Erastus Cornelius Benedict.

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arise, nor of the persons who may be parties to them, but by reason
of the subject-matter of the controversy.^

§ 17. Power and Duty of a Court — Whenever a court has ju-
risdiction of a controversy, whether it depend on place, party, or
subject-matter, it has the power, according to its own course of pro-
cedure, to administer justice between the parties, so far as that con-
troversy extends. If it be a court, and have jurisdiction, then, from
the very force of these terms, it has the power necessary to enable
it fully to adjudicate between the parties, and to enforce its decree.
If it have power over the principal matter, it has it also over the
incidents. If it have power to begin, it has power to finish, al-
though in its course it may be called upon to consider and decide
matters, which, as original causes of action, would not be within its

The duty of a court is commensurate with its power. It is as
much the duty of a court to exercise jurisdiction where it is confer-
red, as not to usurp it where it is not conferred.^

§ 18. Political and Jndieial View of Jnrisdiction. — A peculiar-
ity of our form of government compels us to look at the question
of jurisdiction of the courts of ,the United States, in two points of
view, — the political and the judicial. The political view of the ques-
tion involves the inquiry as to what is the extent of the constitu-
tional frrtiut to the Government of the United States, as a national
political sovereignty, separate and distinct from the state govern-
ments. This question arises before and independently of all courts
and their organization, and depends upon the constitution alone. It
was the question which was presented to the first Congress that met
under the constitution, when they came to provide for the judicial
wants of the new governoient by organizing courts to exercise the
judicial power conferred on that government. The judicial view in-
volves only the question, as to the extent of the legal jurisdiction
of the tribunals created by Congress, and upon which it bestowed

« DaPon. on Juris. 21-27; Bank of
the U. S. V. Deveaux, 9 U. S. (6 Cranch),

• Bank of the IT. S. v. Deveauz, 9 U.

8. (5 Cranch), 61; Peck v, Jenness, 4S ! Black,) 526.

U. S. (7 How.) 624; The American Ins.
Co. V. Johnson, Blatchford A H. 10;
The Epsilon, 6 Ben. 378.
«The St Lawrence, 66 U. S. (1

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the power to exercise certain judicial powers of the national gov-
ernment. The constitutional grant to the nation was fixed and in-
flexible the moment the constitution was adopted. On the other
hand, the organization and jurisdiction of the courts, and the distri-
bution of judicial powers, was left to Congress, and has been alwa3'8
subject to such changes as the wants or the wisdom of successive
periods might from year to year suggest. Thus, the question of the
American Admiralty jurisdiction is not a question, as in England,
between a court of admimlty and a court of common law (for there
is no court of admiralty proper in this country, nor is there any
common law of the United States), nor between trial by jury and
trial by a judge ; but it is only a question between the national
government and the state governments. If it had always been
considered in this light, the argument would have been found to
turn upon considerations widely different from many of those which
have been presented, and much of the difficulty which has been en-
countered on the subject would have vanished away. It is in this
point of view that I shall first consider it, inasmuch as upon this
everything else depends. After that will be considered the less
difficult question as to what may be the proper court. If any con-
troversy belongs to the judicial cognizance of the United States
Government, there can be no doubt or difficulty in ascertaining
which of its tribunals must decide. it.^

§ 19. Constitutional Grant of Jniisdietion. — The Constitution
of the United States grants to the Federal Government, judicial
power over . . . . " aZZ cases of admiralty and maritime jurisdio-
tion.^^ This is the whole of the grant of that branch of judicial
power ; and, brief and simple as it is, upon its true construction
depends the whole of the American Admiralty jurisdiction. It has
received five different consti-uctions. It has been contended —

1. That this constitutional grant embraces only those few cases
of which the English High Court of Admiralty was permitted to
take cognizance, at the time of the American Revolution.

2. That it embraces all cases of which the English Admiralty

7 Const. Art 8, §2; Wheaton v, Pe-
ters, 83 U. S. (8 Pet) 658; The State of
Massachusetts ads. The State of Rhode
Island, 87 U. S. (12 Pet) 781 ; The State
of Rhode Island v. The State of Massa-

chusetts, 87 U. S. (12 Pet) 721; The U.
S. V. Hudson, 11 U. S. (7 Cranch), 33;
The Genesee Chief, 53 U. S. (12 How-
ard), 459.

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anciently had jurisdiction, before the common law courts had by
prohibition prevented the exercise of most of its powei-s.

3. Tliat it embraces only the cases which were within the acknowl-
edged competency of the British colonial courts of vice-admiralty,
as they existed at the time of the Ameiican Revolution.

4. That it embraces only sucli cases as were within the actual
jurisdiction of the state courts of admiralty, which were in exist-
ence prior to the adoption of the Constitution of the United States
in 1788.

5. That the words admiralty and maritime^ relate simply to sub-
ject-matter, and were used in that general sense which embraces all
those cases relating to ships and shipping, and maritime commerce,
whicli arise under the municipal maritime regulations of each na-
tion, and those which arise under the general maritime law.®

In endeavoring to ascertain which of these constructions ought
to prevail, I shall, in the first place, recur to some general principles
and well known facts connected with the constitution, which, al-
though their relation to this subject may not at fii'st be apparent,
cannot fail to aid us in our inquiry.

« Waring ». Clark, 46 U. S. (5 How.) 473.

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Constitutional Construction,

§ 20. The Constitution. — The constitution is to be construed
according to the obvious import of its own phraseology. We can-
not, by evidence from other sources of the views or intentions of
individuals, in framing or adopting that instrument, divert the lan-
guage from its plain import. The intention of a people, or of a
popular body, can be known only from their corporate acts, or from
the results in which the whole, by the legal majority, concur.

The constitution was fully discussedj in the convention and be-
fore the people, and there is no evidence that the people or their
representatives did not underetand the constitution as it is written.
Emanating from the people, its powers are granted by them, and it
is the highest evidence of their will and intention. Most especially
is this so, since the constitution, in the whole and in its parts, was
the result of compromises. The views of no party were there em-
bodied, nor were the intentions of any set of men there carried out ;
but, after fall discussion and long deliberation, from patriotic mo-
tives, all yielded to it, and it was adopted as it was written, declar-
ing, " We, the people of the United States, do ordain and establish
this constitution." ^

§ 21. Its Grant of Judicial Power.— Its grants of judicial pow-
er, as well as of political sovereignty, are brief, sententious, and com-
prehensive. None of its words are to be disregarded, as without
meaning, nor to be considered as used to round a period, or to give
fullness and euphony to a sentence. Its phraseology was most care-
fully chosen, and all its words are significant, and introduced for the
purpose of conveying their appropriate shades of meaning.*^

1 Constitution, Preamble; Martin v, (5 How.) 441; Story on Const. 135; Liv-
Hunter's Lessee, 14 U. S. (1 Wheat.)
32H, 341; Gibbons v, Ogden, 22 U. S.
(9 Wheat) 187, 196; Mad. Pap. 1593-
1604; Aldridge v. Williams, 44 U. S.
(3 How.) 9; Waring v, Clarke, 46 U. S.


ingston v. Van Ingen, 9 Johns, 576.

2 The State of Rhode Island v. The
State of Massachusetts, 37 U. S. (12
Pet.) 723, and cases cited.

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§ 22. The Constitution not a Code. — It is a constitution, not
a code. It has indeed the force of law, but it is also still higher
than a law, in the usual sense of that word. It is an organic law,
made by the people, and not by the legislature. In a few brief sec-
tions it establishes the frame of government, and fixes the general
relations and inflexible guards of political society for a great nation,
for successive ages. It is necessarily brief in its language, but far
reaching and comprehensive in all its provisions. It was not intend-
ed to settle details, enumerate instances, or explain by illustration ;
but to establish principles, describe outlines, and fix the landmarks
of political power, in such general manner, as to provide for an un-
known future, and the circumstances of a territory, destined to be
indefinitely extended.*

§ 23. Grants not Bestrictions. — It is a constitution of grants,
and not of restrictions ; grants made under peculiar circumstances,
and for chai-acteristic purposes. In this it differs from other con-
stitutions. They are limitations or restrictions of that universal
sovereignty or governmental omnipotence, which belongs to an in-
dependent state, and which makes the state, however organized, the
irresponsible master of the life, liberty, property, and conduct of the
individual, except so far as the state has voluntarily limited its

§ 24. Constitutions of tlie States.— Of this latter class, were
the constitutions of the individual states, before the Federal Con-
stitution was formed. The American Revolution commenced in re-
bellions of separate colonies bounded on the great common highways
of national intercourse. For a common purpose, they consulted and
combined together and, in 1776, declared themselves " free and inde-
pendent states." They then separately, as members of a confederate
nation, each in its own manner, adopted forms of state government,
under which, as separate states, they had all the functions of good
government, subject to the limitations and grants of the national
confedei-ation, which unified their nationality. The prerogatives of

« McCaUoch ©. The State of Maryland,
17 U. S. (4 Wheat) 316; Const. Pream-
ble; Sd. Art. 4, § 3.

* The State of Rhode Island v. The
SUte of Massachusetts, 37 U. S. (12

Pet. Rep.) 720; The TJ. S. v. Hudson,
11 U. S. (7Cranch), 33; Livingston r.
Van Ingen, 9 Johns, 574; Martin v.
Hunter's Lessee, 14 U. S. (1 Wheat)

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the Crown and the transcendent power of Parliament, all elemental
and ultimate national supremacy, devolved upon the states and the
people thereof, in a plenitude unimpaired by any act, and controlla-
ble by no authority. Each state was in itself, and as to its own pow-
ers, an independent government, and foreign to the other states of
the union, as well as to other nations. It was competent for the
people of the states, thus to create, by common consent, a genei*al
government, and to invest it with all the powers which they might
deem proper and necessary ; to extend or restrain those powers ac-
cording to their own good pleasure ; and to give them a permanent
and supreme authority.*

§ 25. The Articles of Confederation and tlie Constitntion.— For

mutual aid, these states, in 1777, formed articles of perpetual union
of feeble cliaracter, known as the Articles of Confederation, limit-
ing the powers of the states. And finally, in 1789, to form a more
perfect union, and especially to establish justice, the present "Gov-
ernment of the United States " was formed by the Constitution of
the United States, and to it was granted, by that instrument, a por-
tion only of the powers previously existing in the states and the peo-
ple thereof. It had been a " league : " it was made a " government."
It was a government made by taking from the states, and the peo-
ple thereof, and transferring to the United States, and the people
thereof, certain portions of sovereignty.*

It took from the states all their powers of national sovereignty :
" No state shall enter into any treaty, alliance, or confedei-ation ; "
" No state shall grant letters of marque and reprisal ; " " No state
shall coin money ; " *' No state shall emit bills of credit ; " " No state
shall make anything but gold and silver a tender in payment of
debts ; " " No state shall pass any bill of attainder ; " '* No state
shall pass any ex post facto law ; " " No state shall pass any law im-
paling the obligation of contracts ; " " No state shall grant any title
of nobility ; " ** No state shall, without the consent of Congress, lay
any imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws;" "No state
shall, without the consent of Congress, lay any duty of tonnage,"

6 Martin «. Hunter's Lessee, 14 U. S.
(1 Wheat) 324, 325; Livingston t. Van
Ingep, 9 Johns, 675.

The State of Rhode Island o. The

State of Massachusetts, 37 U. S. (12 Pet.
Rep.) 720; The U. S. v, Hudson, 11 U.
S. (7 Ci-anch), 33.

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"nor keep troops or ships of war in time of peace," " nor enter into
any agreement or compact with another state, or with a foreign
power." All these are characteristic, elemental rights of sover-
eignty : without all of them, no state can properly be called sover-
eign, and yet no state of this union has one of them. All these,
with many other great powers of national sovereignt}^ of which it
is necessary to specify here only " the power to regulate commerce
Avith foreign nations, and among the several states, and with the
Indian tribes," and the judicial power, embracing " all cases of ad-
miralty and maritime jurisdiction," are granted to the United States.

§ 26. Grants of the Constitution. — Some of these grants convey
elemental po Wei's of government in all their fulness and force, while
others ai-e conveyed in a modified and restricted form. They were
grants by governments already organized, and possessing and actu-
ally exercising, sovereignty, unlimited, except by the few restrictions
of their articles of perpetual union. They were made by the " Peo-
ple of the United States," but not by the people as a primary and un-
organized mass solely, but by the people already formed into regular
communities, and acting through or under their established consti-
tutions; they were thus direct grants by the people, of those primi-
tive powers, which, on the theory of our government, are supposed
to emanate from the people, and they were also gi'ants, by established
popular governments, of powers constituting a part of their own ac-
knowledged functions ; and while they were the act of the consti-
tuted authorities, in the name of the people, they were also ratified
by the people, as the ultimate source of political power. They are
therefore, all of them, to their proper extent, and for the accomplish-
ment of their proper purpose, of the most uncontrollable and irre-
sistible character, and they are without any limit, except such as is
prescribed by the constitution itself. Thus, the power of peace and
war, of international negotiation, of coinage, the judicial power over
all cases affecting ambassadors, and over all cases of admiralty and
maritime jurisdiction, and others, are ti-ansferred to the general gov-
ernment, free from all restriction and limitation.^

§ 27. Its Purposes and Powers. — All the powers in the consti-
tution were conferred upon the general government for purposes

' McOulloch V. The State of Maryland, 17 U. S. (4 Wheat) 316; Const. Ai-t. 1,
H8, 10; id. Art. 3, §2.

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expressed in the constitution, in view of which purposes they are
respectively to be construed. The constitution was made by the
people of the United States " to form a more perfect union^ establish
justice^ ensure domestic tranquility^ provide for the common defence^
promote th^e general welfare^ and secure the blessings of liberty^ to them
and their posterity.^^ Its gmnd pui-pose was to unify the whole in
the relations of internationality, and all its minor purposes were sub-
ordinate and ancillary to this. Its grants, therefore, consist of great
classes of powers. Those powers which should especially regulate
our intercourse with foreign nations and their subjects, with the
states and their citizens, and those in tlie exercise of which we were
ourselves to be emphatically one people, and to be clothed with equal
rights, although in other and municipal respects we were to remain
members of different communities, were granted to the general gov-
ernment wholly and absolutely, in order that our intercourse with
foreign powers might lie so regulated as to make us one of the great
family of nations, acknowledging the laws and respecting and adopt-
ing the usages which constitute the rule of international intercourse,
and to prevent the separate states from making inconstant and con-
flicting laws, and destroying the harmony which could alone make
us, and keep us one nation, the United States.*

§ 28. Its Grants of Judicial Power. — This is especially evident
in the constitutional grants of judicial power. They are not grants
to this or that court of the United States. The constitution does
nothing but draw the line between the cases which belong to the
United States Government and those which belong to the state gov-
ernments. It transfers from the states and the people of the states
to the general government, the judicial sovereignty in great national
classes of cases, to be exercised, not necessarily by courts constituted
like the British Admimlty, or the British courts of common law or
equity, but by such courts, and in such manner as the Congi-ess of
the newly created government should provide. When the constitu-
tion was made, there were no courts of the United States of any
sort, nor was it certain that there woul^ be here (as there never has
been) a purely admiralty court ; but it was certain that in the mul-
tifarious transactions on the ocean, seas, lakes, and rivers, which

8 Const. Preamble, Art. 1, §§8, 9, 10;
Id. Art 3, §2, Art. 4; Martin v. Hun-
ter's Lessee, 14 U. S. (1 Wheat.) ^35,

347, 348; Story's Commentaries, § 1672;
The Moses Taylor, 71 U. S. (4 Wall.)

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were to be the highwaj-s of our intercourse and commerce between
the several states and the various nations of the world, questions
might continually arise, where the law of nations and the law of
maritime commerce — the maritime law of the world — ought to take
the place of the numerous conflicting and changing rules which could
not fail to result from the various legislation and adjudication of
the states. In no manner could a uniform administration of that
great branch of the law of nations, known as the general maritime
law, be secured, except by the tmnsfer of all cases of admiralty and
maritime jurisdiction, to the cognizance of the national judiciary.^

§ 29. RelatJon of the United States to Great Britain A fruit-
ful source of error in relation to the government of the United
States is its supposed relation to the British goveinnient. The
United States is sometimes said to be, and, in a limited historical
sense, is, an offset from Great Britain, and most of the people of
the colonies, at the time of the Revolution, were the descendants
of British subjects. Many of the states are really shoots from the
2^vernment of Great Britain, and, as such, were subject to the com-
mon law. It was, therefore, quite natural, that, in matters relating
to the foundations and powers of our government, many would first
look to the nation from which we had just been severed by a revo-
lution, and whose language and literature were our own. Still, it is
not to be forgotten, that our people were not homogeneous, but con-
sisted of persons from all civilized nations. The English, Scotch,
Irish, Welsh, Dutch, Swedes, and French, some by conquest and
some by emigration, were mixed and united to make the American
N^ation, and had all brought with them, to some extent, a knowledge
of, and an attachment to, the institutions of tlieir parent countries.
The creation or incorporation of other states from other conquered
or revolted colonies, with other laws and usages, was also contem-

And in all these nations which had ships and commerce, as well
as in England, causes of admiralty and maritime jurisdiction had
always arisen, and such cases had been decided, in different nations,
by courts of different names. In some nations, couits were express-
ly devoted to such cases under the name of Consular Courts, Tri-
bunals of Commerce, Maritime Courts, and Courts of Admiralty.

•Const. Art. 3, J 2; Waring t?. Clarke, I ^o Holmes' Annals, passim; Art of
46 U. S. (5 Howard), 4ol, 457. I Conf. Art 11; Const Art 4, §3.

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In others, as in England, cases of Maritime jurisdiction were, in
one form or another, entertained by all the courts of law and equity
in the kingdom, and decided according to that system of maritime
law which derives its force from the univeraal consent of commer*
cial nations.

§ 30. Oar Constitution not a Copy. — These circumstances may
not have been without their influence to induce the framers of our
constitution to make, as they did, a new and original government.
They did not in any manner address themselves to national preju-
dices or predilections, nor adopt, nor even allude to, any previously
existing government, as a pattern or standard, nor re-enact any
known code of laws, in whole or in part ; but they passed by in si-
lence the institutions of the whole world, and invented a constitu-
tion and laws which had neither pattern nor prototype, in the actual
and present stute, or past historj^ of the human mce.^^ When, there-
fore, they created or granted a power, it was a grant of that power,
not as it existed in one government or another, but a grant of the
power in the abstract. It was a creation of the mere governmental
function, to be exercised by the new government in its own pre-
scribed manner, without any regard to the manner in which it had
been exercised before or elsewhere.^

§ 31. Our Govemment and Laws not English. — The govern-
ment and laws of the United States, as established by and under
the constitution, cannot, in any proper sense, be called an oflfshoot
from those of Great Britain, nor have they any relation or similarity
to them. Our constitution was a new creation, made after the Rev-
olution, — ^after twelve years of actual independence under the con-
federation, — and was derived, not from any parent state, but from
oui-selves, and nowhere else. The existence of such a state as
Great Britain (to say nothing of her peculiar laws, courts or insti-
tutions) is not even remotely hinted at in the constitution, or in the

" [Mr. W. E. Gladstone in his letter
acknowledging the invitation to at-
tend the Centennial celebration of the
adoption of tlie constitution at Phila-
delphia on Sept 16, 1887, wrote :" I
have always regarded that constitution
as the most remarkable work known
to me in modern times to have been

produced by the human intellect, at a
sin<;le stroke (so to speak) in its appli-
cation to political affairs."]

^ Mad. Pap. passim ; Martin v. Hun-
ter's Lessee, 14 U. S. (1 Wheat) 331-
2; The State of Rhode Island v. Tlie
State of Massachusetts, 37 XJ, S. ( 12
Pet) 729, 730.

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articles of confederation, and her institutions cannot, justly, be con-
sidered as in any manner the exponents of our own. Indeed, in the
convention that formed the constitution, the institutions and exam-
ple of Great Britain were, with singular consistency, referred to
only that they might be avoided; and in the constitution itself
everything is studiously omitted, which might even recall to mind

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 4 of 80)