Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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constitution and laws of the said United States, and to have and to
hold the said office, with all the powers, privileges, and emoluments
to the same of right appertaining, unto him, the said Lewis B.
Woodruff, during his good behavior.

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" In tesfimony whereof, I have caused these letters to be made

patent, and the seal of the United States to be hereunto

affixed. Given under my hand, at the City of Washington,

[l. 8.] the twenty-second day of December, in the year of our

Lord one thousand eight hundred and sixty-nine, and of

the Independence of the United States of America, the

ninety-fourth. tt o ^

^ " U. S. Grant.

" By the President,

" Hamilton Fish, Secretary of Stated

The circuit judge must reside in his circuit.®

§ 327. TheCJourt always the Same Court. — There is no separate
commission of the judge nor constitution of the court in admiralty
cases. When sitting to try an admiralty cause, the court is an ad-
miralty court, and when sitting to try a criminal, it is a criminal
court; and the court passes from the trial of an admimlty cause to
a common law cause, and vice veraa^ and becomes alternately, at the
same sitting, according to the nature of the cause on trial, an ad-
miralty court, an equity court, and a common law court of civil or
criminal jurisdiction, without any change of style, form, officers, or
records, except that each case is conducted according to the estab-
lished course of proceedings appropriate to its class. It is thus
always the same court, whether acting in one class of causes or
another. It is only as admiralty courts that they are here to be

Th^ judges are not allowed to exercise the profession or employ-
ment of counsel or attorney, nor to be engaged in the piactice of
the law .10

§ 328. Power to isstfe Necessary Writs.— All these courts have
power to issue all writs which may be necessary for the exercise of
their respective jurisdictions, and agreeable to the principles and
usages of law. They have also power to adopt seals, to impose and
administer all necessary oaths or affirmations, and to punish, by fine
or imprisonment, at the discretion of the court, all contempts of au-
thority in any cause or hearing before the court. Also, to make
and establish all necessary rules for the orderly conduct of business

•Key. Stat §607. 1452; Jennings r. Carson, 8 U. S. (4

>o The Jonquille, 19 U. S. (6 Wheat.) 1 Cranch), 24; Rev. Stat. § 713.

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in said courts, provided such rules are not repugnant to the laws of
the United States."

§329. Admiralty Jorisdlctloii, Equitable and Legal.— In the

exercise of its appropriate jurisdiction, the Court of Admiralty ex-
ercises equitable, as well as legal jurisdiction. If the subject be of
a maritime nature, and so within the power of the court, and be of
such a nature that the relief must be in the nature of equitable re-
lief, the court is entirely competent to give the equitable, as well as
the legal relief. It has the capacity of a court of law, and, in cer-
tain respects, the capacity of a court of equity. In its decisions up-
on the ultimate rights of parties, from considerations of conscience,
justice and humanity, it sometimes mitigates the severity of con-
tracts, and moderates exorbitant demands.^ The nature of mari-
time controversies, obviously, however, necessarily excludes from
courts of admiralty, large classes of cases, such as specific perform-
ance, trusts, etc., which are of frequent occurrence in courts of
equity.^ And the Court of Admiralty is not a court of general
equity, nor has it the characteristic powers of a court of equity,
but it is bound, by its nature and constitution, to determine the
cases submitted to its cognizance, upon equitable principles, and ac-
cording to the rules of natural justice. It cannot, in a technical
sense, be called a court of equity. It is rather a court of ''^ justice,^' ^*

§ 330. Instance, Criminal and Prize Coorts. — These courts, in
the exercise of their admiralty jurisdiction, have three great classes
of functions.

They aie Instance Courts^ in which are heard and determined civil
suits of a maritime character between party and party.

" Rev. Stat. § 717, et 8pq.; The U. S.
V, Hudson, 11 U. S. (7 Cranch), 82.

"Edw. Ad. Jur. 31, 138, 173; po«<,
§358; The OrleaDS v, Pha3bus, 36 U. S.
(11 Pet.) 175; Macomber v. Thompson,
1 Sum. 388; Brown t. Lull, 2 id. 443;
Drummond's Administrators v. Ma-
f?inider & Co.*8 Tinistees, 13 U. S. (9
Cranch), 125; The Hiram, 14 U. S. (1
Wheat) 440; The Fortitudo, 2 Dod. 58;
The Minerva, 1 Hag. Ad. R. 357; The
Cognac, 2 id. 377; Ellison v. The Bel-
lona, Bee, 100; The Virgin, 33 U. S.

(8 Pet) 550.

"Davis V. Child, Daveis, 71; 8. C. 8
N. Y. Leg. Obs. 147; Kynock v. The
Ives, Newb. 205; The Larch, 2 Curt C.
C. 427; Kellura v. Emerson, id. 79; The
Perseverance, Blatchf. A H. 385.

I* The Harriett, 1 W. Rob. 192; The
Jacob, 4 Rob. 250; The Nelson, 6 Rob.
227; The Saracen, 6 Moore, 74; The
Juliana, 2 Dod. 521; Coote's Prao. 8,
9; The Trident, 1 W. Rob. 35; Andrews
V. The Essex Fire & Marine Ins. Co., 3
Mason, 10.

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They are Criminal Courts^ in which are tried and punished those
maritime offences of which the acts of Congress have given them

They are Prize Gourt%^ in which are adjudicated all the various
admii-alty and maritime questions relating to maritime prizes of war.

As instance courts and prize courts, all causes are heard and de-
termined by the court alone, without the aid of a juiy. As crimi-
nal courts, they administer justice in admiralty cases, with the aid
of a grand juiy and a petit jury, like the common-law courts of
criminal jurisdiction.

§ 331. Clerks. — Each of these courts has power to appoint its
clerk. It is the court, not the judge or judges, that has the power
of appointment, and the appointment is, in the first instance, prop-
erly made by the judge or judges, by a written certificate of appoint^
ment. The appointment should always be formally made by an or-
der of the court, duly entered in the minutes. Each clerk, before
entering upon the execution of his office, must take the following
(»ath :

" I, A B, being appointed clerk of , do solemnly

swear, (or affirm,) that I will truly and faithfully enter and record
all theordei-s, decrees, judgments and proceedings of the said court ;
and that I will faithfully and impartially discharge and perform all
the duties of my said office, according to the best of my ability and
underetanding ; so help me God.'*

The clerk must also give a bond with sufficient sureties, (to be
approved by the court,) to the United States, in a sum to be fixed
by the Court, faithfully to discharge the duties of his office, and
seasonably to record the decrees, judgments, and determinations of
the court.^®

§ 332. The Same. — It is the duty of the clerk in admiralty cases,
to perform all those services which are usually performed by clerks
of courts, — to receive and mark its files, — to keep and affix its seal,
— to issue its processes, — to keep its minutes of proceedings and its
records, — ^and to administer oaths, take bail, etc., in coui-t, — being
in all these matters, the servant of the court whose power he aids.
He has authority by statute, to take bail and depositions in certain
cases, and to perform various duties in case of the inability of the

i«Rev. Stat. §§704,705.

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judge, as has been before stated ; and he keeps the account of the
monejrs deposited in court. He is bound, at every stated session of
the court, to present an account to the court, of all the moneys re-
maining therein subject to its order, stating particularly on account
of what causes said moneys are deposited, which account, with the
vouchers, must be filed.^® He may be attached for contempt if he
refuse or neglect to obey the ordei*s of the court for depositing such
moneys, and he may have an attachment against a party for the non-
payment of his fees.^^

§ 333. The Admiralty Register.— In the Southern and Eastern
Districts of New York, the clerk keeps, as one of the books of the
court, an Admiralty Register, in which, as soon as the libel is filed,
he enters the title of each admimlty cause, a brief note of the cause
of action, the names of the proctors, and chronological minutes of
the steps in the cause, to its final determination.

Such a register so greatly promotes the convenience of the court,
the clerk, and the parties, and is so useful in preserving the due
order of proceedings, and making them accessible to all who may be
entitled to know them, that it is almost a matter of necessity in
couiis having much admiralty business, and is so useful in all cases,
that it might well be required, by a general rule of the Supreme
Court, to be kept in all the courts of the United States.

§ 334. Proctors and Advocates. — In all the courts of the United
States, the parties may plead and manage their own causes person-
ally, or by tlie aid of such attorneys or counsel as by the rules of
the courts respectively are permitted to manage and conduct causes
therein. Attorneys in admiralty courts are called proctors, — from
the Latin, procurator^ — French, procureur^ — rafter the usage of the
civil law ; and counsellors are called advocates. The modes and
conditions of admission as proctoi-s and advocates are different in
different districts, the whole matter being entirely subject to the
rules of the respective courts.

It is the peculiar duty of the proctor to conduct the proceedings
out of court, — process, pleadings, entries, stipulations, admissions,
consents, settlements, and motions. He is the nominal representa-

^«Rev. Stat §708; and see Rev. Stat. I "Caldwellr. Jackson, 11 U. S. (7
§ 5504. I Cranch), 276.

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tive of the part}', and his name should appear in all the papers ; and
all orders should be stated to have been made on his motion.

It is the peculiar duty of the advocate to represent the party in
court, — to make motions, examine witnesses, address the court, and
advocate the cause.^®

§ 835. The Same. —Proctors are more properly appointed by the
party in writing ; but there is no legal necessity for a written proxy,
— a verbal appointment is sufficient ; and till denied, the court al-
ways presumes the proctor who appears has proper authority. The
court may always call upon him to state for whom he is authorized
to appear.

If the party have a proctor and advocate, he cannot conduct the
cause himself ; nor can he call to his assistance one who is not a
proctor or advocate of the court.

Both proctor and advocate, while the cause is pending, have full
power over it. After final decree, they have no power, except to
sue out execution and superintend and direct its enforcement. They
have no power to discharge the decree, except on its performance,
unless authorized by the party .^®

§ 336. The Same. — The power of the proctor and advocate is re-
vocable by the party without cause assigned. It should be done by
leave of the court, on notice to the proctor. And, on the applica-
tion of the party, the general powers of the proctor or advocate
may be restricted.

Proctors and advocates are officers of the law, held to the strictest
integiity, and the best faith and honor to their clients and the court.
They are accountable to the court for their professional conduct, and
are subject to be deprived of their privileges and office, and other-
wise punished, by attachment, fine, or imprisonment by the court,
for violation of professional duty, or for such moml delinquency as
would bring into disrepute the administration of justice.

§ 337. The District Attorney. — ^The United States are always
represented in all cases in court, civil as well as criminal, by the

" Rev. Stat §747; Betts' Prac. 9, 10,

»Rev. Stat. § 747; Betts' Prac. 11, 13,
14; The Wilhelmine, 1 W. Rob. 335;
The Frederick, 1 Hag. Ad. R. 223; Mynn

V. Robinson, 2 Hag. Ecc. 105; Prentice
tJ. Prentice, 3 PhiU. 31 1 ; Whish v. Hesse,
3 Hagg. Ecc. 687; In the Goods of Lady
H. Finch, id. 255; The Harriet, 01c.

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Distiict Attorney of the United States for the district in which the
suit is pending, except in the Supreme Court. In that court, the
Attorney General and Solicitor General of the United States repre-
sents the Government.'^

§ 338. United States Commissioners and Notaries. — By the U.

S. Revised Statutes § 627, the Circuit Courts of the United States
are authorized, whenever the extent of their districts renders it
necessary, to appoint as commissioners of the Circuit Courts such
and so many disci^eet persons within the district as may be necessaiy,
to execute the powers confeired on commissioners. By § 945 they
are also authorized to take affidavits and bail in civil causes in the
District Courts, to have the like force and effect as if taken before
a judge of the court, and by § 813 are also authorized to take depo-
sitions. By § 727 they are clothed with all the powers that a judge
or justice of the peace may exercise. Under § 4546 they have power,
if a seaman's wages are not paid within ten days after they ought
to be paid, to summon the master of the vessel to show cause why
process should not issue against the vessel. They are also empow-
ered to arrest and imprison or bail offendefs for any crime or offence
against the United States, under and by virtue of §§ 1014 and 4546
and to require and to take recognizances of witnesses.

By § 1778, it is provided, that in all cases, in which, under the
laws of the United States, oaths, or acknowledgments may now be
taken or made before any justice or justices of the peace of any state
or territory, or the District of Columbia, they may be hereafter also
taken or made by or before any notary public, duly appointed in any
state, district or territory, and, when certified under the hand and
official seal of such notary, or any commissioner, shall have the same
force and effect as if taken or made by or before such justice of the

Notaries public are also authorized to take depositions and do
such other acts in relation to evidence to be used in the courts of
the United States, in the same manner, and with the same effect, as



§ 339. The Same.— By the rules of the Supreme Court, they are
also authorized to take bonds or stipulations in admiralty cases, and

»Rev. Stat §§359, T71.
« Rev. Stat, § 865.

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in cases where the court may deem it expedient or necessary, for
the purposes of justice, the court may refer any mattei*s arising in
the progress of the suit, to one or more commissioners, to hear the
parties and make report therein, with all the power of MasteiB in
Chancery, in i-eferences before them, including the power to admin-
ister oaths and examine parties and witnesses.^ This rule unques-
tionably authorizes the court to refer matters to any person who,
by the order of reference, may be appointed a commissioner for
that matter alone ; but it is also the practice, under it, to refer mat-
ters "to a commissioner," leaving the party to select such one of
the regularly appointed United States Commissioners, as he may
prefer to employ.

§ 340. The Harshail. — The marshal of the district is the execu-
tive oflBcer of the Supreme Court, the Circuit Court of Appeals, the
Circuit Coui-ts, and the District Courts, in the district for which he
is appointed. He is appointed by the President, by and with the
advice and consent of the Senate, for four years, removable at the
pleasure of the President. His commission is in the following form :

" President of the United States of America,
" To all who shall see these presents, greeting :

"Know ye. That, reposing special trust and confidence in the
integrity, ability, and diligence of Francis C. Barlow, I have nomi-
nated, and by and with the advice and consent of the Senate, do
appoint him Marshal of the United States, in and for the Southern
District of New York, and do authorize and empower him to exe-
cute and fulfil the duties of that office according to law. And to
have and to hold the said office, with all the powers, privileges, and
emoluments, to the same of right appertaining unto him, the said
Francis C. Barlow, for the term of four years from the day of the
date hereof, subject to the conditions prescribed by law.

" In testimony whereof, I have caused these letters to be made
patent, and the seal of the United States to be hereunto
affixed. Given under my hand, at the City of Washing-
[l. 8.] ton, the fifteenth day of April, in the year of our Lord
one thousand eight hundred and sixty-nine, and of the In-
dependence of the United States of America, the ninety-
third. TT r. ^

"U. S. Grant.
" By the President,

" Hamilton Fish, Secretary of State''

« Ad. Rule 5, 35, 44; Dist. Rule, 51 to 55.

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Before he enters on the duties of his office, he must become bound
for the faithful performance of the same, by himself and by his dep-
uties, before the judge of the District Court of the United States,
jointly and severally, with two good and sufficient sureties, inhabi-
tants and freeholders of the district, to be approved by the district
judge, in the sum of $20,000, and must take, before said judge, as
must also his deputies, before they enter on the duties of their ap-
pointment, the following oath of office :

" I, A. B., do solemnly swear, (or affirm,) that T will faithfully
execute all lawful precepts directed to the marshal of the district
of under the authority of the United States, and true re-

turns make, and in all things well and truly, and without malice or
partiality, perform the duties of the office of marshal, (or marshal's
deputy, as the case may be,) of the district of during my

continuance in said office, and take only my lawful fees. So help
me God." 28

§ 341. The Same. — It is his duty to execute, throughout the
district, all lawful precepts directed to him, and issued under the
authority of the United States, and he has the same powers in exe-
cuting the laws of the United States, as sherififs and their deputies
in the several states have, by law, in executing the laws of the re-
spective states. He has power to command all necessary assistance
in the execution of his duty, and to appoint, as there shall be occa-
sion, one or more deputies, who shall be removable from office by
the judge of the District Court, or the Circuit Court sitting within
the district, at the pleasure of either.^

§ 342. The Same. — If the marshal or his deputy be a party to,
or interested in, the suit or proceeding, the writs and precepts there-
in shall be directed to such disinterested pei*son as the court, or any
justice or judge thereof, may appoint, and the person so appointed
is authorized to execute and return the same.

In case of the death of the mai-shal, his deputies continue in
office, unless otherwise specially removed, and execute the office in
the name of the deceased, until another marshal be appointed and

The defaults or misfeasances in office of the deputies, as well after

« Rev. Stat §§ 782, 783; Conk. Treat I •* Ad. Rule 41; Rev. Stat §§ 780, 787,
2d edit 116. 1 788.

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as before the death of the mai^hal, are breaches of the condition of
the marshal's bond, and the deputies are responsible to the execu-
tors or administi-atbrs of the mftrshal, in the same manner as to him
in his life-time.

§ 343. The Same. — When the marshal or his deputy is removed
from office, or his term has expired, he has power to execute aU such
precepts as are in his hands at the time ; and the marshal is answer-
able for the delivery to his successor of all prisoners in his custody.
The removal does not take effect till notice of the appointment of
the successor.^

§ 344. State Jails.— The United States, at the organization of
the government, had no prisons, and by a joint resolution, passed
September 23, 1789, recommended the legislatures of the states to
pass laws, making it the duty of the keepers of the state jails, to
receive and keep the prisoners committed under the authority of the
United States, the United States paying at the rate of fifty cents a
month for each prisoner during the time he should be confined, and
also supporting prisoners committed for offences. If any state did
not pass such law, or should retract it after passing it, the marshal
is authorized, under the direction of the judge of the district, to
have and fit up a convenient place for a tempoi-ary jail.^

After a prisoner is committed to the state jail, he is no longer in
the custody of the marshal, nor controllable by him; and the marshal
is not liable for the escape of a debtor committed to a state jail.*"^

§ 345. The Marshal's Neglect and Fees. — If the marshal or his
deputies neglect or violate their duty, or disobey the order of the
court, they may be attached as for a contempt.®

»Rev. Stat 789, 790; vide Wortman
V. Ck>nyiigham, 1 Pet C. C. R. 241 ; Rog-
ers V. The Marshal, 68 U. S. (1 Wallace),

« Conk. Treat 2d edit 118, 124; Reso.
Sept 23, 1789; Reso. March 8, 1791;
Reso. March 3, 1821; Rev. Stat §§ 5537,

^ These provisions, by which all pris-
oners of the United States are trans-
ferred to the state sheriff of the county,
have saVed the expense of providing

jails of the United States; but it may
well be questioned whether the incon-
veniences, risks, and actual evils of
thus placing the execution of the U.
S. laws, and the protection of the rights
of citizens of otlier states, under the
control of state officers, do not more
than counterbalance the expense. Ran-
dolph V. Donaldson, 13 U. S. (9 Cranch),

» The U. S. «. The Lawrence, 7 N. Y.
Leg. Obs. 174.

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The marshal may also, by order of the court, compel the payment
of his fees, by summary process of attachment against the party lia-
ble to pay them.*^

» Caldwell v, Jackson, 11 U. S. (7 Cranoh), 276; Anonymooa, 2 Gall. 101.

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Thb Practicb op the Ambrican Admiralty Courts, histori-

§ 346. Admiralty Practice Simplified. — It has been remarked,
that the grant of the jurisdiction in all admiralty and maritime cases
was made total, because these cases are in some sort international,
and at least are of such character as to render it eminently proper
that they should be subject to the legislation and control of the
general government, instead of being subject to the fluctuating and
various regulations of the state governments, which fi*om the neces-
3ity of the case, could have no common arbiter, and could not fail
to be found disagreeing from, or conflicting with, that great system
of maritime law which the interests of commerce require to be main-
tained in its unity and integrity. For an analogous reason, the ad-
miralty courts of the United States could not fail to be more useful
and more acceptable to the people, as their practice should be sim-
plified and made the same in every part of the United States.^

§ 347. It does not Conform to State Practice. — The practice in
the courts of the United States, sitting as courts of common law,
was made to conform to that of the Supreme Courts of the respec-
tive states. As all the states had courts of common law, to which
the citizen usually resorted, and with whose mode of proceeding he
was acquainted, it was not desirable that the general government
should, in that matter, introduce an inconvenient novelty, or estab-
lish a uniformity of pi*actice which could hardly fail to be burden-
some. On the other hand, the admiralty and maritime jurisdiction
was, by the constitution, entirely transferred from the states to the
general government, and made a purely fedei-al jurisdiction, of lim-
ited extent and peculiar character, and it was equally desirable that

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 21 of 80)