes a complete recognition of the general doctrine of the admiralty. See Abb. Shipp, p. 4, c. 4, § 1. The fifth is a virtual contradiction of the fourth, and puts the jurisdiction upon the personal privilege of the parties, not upon the nature or the place of the service done, a distinction at war with the statutes of Richard, and not easily reconcilable with the case of Ross v. Walker, 2 Wils. 264. The sixth reason is undoubtedly well founded, and is a complete answer to the laborious commentaries of Lord Coke. But the reason is in itself of no weight, unless it is admitted, that the statutes of Richard II. were not intended to abridge any part of the original rightful jurisdiction of the admiralty, but only to check its usurpations over contracts made at land unconnected with maritime business. In this view it has a most important bearing. The seventh and last reason is indeed extraordinary. It may be truly observed, in the pointed language of Mr. Douglas (Wilkins v. Carmichael, 1 Doug, p. 101, note 1), “surely it is not consonant to legal principle to hold, that any usage or common error can abrogate a statute to any purpose, or give legality to what an act of parliament expressly prohibits.” It may be added, that all these reasons, except the fourth and sixth, have not the slightest connection with any possible construction of the statutes of Richard II.; and the fourth and sixth, if they are correct in principle, sustain the whole superstructure of the admiralty jurisdiction over all maritime contracts.
In respect also to mariners’ contracts, certain distinctions seem to prevail at common law. which are as purely arbitrary and irreconcilable with sound principle, and the statutes of Richard II., as any, which have been mentioned. I allude to the distinctions, that although mariners may sue in the admiralty for their wages for services wholly rendered in port, or in navigating from port to port
The next distinction, as to the contract’s being unaer seal, is no where very fully explained. In Bridgeman’s Case, Hob. 11, it is said to be, because an obligation takes its course and binds according to the common law, which would seem to be no reason at all A more plausible reason is, that the civil law requires two witnesses to prove a sealed instrument,
The other distinction, as to the contract containing unusual covenants and stipulations, is quite as unsatisfactory. It is said in its support, that if the contract for service be made upon terms and conditions differing from the general rules "of law, the service alone cannot entitle a mariner to his wages; his right then must depend upon the performance of the stipulated terms; and the construction of the instrument containing those terms is a proper subject for the jurisdiction of the courts of common law. Abb. Shipp, pt 4, e. 4, § 3. The construction of a written instrument is a proper subject for every court having cognizance of the subject matter; and this rule is equally as applicable to the admiralty, as to any other court. The admiralty certainly has cognizance of written contracts in many cases, as of bottomry, and ransoms; and it was never yet heard of, that it had no right to put an interpretation upon these instruments. Even in relation to written contracts for mariners’ wages, its jurisdiction is not contested; and if wages are to be decreed, or denied, it is impossible for the court to do either, with justice, unless it looks into and construes the contract And it would be worse than idleness to contend, that the rules of construction are different in sealed and unsealed instruments. The other ground is more specious, but not more solid. It is not true, in any ease, that the wages are due merely because the service is performed. It must be performed according to the express stipulations of the parties, even in the usual form of the contract, or according to the implied stipulations resulting from the mari: time law, where that is silent, otherwise the wages will not grow due. And there is no more reason, why courts of common law should have the exclusive construction of written agreements of an unusual sort, than of those upon the ordinary terms. Do these courts vainly imagine that the admiralty cannot construe maritime contracts with as much equity, sound principle, and good sense, as themselves? It is some pleasure'to find, that the soundness of this distinction has, at least in one case, been denied. Benns v. Parre, 2 Ld. Raym. 1206.
All these distinctions are entirely aside from any construction of the statutes of Richard; and if they are to be held as law, they are limitations of judicial discretion in granting “indulgences,” which seem nearly allied to the maxim, “Sic volo, sic jubeo, stet pro rations voluntas.” See 2 Brown, Adm. 94, 96, 104.
It has been further asserted, that the admiralty has jurisdiction, only when the parties have bound themselves in rem; for, if they have bound themselves personally, its jurisdiction is said to be ousted. Per Buffer, J., in Menetone v. Gibbons, 3 Term R. 267, 270. And see Ouston v. Hebden, 1 Wils. 101. This doctrine is not pretended to be founded upon the statutes of Richard. let it is difficult to perceive, how it can be otherwise supi>orted; and no adjudged case rests singly upon it Indeed, in the very case in which it was alluded to (viz. a maritime hypothecation), the usual form of the instrument includes a personal obligation or covenant All the forms, which have fallen under my notice, are of this nature, and the customary instrument a bond, necessarily includes a personal liability. See the forms on Abb. Shipp. Append. Nos. 1-3; Glover v. Black, 3 Burrows, 1394; Marsh. Ins. bk. 2, c. 1, p. 733, etc., and Append. No. 5; 1 Magens, Ins. 25; Molley, De Jim. Mar. bk. 2, c. 11, § 12; 2 Magens, 393; 3 C. Rob. Adm. 31. Yet it is. conceded on all sides, that of maritimehypoth-ecations the admiralty has jurisdiction. The case of mariners’ wages also involves a personal contract, and nothing is more common, than a libel against the master or owner in personam. In respect also to personal torts on the high seas, such as assaults and batteries, the process is necessarily in personam (2 Brown. Adm. 106, 110, 396, 397), and the same process is familiarly applied in matters of prize (Smart v. Wolff, 3 Term R. 323). So far indeed is it from being true, that the admiralty has no right to proceed except in rem, that in former times, and down to the reign of James I., its proceedings were almost altogether in personam, as they must still be, when the process in rem becoipes inapplicable or inefficient. See Spark v. Stafford, Hard. 183; Clerke, Prax. passim; 2 Brown, Adm. 396, 397. The dictum, which we are now considering, seems indeed to have no better or higher origin, than that of a mere inference from the position, that where the common law has jurisdiction, the admiralty is excluded.
We have now finished our review of the doctrines, which the courts of common law have held in the interpretation of the statutes of Richard II. It has been shown, that the decisions are not reconcilable with each other, or with the words of the statute, or with any sound and uniform principle • of
In addition to the considerations, which have already been submitted, against the common law interpretation of these statutes, there are no small difficulties, which still remain behind. Whole classes of cases are yet within the acknowledged cognizance of the admiralty, which are at war with that interpretation, and can be sustained only upon the more liberal and consistent doctrines of tlie admiralty. I have already stated the cases of the execution of foreign sentences, and of foreign maritime hypothecations. These are not alone. Until a comparatively modern period, notwithstanding the statutes, the admiralty exercised undisturbed jurisdiction over petitory or proprietory suits (The Aurora, 3 O. Bob. Adm. 13G; 2 Brown, Adm. 114, etc.; Clerke, Prax. tit. 42, 41); and it still continues, with the approbation of the common law, to entertain suits, 1. For possession of ships. 2. Upon controversies among part owners as to the employment of ships, and 3dly, Stipulations made on land in causes pending in the court. This last ‘class may properly be deemed a mere incident to the cognizance of-the principal cause; yet the common lawyers resisted it, as an infringement of the statutes, and it was not finally established in favor of the admiralty, until after a struggle for a century. 4 Inst 135; Zouch, 125; Par v. Evans. T. Raym. 78; Degrave v. Hedges, 2 Ld. Raym. 1285; Justice v. Brown, Hard. 473. But, as to the four remaining classes, the admiralty has had jurisdiction from the highest antiquity; and yet these are not “things done upon the sea.” It is therefore a necessary inference, cither that the common law interpretation is too narrow, and ought to be rejected; or that these authorities, still allowed to be exercised, are gross usurpations. That the latter construction is correct will not be affirmed by any person, who has examined the subject with due diligence and candor. That the former is dictated by general reasoning, public convenience, and great weight of authority, will scarcely be denied. Nay even the prize jurisdiction imperiously demands a similar doctrine, at least so far as it is exercised over prizes captured in rivers, creeks or ports, accessible to the sea; and on land by naval forces. Lindo v. Rodney, Doug. 613, note. See Hubbard v. Pearse, cited in Le Caux v. Eden, Doug. 594, 606. note. For whether, as seems the better opinion (Bob. Coll. Marit preface Til.) the prize jurisdiction be an im. memorial and inherent attribute of the admiralty, or depend upon the commissions issued from time to time during wars, the words of the statutes of Bichard as much apply to the prize as to the instance court. And if the prize commission be evidence, that, notwithstanding the statutes, the comí may take cognizance of captures in creeks and ports, the ordinary commission of the admiralty is just as good evidence of the extent of its ordinary jurisdiction in the same places.
Considerations and consequences, like those, which have been mentioned, cannot but forcibly impress every one, who has examined this subject with accuracy and diligence, and lead to the conclusion (adopted by Dr. Brownl that the jurisdiction of the admiralty depends, or ought to depend, as to contracts, upon the subject matter, i. e. whether maritime or not; and as to torts, upon locality, i. e. whether done upon the high sea, or in ports within the ebb and flow of the tide, or not. 2 Brown, Adm. 88, 90, 110. Such is the limit of its jurisdiction, which the admiralty has strenuously asserted at all times, notwithstanding a torrent of prohibitions has compelled it to yield its rights to superior authority. Even in our own times, it has vindicated some of its ancient claims (Velthasen v. Ormsley, 3 Term R. 315; Smart v. Wolffe, Id. 323;
On the whole, the result of this examination may be summed up in the following propositions. 1. That the jurisdiction of the ■admiralty, until the statutes of Richard II., -extended to all maritime contracts, whether executed at home or abroad, and to all torts, injuries, and offences, on the high •seas, and in ports, and havens, as far as the •ebb and flow of the tide. 2. That the common law interpretation of these statutes •abridges this jurisdiction to things wholly and exclusively done upon the sea. 3. That this interpretation is indefensible, upon principle, and the decisions founded upon it are inconsistent and contradictory. 4. That the interpretation of the same statutes by the admiralty does not abridge any of its ancient jurisdiction, but leaves to it cognizance of all maritime contracts, and all torts, • injuries and offences, upon the high sou, and in ports as far the tide ebbs and flows. -5. That this is the true limit, which upon principle would seem to belong to the admiralty; that it is consistent with the language and intent of the statutes; and is supported by analogous reasoning, and public convenience, and a very considerable weight of authority. 6. That under all the circumstances, the courts of law and of admiralty in England are not so tied down by a uniformity of decisions, that they are not at liberty to entertain the question anew, and to settle the doctrines upon their true principles; and that this opinion is supported by some of the best elementary writers in that kingdom.
But whatever may in England be the binding authority ;of the common law decisions upon this subject, in the United States we are at liberty to re-examine the doctrines and to construe the jurisdiction of the admiralty upon enlarged and liberal principles. The constitution has delegated to the judicial power of the United States cognizance “of all cases of admiralty and maritime jurisdiction;” and the act of congress (Sept. 24, 1789, c. 20, § 9) has given to the district court “cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost navigation or trade, of the United States, where the seizures are made on waters navigable from the sea by vessels of ten or more tons burthen; within their respective districts, as well as upon the high seas.”
What is the true interpretation of the clause “all cases of admiralty and maritime jurisdiction?” If we examine the etymology, or received use, of the words “admiralty” and “maritime jurisdiction,” we shall find, that they include jurisdiction of all things done upon and relating to the sea, or, in other words, all transactions and proceedings relative to commerce and navigation, and to damages or injuries upon the sea. Cowell, Interpreter, voce “Admiral;” Spel. Gloss, voce “Admiral,” sub finem; Godolph. Jur. c. 1; 1 Valin, Comm. 1; Seld. De Dom. Mar. lib. 2. c. 16, p. 160; Stypman, Jus. Marit par. 1, c. 6, pp. 76, 77; Id. par. 5, c. 1, p. 602; Loccenius, Jus. Marit lib, 2, c. 2. In all the great maritime nations of Europe, the terms “admiralty jurisdiction” are uniformly applied to the courts exercising jurisdiction over maritime contracts and concerns. We shall find the terms just as familiarly known among the jurists of Scotland, France, Holland and Spain, as of England, and applied to their own courts, possessing substantially the same jurisdiction, as the English admiralty in the reign of Edward the Third.
As to the first exposition, it is difficult to perceive upon what ground it can be reasonably maintained, for it would enlarge and limit the jurisdiction by the provisions of statutes, which have been enacted for the government and regulation of the high court of admiralty, and which proprio vigore do not extend to the colonies. It would further involve qualifications of the jurisdiction, which are perfectly arbitrary in themselves, inapplicable to our situation, and contradictory to the commissions and practice of the vice admiralty colonial courts. Even if this exposition were to be adopted, are we to be governed by the doctrines of the common law, or of the admiralty? I am not aware of. any superior sanctity in the decisions at common law upon the subject of the jurisdiction of other courts (to which at least ihey bore no good will), which should entitle them to outweigh the very able and learned decisions of the great civilians of the admiralty. And where could we so properly search for information on this subject, as in the works of those jurists, who have adorned the maritime courts from age to age, and made its jurisdiction the pride and study of their lives?
The second exposition is liable to the same objections; for it is clear, that the statutes of Richard do not extend in terms to the colonies, and it is quite certain, that they were not included in any supposed mis-chiefs, for they then had no existence. Besides, it is a very material consideration, that, at the emigration of our ancestors, the contest between the courts of common law and the admiralty was at its height; and very soon after (in 1632) it was. by the agreement of the twelve judges, decided in favor of the admiralty. And here again it may be asked, whose doctrines are to be adopted, those of the common law or of the admiralty ?
The third exposition requires an examination of the authority and powers of the vice admiralty courts in the United States under the -colonial government In some of the-states, and probably in all, the crown established, or reserved to itself the right to establish, admiralty courts;
The clause however of the constitution not only confers admiralty jurisdiction, but the word “maritime” is superadded, seemingly ex industria, to remove every latent doubt. “Cases of maritime jurisdiction” must include all maritime contracts, torts and injuries, which are in the understanding of the common law, as well as of the admiralty, “causae civiles et maritimaei” In this view there is a peculiar propriety in the incorporation of the term “maritime” into the con
At all events, there is no solid reason for construing the terms of the constitution in a narrow and limited sense, or for ingraft-ing upon them the restrictions of English statutes, or decisions at common law founded on those statutes, which were sometimes dictated by jealousy, and sometimes by misapprehension, which are often contradictory, and rarely supported by any consistent principle. The advantages resulting to the commerce and navigation of the United States, from a uniformity of rules and decisions in all maritime questions, authorize us to believe that national policy, as well as juridical logic, require the clause of the constitution to bt so construed, as to embrace all maritime contracts, torts and injuries, or, in other words, to embrace all those causes, which originally and inherently belonged to the admiralty, before any statuta-ble restriction. And most cordially do I subscribe to the opinion of the learned Mr. Justice Winchester, in the case already cited (Stevens v. The Sandwich [Case No. 13,409]), “that the statutes- of Richard II. have received in England a construction, which must at all times prohibit their extension to this country,” and “that no principles can be extracted from the adjudged cases in England, which will explain or support the admiralty jurisdiction, independent of the statutes or the works of jurists, who have written on the general subject” Indeed the doctrine that would extend the statutes of Richard to the present judicial power of the United States seems little short of an absurdity. It is incorporating into the text of the constitution an exception, not only unauthorized by its terms, but wholly inappropriate in phraseology to any other realm than England. We have not as yet any “admirals or their deputies;” we do not refer their jurisdiction to the reign of “the most noble King Edward the Third;” much less would an American citizen dream, that the constitution authorized the admiralty “to arrest ships in the great flotes for the great voyages of the king and of the realm;” and “to have jurisdiction upon the said flotes during the said voyages only,” and “saving always to the king all manner of forfeitures and profits thereof coming,” and “to the lords, cities and boroughs their liberties and franchises.”
There are moreover decisions of the courts of the United States, which completely establish the proposition, that the statutes of Richard, and the common law construction of them, do not attach to this clause of the' constitution. We have already seen, that the courts of common law, after these statutes, held, that the admiralty had no jurisdiction of things done within the ebb and flow of the tide, in ports, creeks, and havens. It has, notwithstanding, been repeatedly and solemnly held by the supreme court, that all seizures under laws of impost, navigation and trade, on waters navigable from the sea by vessels of ten or more tons burthen, as well within ports and districts of the United States, as upon the high seas, are causes of admiralty and maritime jurisdiction. U. S. v. La Vengeance, 3 Dall. [3 U. S.] 297; Same v. The Sally, 2 Cranch [6 U. S.] 406; Same v. The Betsey and Charlotte, 4 Cranch [8 U. S.] 443. This limitation, as to the place of seizure, is prescribed by an act of congress (Act Sept. 24, 1789, c. 20, § 9 [1 Stat. 70]), but it is perfectly clear, that congress have no authority to include cases within the admiralty jurisdiction, which the terms of the constitution did not warrant. And the ground is made stronger by the consideration, that the right
On the whole, I am, without the slightest hesitation, ready to pronounce, that the delegation of cognizance of “all civil cases of admiralty and maritime jurisdiction” to the courts of the United States comprehends all maritime contracts, torts, and injuries. The latter branch is necessarily bounded by lo.cality; the former extends over all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations,) which relate to the navigation, business or commerce of the sea.
The next inquiry is, what are properly to be deemed “maritime contracts.” Happily in this particular there is little room for controversy. All civilians and jurists agree, that in this appellation are included, among other things, charter parties, affreightments, marine hypothecations, contracts for maritime service in the building, repairing, supplying, and navigating ships; contracts between part owners of ships; contracts and quasi contracts respecting averages, contributions and jettisons; and, what is more material to our present purpose, policies of insurance. S. P. Johnson, J. in Croudson v. Leonard, 4 Cranch [8 U. S.] 434; Cleirac, Le Guidon, c. 1, p. 109; Id. c. 3, p. 124; Id. Jurisd. de la Marine, p. 191; 1 Valin, Comm. 112, 120, etc., 127, etc.; 2 Emer. 319; Godolph. 43; Zouch, 90, 92; Eaton, 69, etc., 295, etc.; Malyne, Lex Merc., 303; Id., Collection of Sea Laws, c. 2, p. 47; Consol. del Mare. c. 22; 2 Brown, Adm. c. 4, p. 71; 4 Bl. Comm. 67; Stevens v. The Sandwich [supra]; Targa, Reflex, c. 1. And in point of fact the admiralty courts of other foreign countries have exercised jurisdiction over policies of insurance, as maritime contracts; and a similar claim has been uniformly asserted on the part of the admiralty of England. 2 Boucher, Consol. del Mare, p. 730; 1 Valin. Comm. 120; 2 Emer. 319; Roccus de Assec. note 80; 2 Brown, Adm. 80; Zouch, 92, 102; Molloy, bk. 2. c. 7, § 18. There is no more reason why the admiralty should have cognizance of bottomry instruments, as maritime contracts, than of policies of insurance. Both are executed on land, and both intrinsically respect maritime risks, injuries and losses.
My judgment accordingly is, that policies of insurance are within (though not exclusively within) the admiralty and maritime jurisdiction of the United States.
In making this decree, I am fully aware, that from its novelty it is likely to be put to the question with more than usual zeal; nor can I pretend to conjecture, how far a superior tribunal may deem it fit to entertain the principles, which I have felt it my solemn duty to avow and support Whatever may be the event of this judgment, I shall console myself with the memorable words of Lord Nottingham, in the great case of the Duke of Nor folic, 3 Ch. Cas. 52: “I have made several decrees, since I have had the honor to sit in this place, which have been reversed in another place; and I was not ashamed to make them, nor sorry when they were reversed by others.”
“Ordonne estoit a Hastynges par le Boy Edw. le premier et ses seigneurs, que comment
Burrough, Sovereign, 8; Godolph. 28; 4 Inst. 142; Prynne on 4 Inst. 109; Selden de Dom. lib. 2, cc. 19, 24, 28; Exton, 58. After reciting the immemorial right of the King of England to the sovereignty of the British seas, and the right to make laws to regulate navigation, and to keep the peace, in those seas, it proceeds: “Et A de B.. admiral de la dit mier, deputey par le roy d’Engliterre et tous les aultres admirals par mesme celui roy d’Engliterre et ses ancestors, jades roys d’Engliterre, eussent est en paiseable possession de la dit sovereign garde, ove la conisance et justice et tous les aultres appurtenances avantditz, &c. especialment pur empechement metre et justice faire, surete prendre de la pees de tout manere de gentz usantz armes en la dit mier ou menans niefs aultrement appareilles ou gamies, que n’appartient au nief de marchants, et en aultres points, en queux homme poit avoir reasonable cause de suspicion vers eux de robbery ou des aultres mesfaitz.”
The article stands thus: “Item, ad finem quod resumatur et continuetur. ad subditorum prosecutionem, forma procedendi quondam or-dinata et inchoata per avum domini nos'.ri re-gis (Evardum I.) et ejus consilium, ad retinen-dum et conservandum antiquam superioritatem maris Angliae et jus officii admirallatus in eodem, quoad corrigendum, interpi standum, declarandum, et conservandum, leges et stat-uta per ejus antecessores, Angliae reges, dudum ordinata ad conservandum pacem et justiciam inter omnes gentes natjo-nis cujuscunque per mare Angliae transeúntes, et ad eognoscendum super omnibus in contrarium attemptatis in eadem, et ad puniendum delinquentes, et dam-na pacis satisfaciendum; quae quidem leges et statuta per Dominum Riebardum, quondam re-gem Angliae. in reditu suo a terra sancta cor-recta fuerunt, interpretata, declarata et in in-sula Oleron publicata, et nominata in lingua Gallicana ‘Le Roy Oleroun.’ ” Burrough, Sovereignty, 10; Selden de Dom. lib. 2. cc. 32, 24; Godolph. 143; 4 Inst. 144; Exton, 25, 61.
“Soit enquis de tous ceulx qui empledent aueuns merchant, mariner, ou autre homme quelconque a la commune ley de la terre ap-partenant a ley marine d’auncien droit. Soit. enquis de tous juges, qui tiennent devant ceulx aueuns plees appartenants par droiture a la Court de 1’Admiraltie.” Or as Roughton renders it, “Inquiratur de hiis. qui implacitant ali-quos, alibi quam in curia admiralitatis, de his ñegotiis seu causis, quae ad forum admiralitatis pertinere noseuntur.” Rough, art. 18. and note C 33, D 51. D 52; Clerke. Prax. 120; Rough, art. 38; Clerke, Prax. 143.
“Soit enquis de tous mariners, qui mettent en violence main, ou battent leur maistres en-contré les loys de la mer et statuts d’Oleron sur ce faitz.” Rough, art. 25, note D 45; Clerke, Prax. 129; Rough, art. 26, D 16; Clerke, Prax. 131.
“En primes pour faire droit et due justice a ’toutes parties, si bien poursuyants eomme defendants, en la Cour de l’Admiraltie, est de faire sommaire et plain process selon loy mar-isne et anciennes eoustmnes de la mer.” Clerke, Prax. 100, D 71.
The words of this commission are: “Dan-tes ei plenam, tenore patentium. potestatem au-diendi querelas omnium et singulorum de hiis, quae officium admiralli tangunt. et cognoscendi in causis maritimis, et justitiam faciendi, et excessus eorrigendi. et delinquentes juxta eorum demerita castigandi, puniendi, ineareerandi. et incarceratos, qui deliberandi fuerint, deliber-andi, et omnia alia, quae ad officium admiralli pertinent, faciendi, &c., &c.” Exton, 3, 294. -
S. W. 50, Hen. III. cited in Selden on Fort-escue de Laud, c. 32, note e; Register Brev. 95. “Quare vi et armis quandam navem ip-sius A. precii decern librarum apud H. invent-ara cepit et abduxit, et bona et catalla sua ad valentiam viginti librarum in eadem navi in-venta cepit et asportavit.”
Register Brev. 95b. “Quare vi et armis 60 lagenas de quodam dolio vini ipsius W. precii quinqué marcarum in navi predict! I. apud S. posito, abinde usque S. ducendo, extraxit, et dolium illud aqua marítima implevit, per quod &c.”
“Et ne pur la ley de mariner.”
See, also, Spelman, Reliq. 217; 40 Assizes, 25; Zouch, 114; 2 Hale, P. C. 17; Sea Laws Treatise Dom. Sea, 145; and Exton, 121, etc., where he comments very satisfactorily on this very case.
“Que les admiralx et leur deputees ne soi mellent desorenavant de nulle chose fait deinz le Roialme, mais soulement de chose fait sur le meer selonc ceo q’ad este duement use el temps du noble Roy Edward aiel nostre seigneur le roy q’or est.”
“Contractees, plees et quereles.”
“Faite ou sourdantz.” Exton, omits “ox”
“Pountz.”
Those who have curiosity to indulge in such speculations may receive a great deal of
It is not a little, remarkable, that no actions founded on this statute, for an alleged tort or trespass in ports, are cited in the books, except this case and two others (12 Hen. VI. rot. 123, 124; 4 Inst. 138, 139), which do not appear to have been adjudged. All the other cases reported are upon contracts. Dyer, 159; Godb. 3S5; Cro. Jac. 603; 1 Rolle, 415; 3 Bulst. 205; 31 Hen. VI. in 4 Inst. 138. The prohibitions so frequent in the books were probably founded on the statute. 15 Rich. II. c. 3.
“Le lieu et les ehoses dount ils tiendront plea sont hors del roialme.”
This is probably a wrong citation, for there is no case at all applicable to the subject in the year book of that year.
Lord Hale manifestly considers, that the mere circumstance, that the place is within the body of a county, does not exclude the admiral ty jurisdiction, for, after speaking of the narrow sea, as being within the body of a county or without, he adds, that, in this sea. the king exercises his right of jurisdiction ordinarily by his admiral. De Port Mar. c. 4.
Leigh v. Burley, Owen, 122; 2 Brownl. & G. 37; Violet v. Blague, Cro. Jac. 514; 2 Rolle, 49; Moore, 891; Willets v. Newport, 1 Rolle, 250; Dorrington’s Case, Moore, 916; Trinity House v. Boreman, 2 Brownl. & G. 13; Butler v. Thayer, Id. 29; Goodwin v. Tomkins, Noy, 148; Tasker v. Gale, 1 Rolle, Abr. 533; 1, 19; Velthason v. Ormsley, 3 Term R. 315. The doctrine in Moore, 891, “that the coasts, shores, and harbors, are all out of the power of the admiral, except in the two eases allowed specially in St. 15 Rich. II,” is not law; for it is clear, that on the sea coasts, as far as the tide flows, the admiralty hath jurisdiction, when the sea is full.
Since the statute 28 Hen. Vlii. c. 15, the courts of common law still claim concurrent jurisdiction of the offences stated in that statute, committed in creeks and arms of the sea. 2 Hale, P. C. 18-54.
1 Leon, 270; Moore, 121. Lord Hale’s explanation, of. this judgment (2 Hale, P. C. 20) does not seem to comport with -the grounds of the decision, as stated in Leonard and Moore. In both reports, the case is put upon the point, that it was within the jurisdiction of the high commission court, under statute 28’Hen. VHI., and not (as Lord Hale supposes), the death being on land, by virtue of any common law commission. In the report in Moore, 121, the following additional opinion is imputed to' the court, that “by the statute 13 Rich. H., c. 5, the admiral himself is prohibited to intermed-dle with any thing within the body of the county, as all havens are. and. on that account. havens are not within the admiralty; yet all the land, upon which the water of the sea flows and reflows, is within the jurisdiction of - the admiralty.” This remark, in its obvious purport, seems to recognise the doctrine of the admiralty, that it has not jurisdiction in ports and havens, as such, and over the ports and haven towns, but only so far in the ports, &c. as the sea flows; and, if this be the true meaning, it seems to coincide with that avowed by Lord Hale. 2 Hale, P. O. 17.
2 Hale, P. C. 18. The words of the commission are given somewhat differently by Zouch, 112. The jurisdiction is thus described: “Tam in aut super mari aut aliquo portu, rivo, aqua dulci, creca seu loco quocunque, infra fluxum marls ad plenitudinem, a quibuseun-que primis pontibus versus mare, quam super .littus maris et alibi ubicunque infra ■ jurisdie-tionem nostram maritimam aut limites adrm-ralitatis regni nostri et dominiorum nostro-rum.” And see Zouch, 93, and 2 East, P.’.C. 795,-and Sir-L.-Jenkins’-Ghargé, 91, 92.: :.
“Likewise, the admiral may inquire of, and redress all annoyances and obstructions, in all navigable rivers beneath the first bridges, that are impediments to navigation, or passage to or from the sea, and, also, to try personal contracts and injuries there, which concern navigation on the sea.” Exton, 404; Zouch, 122; Agreement in 1632.
In Godfrey’s Case, Latch, 11, the opinion Of Doddridge, J., seems to assert, that the sea exr tends to tide waters in ports, for, when he speaks of a contract made on board of a ship at anchor, and says it is then made on the sea, he probably means at anchor-in port.-
The words of the statute of Rich. II. are “choses faits sur la mer.”
Tjpon this ground, the cases of Spanish Ambassadour v. Points, 2 Bulst. 322, 1 Rolle, 133; Don Alonso v. Cornero. Hob. 212, 2 Brownl. & G. 29: and Empringham's Case, 12 Coke, 84, may, consistently with the rightful claims of the admiralty,, be held good law.
In the agreement of 1575, it stands thus: “That the judge of the admiralty, according to such ancient order, as hath been taken by King Edward I. and his council, and according to the letters patent of the lord high admiral for the time being, and allowed by other kings of the land ever since, and by custom time out of memory of man, may have and enjoy cognition of all contracts and other things, rising as well beyond as upon the sea, without let or prohibition.” In the agreement, of 1632, it stands thus: “If suit be commenced in the court of admiralty upon contracts made, or other things personally done, beyond or upon seas, no prohibition is to be awarded.” Zouch, 121, 122; Exton, 443. So much, indeed, was the right to entertain suits upon foreign maritime contracts deemed as of course in the admiralty, that in Clerke, Prax. tit. 41, the mode of proceeding is pointed out without any intimation of doubt “Aiiquando etiam factor, vel negptiorum tuorum gestor in partibus trans- . marinis, signavit tibi quaedam bona ad tuum tísum vel oommodum. alius tamen ea detinet, vel iujuste oceupat, in his casibus obtmere potes warrantum,”. &c. &c.
One argument, and indeed a principal one, urged by Lord Coke against the admiralty jurisdiction over foreign contracts, is. that they are cognizable by the court of the lord constable and marshal, commonly called the “Court of Chivalry.” This argument is a full illustration of Mr. Justice Buller's remarks on Lord Coke’s (4 Inst. 134), respecting the admiralty. By the statute of 13 Rich. II. c. 2, the jurisdiction of the court of the lord constable and marshal is expressly limited to conusance “of contracts and deeds of jirms and of war out of the realm, and also of things which touch war within the realm.” Hence it is very clear, that it has cognizance of such contracts only •as touch deeds of arms and war (Zouch. 119; 2 Hale, P. C. 33; 3 Bl. Comm. -681; and consequently its jurisdiction over all other foreign contracts is excluded.
Spark v. Stafford. Hard. 183. In this case, there was a suit in the admiralty by the master of a ship against the owner, to recover the ■amount of a ransom for the ship, which was taken at sea by pirates, and the ransom money was paid by the master on land. Of course the suit was upon an implied contract of the owner arising from a payment on land for his benefit. The court denied a prohibition, “because the original cause of action arose upon the sea, and whatever followed was but ac-cessary and consequential, and therefore well determinable in the court of admiralty.” See; also, Godfrey’s Case,'Latch, 11.
The clause in the agreement of 1575 has been already quoted. In that of 1632 are the following: “If suit he before the admiral for freight or mariners’ wages, or for the breach of charter-parties for voyages to be made beyond the seas, though the charter-parties happen to be made within the realm; and though the money be payable within the realm, so as the penalty be not demanded; a prohibition-is not to be granted. But if suits be for. the penalty, or if the question be made, whether the charter-party be made or not, or whether the plaintiff did release or otherwise discharge the same within the realm, that is to be tried in the king’s court-at-Westminster, and not in "the king’s court of admiralty, so that first it be denied upon oath, that the charter-party was made, or a denial upon oath tendered.” “If suit shall be in the court of admiralty for building, amending, saving, or necessary ¡victualling, of a ship.
They are at least of as great weight, as the resolutions of the judges on a like occasion in the Articuli Cleri (3 Jae„), which, though not enacted in parliament, nor adjudged in any cause pending in court, Lord Coke himself declares, “being resolved unanimously by all the judges of England and barons of the exchequer, are for matters of law of the highest authority, next unto the court of parliament.” 2 Inst. 618. Sir Leoline Jenkins has remarked, that the agree ment of the judges in 1632, “was punctually observed. as to the granting and denying of prohibitions, till the late disorderly times (meaning the times of the usurpation) bore it down, as an act cif prerogative, prejudicial (as was pretended) to the common laws and the liberty of the subject.” An’d the same árticles were, in substance, re-enacted in the ordinance of parliament, in 1648, given in the next note. Sir L. Jenkins’: Works, Argumt. etc., p. 81.
This ordinance is given at large from Sco-bell’s Collection (147) in Mr. Hall’s valuable translation of Gierke, Prax. 24. The first section, after reciting the public inconvenience to trade through “the uncertainty of the jurisdiction in maritime cases,” enacts “that the court of admiralty shall have cognizance and jurisdiction against the ship or vessel with the tackle, apparel, and furniture thereof, in all ««.uses which concern the repairing, victualling, and furnishing provisions, for the setting of such ships or vessels to sea; and in all cases of bot-tomry, and likewise in contracts made beyond the:seas concerning shipping or navigation, or damages happening thereon, or. arising at sea in any voyage; and likewise in all cases of charter-parties, or contracts for- freight, bills of lading, or mariners’ wages, or damages in goods laden on board ships, or other damages done- by one -ship or vessel to another, or by anchors or want of laying of buoys, except always that the said court, of admiralty shall not hold pleas or admit actions upon any bills of exchange, or accounts betwixt merchant and merchant or their factors.” This ordinance, was made perpetual by another in 1654, but it fell with the other acts of the commonwealth upon the restoration of Charles H.
Zouch (92) has given a copy of the important elauses of one of those commissions. It authorizes the admiralty “to hold conusance of pleas, debts, bills of exchange, policies of assurance, accounts, charter parties, contractions, bills of lading, and all other contracts which may any ways concern moneys due for freight of ships hired and let to hire, moneys lent to be paid beyond the seas at the hazard of the lender, and also of any cause, business or injury whatsoever had or done in or upon or through the seas, or public rivers or fresh waters, streams, havens, and places subject to overflowing whatsoever within the flowing and ebbing of the sea, upon the shores or banks whatsoever adjoining to them or either of them from any of the said first bridges whatsoever towards the sea throughout our kingdoms of England and Ireland, in our dominions aforesaid, or elsewhere beyond the seas, or in any ports beyond the seas whatsoever.” And see collection óf sea laws (chapter 2, Malyne, 'Lex. Merc. p. 47). The clause in this commission, as to jurisdiction on the shores, would seem to refer to the meaning of the word “maritime,” as stated in Hawkeridge’s Case, 12 Coke, 129, where it is said that “maritima est super littus, or in portu maris.” Even Lord Hale felt himself bound to admit the antiquity of these Haims of the admiralty, while he endeavored to evade the force of the argument. Justice v. Brown, Hard. 473.
The civil law never requires two witnesses, nor indeed any witness, unless the execution of the deed is denied by the party on oath., which very rarely can happen. In this respect it holds the chancery rule, that if any fact be denied in the defendant’s answer on oath, his denial shall prevail, unless disproved by two witnesses, or one witness, and very strong corroborative circumstances.
In the United States courts, there could be no ground for this argument, since all those courts are courts of record.
In recent statutes, the prize jurisdiction is expressly given in ports and creeks; but the same jurisdiction was exercised by the admiralty before any statutes were made to this effect, as a part of its original powers. See Nabob of the Carnatic v. East India Co., 1 Ves. Jr. 371, 391.
2 Brown, Adm. 77. note 5. I have to regret, that I have not been able to consult the originals of two works quoted in this opinion, which would probably have materially aided my inquiries by their learning and ability. I allude to Sir Leoline Jenkins’ works, and Prynne’s Animadversions on the 4th Institute. These works were not to my knowledge in New England at the time of delivering this opinion; and I have been always obliged to cite them at second hand.
See Wood, Inst. 494. It is apparent, that the late learned Mr. Justice Winchester adopted these claims in their full extent. I know not any man in the United States, who seems to have had more profound and accurate views of the admiralty jurisdiction, than this very able judge. Stevens v. The Sandwich [Case No. 13,409],
Cleirac, Jurisd. de la Marine, p. 191, etc.; Valin, Comm. 1. 112, 120. 127. etc.; Zouch, 87, 9l; Exton, 45, 46, 49; collection of sea laws in Malyne. Lex Merc. 47; 2 Brown, Adm. 30. The coincidence between the general authorities delegated in the admiral’s commission in Scotland, and still exercised there, and those in the commission of the admiral in England, is so striking as distinctly to show a common origin. The admiralty in Scotland has cognizance of “all complaints, contracts, offenses, pleas, exchanges, assecurations, debts, counts, charter parties, covenants, and all other writings concerning lading and unlading of ships, freights, hires, money lent upon casualties and
In the charter of Massachusetts, in 1692, there is an express reservation of the exclusive right in the crown to establish admiralty courts, by virtue of commissions issued for this purpose. See, also, Colon. Acts 1668, 1672; Mass. Col. & Pror. Laws (Ed. 1814) p. 716.
It is presumed that the commissions were usually in the same form. One of the latest is to the governor of the royal province of New Hampshire in 6 Geo. IH. Stoke’s Hist, of Colonies contains (chapter 4, p. 166) a like admiralty commission in the same words. He says this was the usual form. It authorizes the govern- or “to take cognizance of, and proceed in, all causes civil and maritime, and in complaints, contracts, offences or suspected offences, crimes, pleas, debts, exchanges, accounts, charter parties, agreements, suits, trespasses, inquiries, ex-tortions, and demands, and business civil and maritime whatsoever, commenced or to be commenced between merchants, or between owners and proprietors of ships and other vessels, and merchants or others whomsoever with such owners and proprietors of ships and all other vessels whatsoever employed or used within the maritime jurisdiction of our vice admiralty of our said province. &c. or between any other persons whomsoever had, made, begun or contracted, for any matter, thing, cause or business whatsoever done, or to be done, within our maritime jurisdiction aforesaid, &c. &c.; and moreover in all and singular complaints, contracts, agreements, causes and businesses, civil and maritime, to be performed beyond the sea or contracted there, however arising or happening.” with many other general powers. And it declares the jurisdiction-.' to extend “throughout all aud every the seashores, public streams, ports, fresh waters, rivers, creeks and arms, as well of the sea, as of the rivers and coasts whatsoever of our said province,” &c. In point of fact the vice admiralty court of Massachusetts, before the Revolution, exercised a jurisdiction far more extensive, than that of the admiralty in England. See, also,. The Little Joe, Stew. Vice Adm. 394.
Roccus de Ass., note 80. declares: “These subjects of insurance, and disputes relative to ships, are to be decided according to maritime law; and the usages and custom of the sea are to be respected. The proceedings are to be according to the forms of maritime courts, &c.” Targa, in his Reflections (chapter 1). defines maritime contracts to be those, which, according to mercantile usage, respect or concern maritime negotiations and their incidents. It has been already stated that the jurisdiction of the admiralty in England and in Scotland were originally the same. And the admiralty in Scotland still continues to exercise jurisdiction over all maritime contracts, and particularly over policies of insurance, upon the footing of its ancient and inherent rights.' In Dow’s Reports of decisions in the house of lords in 1S13 and 1814, are no less than eight insurance causes, which were originally brought in the admiralty in Scotland, and finally decided on appeals bv the house of lords; Lords Ellenborough, Eldon and Erskine, assisting in the decisions: Watt v. Morris, 1 Dow, 32; Tennant v. Henderson, Id. 324; Watson v. Clark. Id. 336; Brown v. Smith, Id. 349; Sibbald v. Hill, 2 Dow, 263; Hall v. Brown, 367; Smith v. Macneil, Id. 538; Smith v. Robertson, Id. 474.
There can be no possible question, that the courts of common law have acquired a concurrent jurisdiction, though, upon the principles of the ancient common law, it is not easy to trace a legitimate origin to it.