Erastus Cornelius Benedict.

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ple of different nations, speaking different languages, and familiar
with different codes and usages. Most especially is this true in our
country, where, from the peculiar form of our institutions, there are
two governments, with separate and independent judicial establish-
ments eKtending over the same territory and the same individuals ;
that territory acquired from other nations and originally subject to
their laws, and those individuals consisting, in large part, of ti»e cit-
izens and subjects of the other great commercial nations of the world,
domiciled among us.

§ 2. Maritime Affairs. — The character and pui*suits of seafaring
life, and of maritime commerce, have in all countries been consid-
ered as of a peculiar nature. Their agents and instruments, animate
and inanimate^ have rights, privileges, and liabilities which do not
belong to those of the land, and there are rules of conduct and of
intercourse, as well as courts of justice, codes of law, and modes of
administering them, which are especially devoted to the relations of
maritime affairs. The ships of a nation, wherever they may be, are
considered as a part of its territory; hence the encouragement of
navigation and maritime commerce, and the proper regulation and

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employment of shi^is, have always been favorite objects of the laws
of all commercial nations.^

§ 3. The Admiral. — In the earlier history of nations, in which
absolute rule and strong executive powers have exercised most of
the functions of government, the affairs of the sea, so far as the na-
tion was concerned, and of the navigable waters of the nation, have
been usually administered by a naval officer of the highest dignity
and station, holding his authority directly from the sovereign power,
subordinate to the monarch alone, and clothed with many of the
prerogatives of royalty. Almost all nations, possessed of any mari-
time commerce, have thus had an officer, known sometimes by one
name and sometimes by another in a greater or less degree similar
to the English word admiral. Originally, admiralty jurisdiction
was but another phrase for the power of the admiral. The mild and
equitable system of admiralty law derives its descent, through a
long line of modifications and melioiutions, from the absolute and
irresponsible rule of naval command, as the peaceful law of real es-
tate, and the common law generally, have descended from the iron
despotism of military dominion carried to its perfection in the feu-
dal system.^

§^4. Admiralty Law. — The declaration of the grekt Roman ora-
tor, cedant amia togce^ uttered when Rome was the military mistress
of the world, was then true only in the forum ; the lapse of eighteen
centuries has made it the law of society and the truth of history
wherever civilization has shed its light on organized government.
The administration of the law of the sea has passed into the hands
of properly constituted courts of justice, while the admiral has been
left in possession of the power and prerogatives of naval command
alone, and has become judicially subject to the courts, which exer-
cise, with less show, more quietly and usefully, the functions which
he considered his most homely attributes. The system of law which
is thus administered in maritime transactions, retains the name of
admiralty law, after the name and power of the admiral have ceased
to be known in its execution. As maritime commerce came to be

1 Zouch's Jurisdiction of the Admi-
ralty, Ass. 1; id. Ass. 9; 2 Bro. Civ. &,
Ad. Law, cliap. 2; 3 Keut's Com. 1-21;
Edw. Ad. Jur. 33; Abbott on Ship. 9S.

a Hair 8 Ad. Intro. 7, 8; Godolphin*s
View of the Admiral Jurisdiction,
chaps. 1, 2; Zouch, Ass. 2, 3.

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extended, and inteiiiational commerce and intercourse became more
frequent, the sea was considered the common highway of nations,
whei-e, for the purposes of business, all nations must be equal in
right, and the common convenience, as well as the common right,
rendered necessary and ultimately established general rules, as the
Law of the Sea, to which all submitted as to a sort of maritime law
of nations, and the courts of each nation enforced it. This is now
called the general maritime law, and sometimes the general admi-
lalty law. It is always administered by courts of nations, belonging
to the family of nations.

[But it should be borne in mind that this genei*al maritime law
may be subject to change in different countries. And to use the lan-
guage of the Supreme Court of the United States " thus adopted
and thus qualified in each case, it becomes the maritime law of the
particular nation that adopts it." See the discussion of this subject
in the case of The Lottawana, 88 U. S. (21 Wall.) p. 572 to 578].

§ 5. The Civil Law. — The admiralty law is indebted for many of
its characteristics to the circumstances of the countries in which it
was fii-st administered. The countries that earliest reduced the law
of the sea to a system, and adopted codes of maritime regulations,
having been countries in which the Roman or civil law prevailed,
the principles of that gieat system of jurisprudence were incorpo-
rated with, and gave character to, the maritime law; and so much
were pure reason, abstract right, and practical justice mingled in
that system, and so important was it that the general maritime law
should be uniform and universal, that, in England, where the com-
mon law was the law of the land, the civil law was held to be the
law of the admiralty, and the coui-se of proceedings in admiralty
closely resembled the civil law practice.^

6. Jealousy of Common Law Courts in England. —A court
thus proceeding according to the course of the civil law, and with-
out a jury, in England, was looked upon with jealousy by the judges
of the courts of common law, who considered themselves the proper
judicial guardians of English subjects. They professed to look
upon the admiralty as an intruder, administering a foreign code,
and, under a pretence of justice, seeking to steal away the hearts of
the people from the trial by jury, and the sterner proceedings of the

«2 Bro. av. and Ad. Law, 348.

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common law ; and a concerted and vigorous effort was made to de-
prive the Court of Admiralty of a large portion of the jurisdiction
which it exercised ; and the jurisdiction of that court was for a long
time a vexed question. The bench and the bar, on both sides, were
characterized by great learning and talent, and the contest was man-
aged with much ability. It is not easy, now, to see how a candid
mind could fail to yield to the argument of the admiralty judges.
The numerical strength, however, of the party of the common law,
was vastly superior to the other, and was led b}*^ Sir Edward Coke,
then Chief Justice of the King's Bench, as overbearing as he was
learned ; and as that court was superior to the Court of Admiralty,
and had the power to control its proceedings by the writ of prohibi-
tion, it is easy to see that what the common law lacked in right, was
more than made up in might, and the result could not long be doubt-
ful. The jurisdiction of the admiralty was judicially contracted to
the narrowest limits in that country, and, with some fluctuation,
has remained so till recent statutes have again extended it in a most
beneficial manner.*

§ 7. Its Inflaence Here. — The contest between the two jurisdic-
tions in England, and the triumph of the common law, came over
to us in the English books, and did much to create in the minds of
American lawyers, before and even since the revolution, a prepos-
session in favor of the narrower jurisdiction of the English Admi-
ralt}', and occasionally, lawyei-s and judges of the most distinguished
ability, have sought to transfer the English argument and authority
to our country, and have insisted that the American Admiralty has
not the liberal and beneficial jurisdiction which the English Admi-
ralty anciently possessed, and which the continental courts still en-
joy, but is confined to the exercise of those powers which necessity
had compelled the King's Bench, in the days of its most arrogant
triumph, to tolerate in England. This has not failed to keep un-
settled the law of admiralty jurisdiction in this country ; althous^h,
in the clearest language, the constitution of the United States gives
to the federal judiciary, cognizance of " all cases of admiralty and
maritime jurisdiction," and the act of Congress, in the same language,
bestowed upon the district courts original jurisdiction of all civil
cases of admiralty and maritime jurisdiction.

* Zoucli, passim ; Godolpliinf poLssim ;
Prynne*8 Animadversions, passim ;
Waring t>. Clarke, 46 U. S. (5 How.)

453; The Jerusalem, 2 Gal. 348; Ed-
wards' Ad. Juris. 17; 3 and 4 Vict. c.
65; 9 and 10 Vict. c. 99; 24 Vict. c. la

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[The first part of this section must be refen*ed to the time of the
issuing of the earlier editions of this work. The broad jurisdiction
of the Admiralty advocated in them has become settled and is no
longer questioned.]

§ 8. The QQestion of Jurisdiction. — Among the distinguished
jurists who have insisted that the grant in the constitution embraces
only those few cases of admiralt}' and maritime jurisdiction which
were admitted by the English common lawyers, at the time of our
Revolution, to be within the jurisdiction of the English Admiralty,
is Chancellor Kent, who, after the elaborate investigation which the
subject had received in the courts of the United States, still says,
** the argument for the extension of the civil jurisdiction of the ad-
miralty beyond the limits known and established in the English law,
at the time of the formation of the constitution, is not free from
great difficulty." ^ And it is not to be denied, that decisions, argu-
ments, and judicial dicta, abound in our reports, on both sides of the
general question and of many of its subordinate points, which have
served to keep the whole question open, so far as the decisions of
the highest tribunal are concerned.^ But few cases, comparatively,
have involved a sufficient amount to give the Supreme Couit juris-

»1 Kent's Cora. 371, 377; Ramsay d.
Allegre, 25 U. S. (12 WheatoD) 614 ; Bains
V. The James and Catherine^ Baldwin's
Rep. 544; Waring c. Clarke, 46 U. S.
(5 Howard), 441; New Jersey Steam
Nav. Co. V. Merchants' Bank, 47 U. S.
(6 Howard), 385; Const. Art. 3, § 2 ; Jud.
Act of 1789, § 9; Rev. Stat § 563.

* Since the first edition of this work,
the jurisdiction of the American Ad-
miralty has been investigated in the
Supreme Court of the United States, in
the following cases: —

The Genesee Chief v, Fitzhugh,
53 U. S. (12 How.) 443; Jackson v.
The Magnolia, 61 U. S. (20 How.) 296;
The People's Ferry Co. r. Beers, id. 393;
Nelson v, Leland, 63 U. S. (22 How.)
48; Roach v. Chapman, id. 129; Phila.
Wil. etc. R. R. Co. v, Phila. and Havre
de Grace Steam Tugboat Co., 64 U. S. (23
How.) 209; Morewood v. Enequist, id.
491 ; The St. Lawrence, 66 U. S. (1 Black)

522; The Commerce, id. 574; The Po-
tomac, 67 U. S. (2 Black), 581; The Ply-
mouth, 70 U. S. (3 Wall.) 20; The
Moses Taylor, 71 U.S. (4 Wall.) 411;
The Hine u. Trevor, id. 555; The Eddy,
72 U. S. (5 Wall.) 481; The Rock Island
Bridge, 73 U. S. (6 Wall.) 213; The Bel-
fast, 74 U. S. (7 Wall.) 624; The Eagle,
75 U. S. (8 Wall.) 15; The Daniel Ball,
77 U. S. (10 Wall.) 557; Ins. Co. v. Dun-
ham, 78 U. S. (11 Wall.) 1; The Mon-
teUo, id. 411, and 87 U. S. (20 Wall.) 430;
Norwich Co. v. Wright, 80 U. S. (1:5
Wall.) 104; Atkins v. The Fibre Dis.
Co., 85 U. S. (18 Wall.) 299; Schooii-
maker v, Gilmore, 102 U. S. 118; Ex
parte Gordon, 104 id. 515; Ex parte
Boyer, 109 id. 629; The Belgenland,
114 id. 355; Ex parte Phcenlx Co., 118
id. 610; The Harrisburg, 119 id. 199;
Butler V, B. A S. S. S. Co., 130 id. 527;
The Eclipse, 135 id. 599; The J. E. Rum-
beU, 148 id. 1.

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diction on appeal ; and in the eases which have been before that
court, although it has been clearly and repeatedly, indeed uniformly,
decided that the English rule of jurisdiction does not prevail here,
still many cases seem to have been decided, even in that court, on
purely English authority. It can hardly be doubted that, at some
future time, when the same questions shall be again presented in a
different form, and discussed with a wider range, rules will be es-
tablished entirely consistent with the early elementary cases, and
with the fundamental principles of maritime law."

§ 9. The Same. — Till that is done, however, the whole question
is, in many minds, involved in so much uncertainty, that any part
of it, even what is now considered as settled, may come up again
for review and settlement. This uncertainty is in part to be attrib-
uted to the fact that a portion of the more ancient evidence of the
admiralty law is not easily accessible. The commendable caution
of the membera of the Supreme Court in confining their written
opinions to the points necessary to be decided, and the impractica-
bility of giving, in the reports, the arguments of counsel at length,
have deprived the profession of the benefit of the great learning and
research, as well as of the broad and generous commentaries, of the
distinguished lawyers who have discussed this subject before the
courts. The interests of the community will therefore be promoted
by bringing together, in convenient form, documents connected with
the subject, which either have not been before published, or can only
be found, in an authentic form, in books which are procured with
some difficulty, and by accompanying them with such suggestions,
principles, and authorities, as a somewhat extended and various
practice in admiralty cases and a careful examination of the subject
have shown to be important. In doing this, no apology will be
considered necessary for giving to the whole the form of a brief his-
torical and elementary treatise upon the admiralty jurisdiction of
the United States, from which the simplest rudiments and the most
familiar commonplaces will not be excluded, and where, sometimes.

7 1 Kent's Com. 371, 377; Conk. Treat.
2 edit 137, 146; Thompson tj. TheCath-
erina, 1 Pet Ad. 104, 113; De Lovio t>.
Boit, 2 Gal. 398, 426, 429; Tlie Amiable
Nancy, 1 Paine, 111, 117; Waring c.
Clarke, 46 U. S. (6 How.) 473; Bullock

V. The Lamar, 1 West Law Journal,
444; Tunno ». The Betsina, 5 Am. Law
Reg. 406; New Jersey Steam Nav. Co.
V. Merchants' Bank, 47 U. S. (6 How.)
385 ; Cutler r. Rae, 48 U. S. (7 How.) 733,
Opinion of Judge Wayne.

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arguments and speculations will be mingled with decided cases, the
dicta of judges, and the opinions of elementarj- writers.

§ 10. Admiralty Law and Practice. — The admiralty and mari-
time Law consists of the principles and rules which regulate the
conduct, the business, and the property of the citizen in matters of
admiralty and maritime character.

It is not the object of this work to treat of the elements of that
system of law. They are to be found in the numerous elementary
works and books of decided cases to which reference will be made
in the following pages.

It is after the law of the case is ascertained that the question of
great practical importance arises, What is the remedy and where
and how can it be obtained? To this the answer is found in that
system of courts and officers, and of professional art and technical
forms and proceedings, by and according to which justice is admin-
istered. This is Practice, in that sense which distinguishes it from
L«aw, and it is in this sense that the practice of the American Ad-
miralty is the subject of this work. This embraces the jurisdiction
and organization of the admiralty courts, as well as their forms,
modes, and rules of procedure, and the rights, duties, and responsi-
bilities of their various functionaries.®

§ 11. Practice in Admiralty.— The Practice of admiralty courts,
in that narrower sense which embraces only the course of procedure
in courts, is established with more certainty and uniformity, but is
even less understood, than the jurisdiction of the courts and the
system of law which is administered in them. That course of pro-
cedure was intended to be uniform throughout the nation, and in
general harmony with the practice in the maritime courts of other
nations ; and Congress by an early statute prescribed such general
uniformity, and, in 1842, authorized the Supreme Court of the Uni-
ted States, still further to perfect a general and uniform course of
procedure in admiralty and maritime cases; and, in 1845, that court
adopted rules regulating the practice in civil causes.

There have been several American works on the admiralty prac-
tice, of great merit and usefulness to the few lawyers who have
hitheilo cultivated this field of professional activity, — Hall's Ad-

• FWe History of the Admiralty Prac- 1 son, Blatchford «fe H. 10; The Mary
tice in Tlie American Ins. Co. v. John- 1 Jane, id. 300.

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miralty Practice ; Dunlap's Admiralty Practice ; Betts' Admiralty
Practice ; and Conklin's Admiralty Practice. Had either of those
works been intended by their authors to meet what has long seemed
to me the greatest want in this department of law, this treatise,
probably, would not have been written. They are well known, and
valuable auxiliaries to the well-versed and experienced pmctiser in
the admiralty courts; but thase who are entering for the first time
upon this unknown region of inquiry, have too often complained of
the want of rudimental simplicity and clearness of instruction and
direction, which, in subjects of this sort, are as convenient, if not as
necessary, to ripe and cultivated men, as they are to children in the
elements of general education.

§ 12. Extension of the Jnrisdietion. — The whole subject was
invested with a new importance by the act of Congress extending
the admiralty jurisdiction to the great lakes — the inland seas of this
continent — and the rivei-s connecting them, which are already the
theatre of a maritime commerce far outvahiing that of all antiquity ;
and by the extension of our territory and settlements to Behring's
Straits, on the Pacific ocean, and to the Arctic ocean, thus adding
to our coasting trade immense voyages of six months' constant sail-
ing, and making us the nearest maritime neighbors of the oriental
world, and of most of the islands of the sea.^ If my labors shall
help to establish that uniformity of principle and decision which is
necessary to the system, and which alone can give to this branch of
the national judiciary its greatest usefulness, I shall enjoy the high-
est reward of professional industry.

[The importance of the subject has not diminished but increased
since the foregoing was written. The Act of Congress referred to,
which was passed in 1845 (5 Stat, at Large, p. 726), no longer stands
upon our statute book, but it is because the Supreme Court of the
United States has declared that, by virtue of the words of the con-
stitution, the admiralty jurisdiction extends not only to the great
lakes and the rivers connecting them, but to all public navigjible
watei-s of the United States, including even canals. See post^ §§ 221
and 246.]

The first question, which presents itself in this inquiry, is. What
court has jurisdiction of the controversy ?

» Act of February 28, 1845, 5 Stat, at
Large, 726; see R. S. 506 and 57t5; The
Genesee Chief, 53 U. S. (12 Howard),

443; Treaty with Russia, 15 Stat at
Large, 539.

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§ 18. Jurisdiction Generally. — Jurisdiction, as applied to coui-ts,
is the right to hear and determine judicially the subject-matter in
controversy between parties to a suit or legal proceeding. The ac-
tion of a court is either judicial or extra-judicial. If the law confers
the power to render a judgment or decree in a case, then the court
has jurisdiction, and its action is judicial. If the law does not con-
fer such power, then the action of the court therein is extra-judicial.
It has not jurisdiction.^

§ 14. Its Sonree. — The jurisdiction of courts is a branch of that
jurisdiction which is possessed by the nation as an independent
power. The jurisdiction of the nation within its own sphere is nec-
essarily exclusive and absolute. It is susceptible of no limitation
not conferred by itself ; any restriction upon it, deriving validity
from another source, would imply a diminution of its sovereignty
to the extent of the restriction, and an investment of that sovereignty,
to the same extent, in that power which would impose such restric-
tion. All exceptions, therefore, to the full and complete power of
a nation within its own territory, must be traced up to the consent
of the nation itself. They can flow from no other legitimate source.^

§ 15. Judicial Power of the United States. — The judicial power
of the United States is limited, and, of course, all the courts of the
United States are of limited jurisdiction, — ^limited by the grant of
judicial power in the constitution, and by the acts of Congress dis-
tributing that jurisdiction to the courts. The action of those courts
extends and must be confined to the cases, controversies, and parties
over which both the constitution and the laws have authorized them

1 The State of Khode Island v. The
State of Massachusetts, 37 U. S. (12
Pet) 718 ; DoPon. on Jurisdiction, 21.

* The Exchange v, McFaddon, 11 U.
S. (7 Cranch), 136.

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to act. As any proceeding is within or without the limits thus pre-
scribed, it is or is not judicial, valid, and efifectual. The constitu-
tion and the statute must both concur in conferring jurisdiction.
The judicial power of the government is derived from the constitu-
tion. The disposal and distribution of it belongs to Congress.
Many subjects of jurisdiction, which are clearly embraced in the con-
stitution, lie actually dormant, because Congress has never author-
ized their exercise by any of the courts.^ In like manner. Congress
has sometimes conferred powers which the constitution has not au-
thorized them to confer, and so far the act of Congress is void.

§ 16. Limitations of Judicial Power. — The judicial power may
be limited to plaeeSy to parties^ or to svhjects^ of a particular kind or

Place. — There are a variety of cases, offences, and controversies,
which are within the jurisdiction of certain courts, simply because
they happen or are committed in particular places. An offence may
be committed in a fort, arsenal or dock-yard of the United States,
or on the high seas : it is then, by reason of the place alone, subject
to the jurisdiction of the courts of the United States. In such cases,
jurisdiction depends on place alone.

Parties. — The judicial power of the United States extends to all
cases affecting ambassadors and other public ministers and consuls,
and to cases in which the United States, a state or an alien is a
party. In such cases, the jurisdiction depends solely upon the per-
son or party,

Subject-Matter. — In other cases jurisdiction is confined to subjects
of a particular character. Subject-matter is as various as the law
itself, embracing anything which properly comes within the sphere
of legislation,— crimes and punishments, natuml and social relations,
contracts, obligations, duties, rights and wrongs ; these are distrib-
uted among different tribunals, as the convenient administration of
justice may require. Hence there are civil courts and criminal
courts ; ecclesiastical, military, and testamentary aourts ; courts of
equity, of revenue, of international law, and courts of admiralty
and maritime jurisdiction. Such courts have jurisdiction of their

« The State of Rhode Island v. The
State of Massachusetts, 37 IT. S. (12
Pet. Rep.) 720 ; Voorhees u. The Bank
of the United States, .So U. S. (10 id.)

474 ; 1 Kent Com. 314 ; Turner x>. The
Bank of North America, 4 IT. S. (4 Dal.)
8; Mclntire t>. Wood, 11 U. S. (7 Cranch),
504; Smith v. Jackson, 1 Paine, 453.

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respective classes of cases, not by reason of the place where they

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 3 of 80)