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those institutions. The common law of England has never been by
adoption, by inheritance, or by re-enactment, the law of the United
States, although it has been of some of the states." ^

§32. Force of Terms In the Constitution,— Our constitution
and laws are written in the English language, and, of course, to that
language we must look for the proper meaning and force of their
terms ; and this is the only link that connects the hiws and institu-
tions of the general government with those of any other nation.
When, therefore, the constitution or the laws make use of the words
equity^ common law^ admiralty^ maritime law^ civil law^ trial hy jury^
felony^ etc,^ it is to the English law, and to English dictionaries, that
we must resort for the meaning of those terms ; but it by no means
follows that we must look to the same source for the structure and
jurisdiction of our national courts, or for the rules of decision which
they are to follow. The force of a common language, even, added
to that of our historical connection, was altogether too feeble, prop-
erly, to give to our new-made and original political institutions any
transatlantic odor, much less to characterize them by strong English

§ S3. The Admiralty Jurisdiction Granted in the Judicial
Power. — ^In view of these considerations, it may be further observed
that the grant in the constitution of admiralty and maritime juris-
diction is confined solely to the judicial power, properly so called.
"The judicial power of the United States shall be vested in one
Supreme Court, and in such inferior courts as the congress may
from time to time establish." — "The judicial power shall extend
... to all cases of admiralty and maritime jurisdiction." The ad-
miral, in many countries, had numerous powers, duties, and rights,
which sprang from and related to his military or naval character,

" The Amiable Nancy, 1 Paine, Rep.
117; Mad. Pap. poMim; po9t, J 36;
Wheaton v. Peters, 33 U. S. (8 Pet)

591; The U. S. v. Hudson, 11 U. S. (7
Cranch), 32; Manro v. Almeida, 23 U.
S. (10 Wheat) 473.

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and to his dignity and station as a high executive oflScer clothed
with many of the prerogatives of royalty, and had no reference to
his judicial character. He was a high naval commander, and notli-
ing else ; a commander-in-chief, subordins^te only to the king; and
some of his mere perquisites and privileges have been subjects of
the jurisdiction of the admiralty court. All those portions of the
power of the admiral, which may be properly called executive or
administrative, are unknown to the American Admiralty. The
trappings, perquisites, prerogatives, and droits of the admiralty are
left to governments with which they are in harmony, and only a
purely judicial function, to be exercised only in cases of maritime
character, between party and party, by judges and courts, and not
by the admiral nor his deputies, was thus granted to the United
States, in the simplest and most comprehensive language. It pro-
vides for nothing but " cases " in courts.^*

§ 34. Withoat Limitation. — As it embraces nothing but cases,
so it embraces all cases of admiralty and maritime jurisdiction :
nothing can be more full, simple, clear, and unquestionable than the
words of the grant, " all cases.'^ It is subject to neither condition,
exception, nor limitation.^

§ 35. Subject-matter of Case Fixes Jarisdletion. — There are
two classes of cases granted to the Federal Judiciary. In one, the
nature of the case is everything, and the character of the parties
nothing ; in the other, the character of the parties is everything,
and the nature of the case nothing, — a distinction springing naturally
out of the purpose and character of the constitution, to which allu-
sion has already been made. " All cases affecting ambassador and
other public ministers and consuls ; " " Controversies between citi-
zens of different states," etc. : in these, everything depends upon
the character of the parties. " All cases in law and equity arising
under this constitution ; " " All cases of admiralty and maritime
jurisdiction : " in these, everything depends upon the nature of the
case, the subject-matter of the suit, and nothing upon the character
of the party.^^

^^Ante, §21, post, §§ 34, 38, 30; Co-
liens V, Virginia, 19 U. S. (6 Wheat.)
2t>4; Chisholra Exr. v. Georgia, 2 U. S.
(2 Dal.) 419.

IS Ante, § 21.

i«i4ntc, §§26, 27, 28; Cohens c. Vir-
ginia, 19 U. S. (6 Wheat.) 264.

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§ 36. The Same. — In none of these cases does the jurisdiction
dependupon the question what British court, or what court of any
other country, had jurisdiction of the case ; and as jurisdiction, in
cases in law and equity, depends simply on the question, whether
they arise under the constitution and laws of the United States, so
jurisdiction in cases of admiralty and maritime jurisdiction, depends
upon the admiralty or maritime nature of the case, and in no man-
ner upon the question, whether in England the cause would be
heard in the High Court of Admiralty, the Court of King's Bench,
the Court of Exchequer, or the Court of Chancery, with or without
a jury.

§ 37. AU Words in the Grant are Significant — We are not at

liberty to say that in an instrument so well considered and so care-
fully drawn, any words are jiot significant ; much less can we reject
such a word as aH, or deprive it of its proper significance. It can-
not be construed to mean a small, unspecified and debatable portion.
Nor can we add a condition or limitation to it. All cases of law
and equity arising under this constitution^ etc., all cases between cit-
izens^ etc., all cases affecting ambassadors^ etc. — ^in these clauses, lim;
itations are carefully inserted ; and as cautiously they are omitted
in the one under consideration. It would have been easy to say
"all cases of which the Court of King's Bench in England shall per-
mit the English High Court of Admiralty, from time to time, to
take jurisdiction," if it had been intended to leave a portion of our
legislative and judicial power to be exercised as regulated in Great
Britain through all time.^

"^nte, §21; Waring r. Clarke, 46 U. S. (5 How.) 467.

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Admiralty and Maritime Law.

§ 38. The Term ♦♦ Admiralty/'— The word admiralty^ in the
constitution, cannot be deprived of any of its proper force.* The
word is of frequent use in the maritime systems of many countries,
and refers especially to that class of cases which originally came
within the proper cognizance of the admiral. It is not necessary
here to repeat the ingenious and fanciful etymologies of the word,
nor even the more sound and rational ones. It is sufficient to say,
tliat they are but so many modes of showing the relation between
the title of the officer and l\is duties. Godolphin devotes the first
chapter of his View of the Admii-al Jurisdiction to ** the etymon
or true original of the word, with the various appellations thei*eof,"
m which, and the authorities there cited, the curious will find all
they desire.^

§39. Fnnetioiis of the Admiral. — Every maiitime nation has
certain rules or laws in relation to ships, shipping, and maritime
matters, which are peculiar to itself ; such as its navigation acts ;
the municipal regulations of its harbors, creeks, and bays, and nav-
igable rivei"s, and of its own vessels ; its rules in relation to drowned
persons, wrecks, obstructions in rivei-s, prohibited nets, royal fish-
eries, and other droits of the admiralty, constituting its maritime
police. These were originally enforced by the admiral, exercising
in part a high executive and administrative function, which was a
portion of the royal prerogative, and was, in substance, confined to
the waters and the vessels of his own nation. The admii-alty court
was the forum through which, and by the aid of whose process,
when necessary, these local municipal and, administrative laws were
enforced, and their violators punished. These are, properly, the
admiralty law of any country. Cases arising under these laws, are

^Ante, §21.
* Godolphin, chap. 1.

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cases of purely admiralty jurisdiction. Each nation ]ias its own
system of admii-alty law, which it changes and modifies at pleasure.^
It has been remarked, that the mere executive functions of the ad-
luiral, his prerogatives and perquisites, have no existence here.*

§ 40. The Term *♦ Maritime/' — The word maritime is also to have
its appropriate meaning — relating to the sea. Tlie words admiralty
and maritime^ as they are used in the constitution and acts of Con-
gress, are by no means synonymous, although able lawyers, on the
bench, as well as at the bar, seem sometimes to have so considered
them. They were evidently both inserted to preclude a narrower
construction, which might be given to either word, had it been used
alone.* The English Admiralty had jurisdiction of all cases arising
beyond sea, although not maritime in their character. These are
excluded by the use of both terms*

§ 41. Maritime Cases. — Maritime cases are more properly those
arising under the maritime law, which is not the law of a particular
country, and does not rest for its character or authority, on the pe-
cuUar institutions and local customs of any particular country, but
consists of cei"tain principles of equity and usages of trade, which
general convenience and a common sense of justice have established
in all the commercial countries of the world to regulate the deal-
ing and intercourse of mercliants and mariners, in matters relating
to the sea.^

§ 42. The Maritime Law the Rule of Deeision. — This maritime
law does not in the least depend upon the court in which it is to be
administered, but furnishes the proper rule of decision in cases to
which it applies, no matter in what court they may be brought ;

Mnte, §4.

^Ante, §§3, 4; po««, §43; Laws of
Oleron, 35-47; Laws of Hanse Towns,
Art. 1 ; Mar. Ord. Fran. Lib. 1, passim ;
NaT. and Rev. Laws U. S; Pardessus
Loix Mar. passim; Godolphin, 43;
Zoucb, 1-28; Sea Laws, 51, 54.

* Rev. Stat. §563, subd. 8; Martin v.
Hunter's Lessee, 14 U. S. (1 Wheat.)
30*, 335; Cohens v, Virginia, 19 U. S.
(6 Wheat) 204; Thackerey r. The

Farmer, Gilp. 628; The State of Rhode
Island V. The State of Massachusetts,
37 U. S. (12 Pet.) 744; ante, § 21.

«3 Kent Com. 3 edit. 1; Laws of 01-
eron, Ai*t. 14, 15 ; Laws of Wisbuy, Art.
26, 27; Marine Ord. of France; Roc-
cus, Introd.; Pardessus Loix Mar.; 2
Valin, 177, 188; Rhod. Law, 36; Con-
sulat, 18; Godolp. 43, 155; Zouch, Ass.
9; Sea Laws, passim; Malynes, 110;
Zouch, Ass. 6; post, §§329, 358.

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and it has, in fact, been administered in different countries, in dif-
ferent courts, each constituted in its own manner ; some called Ad-
miralty Courts, some Maritime Courts, some Consular Courts, some
Tribunals of Commerce. In England, the Court of Admiralty and
the Court of Chancery especially enforced it, while truth was re-
quired in pleading; but when, by the use of a fictitious venue, the
facts might be laid as occurring in London, the King's Bench took
jurisdiction and prohibited the Admiraltj*^ ; and thus, in the King's
Bench more than in the Court of Admiralty, and especially under
Lord Mansfield, the maritime law was built up and extended. In
like manner, that large portion of the admiralty law which relates
to the royal revenue, is, in England, administered in the Court of
Exchequer, instead of the Court of Admiralty.^

§ 43. The Law of the Courts. — The jurisdiction of the admiral,
and the administration of the admiralty law proper — the local mari-
time law — as it became a judicial function, has thus passed into the
hands of the courts, and they now administer the admiralty law and
the maritime law, both of which are sometimes called the admiralty
law, sometimes the maritime law, and sometimes the admiralty and
maritime law ; and cases arising under them are cases of admiralty
and maritime jurisdiction.®

§ 44. Maritime Codes. — In different maritime nations, these two,
— the local admiralty law and the general admiralty law, — ^have
been codified and are found united in the maritime codes and ordi-
nances which those nations have compiled or enacted, and which
will be further noticed in future pages of this work, when the actual
maritime law as administered in the civilized nations of the world,
will be more particularly the subject of inquiry.

§ 45. Other Maritime Systems. — In endeavoiing further to as-
certain what the framei-s of the constitution meant by the words ad-
miralty and maritime^ it is important to inquire more especially into
the admiralty and maritime systems of England, of Scotland, of the
British American Colonies, of the American States under the Con-

7 Spen. Eq. Juris. ; The King t, Ca-
rew, 1 Vem. 54; Meclanhara c. Foliam,
Gilb. Cases, 9; Glascott v. Lan^, 3
Myl. & Craig, 4o4; S. C. 2 Jur. 909;

Duncan v. MeCalmont, «3 Beav. 409.

« Ante, § 4; HaU Ad. Introd. 11; Era-
kine*8 Laws of Scot. 32; De Lovio c.
Boit, 2 GaU. Rep. 398.

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federation, and of France, which the framers of the constitution may
have had in mind. At the time when the constitution was formed,
English, Scotch, American, and French commercial enterprise con-
trolled most of the maritime commerce of the world ; and such was
our relation to them all, that the great men who were laying the
foundations of our government, while they did not adopt in detail
the institutions of any people, cannot be presumed, in so important
a matter, to have been ignorant of, or to have overlooked the mari-
time courts of either of those jurisdictions, and they must have been,
in some sort, historically acquainted with them all.

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The English Admiralty.

Tlie Ancient Jurisdiction of the English Admiralty.

§ 46. Its Earliest Jurisdiction,— The jurisdiction of the English
Admiralty, as actually exercised in its earliest days, and for centuries
afterwards, was most extended, various, and ample, embracing all
maritime causes of action, civil and criminal, of contract and of toit,
and all causes of action arising on sea or beyond sea in foreign
countries.^ In bringing together the proofs of this proposition, —
which, perhaps, many will consider sufficiently evident without
formal proof, — the hazard of being considered prolix and common-
place will not deter me from entering at length into the subject, and
spreading before the reader the more important documents relating
to it.

§47. The Grants of Jnrisdletion. — There are no statutes
granting jurisdiction to the Admiralty and other superior courts in
England.2 The Chancery, King's Bench, Common Pleas, Exchequer,
and Admiralty, are all, in theory, branches of the royal prerogative.
It is, therefore, in the acts and records of prerogative, in the com-
missions and ordinances of the monarch, that we are to look for tlie
grants of jurisdiction, and the proper evidence of its legitimate ex-
tent, except when they are limited by statute.

§ 48. The Admiral's Commission. — The commission of the Ad-
miral of England, by the ancient and the later patents, conferred a
most ample jurisdiction, in the most unequivocal terms. It was as
follows : " Damns et concedimus^ etc. We give and grant to N. the
office of our great Admiral of England, Ireland, and Wales, and the

> The Emulous, 1 Gal. 574; De Lovio
r. Boit, 2 Gal. 398; The Little Joe,
Stewart's Ad. R. 396.

> [The jurisdiction of the Admiralty
has since been extended by statute.
(Ante, § 6, note.)]

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dominions and islands belonging to the same, also of our town of
Calais and our marches thereof, Normandie, Gascoigne, and Aqui-
taine ; and we make, appoint and ordain him our Admiral, etc., with
all privileges, juiisdictions, etc., and power in civil causes, ad cogno-
9cendum de placitu^ to hold conusance oipleas^ debts^ hills of exchange^
policies of insurance^ accounts^ charter parties^ contractions^ bills of
lading^ and all other contracts which 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^ btmness^
or injury whatsoever^ had or done in^ or upon^ or through the seas^ or
public rivers^ or fresh waters^ streams^ and havens and places subject
to overflounng^ whatsoever^ within the flotving and ebbing of the sea^
upon the shores or banks whatsoever adjoining to them or either ofth^m^
from any the said first bridges whatsoever^ towards the sea^ through-
out our kingdom of England and Ireland, or our dominions afore-
said, or elsewhere beyond the seas, or in any parts beyond the seas
whatsoever," etc.*

§ 49. The Same.— All the patents of the office of Lord High
Admiral, from the beginning of Queen Maiy's time (1553) to the
time of Charles II., are said by Zouch to have been conceived after
one and the same form and tenor ; and from his declaration and that
of Selden, and from the commissions to the colonial vice-admirals
and judges, hereafter set forth, which are said by Judge Story to be
copied from them, I presume that, in the matter of judicial jurisdic-
tion, the whole series of commissions, for many centuries, has con-
ferred the same ample powers which will be found to be fully sustained
by the other solemn royal acts relating to the same subject.*

§ 50. The Same. — By the commission of Oyer and Terminer, also
granted to the admiral, according to stat. 28, Henry VIII., cap. 15,
power is granted to hear and determine " Of all and singular trea-
sons, robberies, murders, etc., as well in and upon the sea, as any
river, port, or fresh- water creek, or place whatever within the flow-
ing of the sea to the full, beneath the fii-st bridges towards the sea,
or upon the shore of the sea, or eLsewhere within the King's mari-
time jurisdiction of the admiralty of the realm, etc., as well against

•Zouch, Am. 2; Selden, lib. 2, chap. I < Waring v. Clarke, 46 U. S. (5 How.)
16; The Little Joe, Stewart's Ad. R. | 454.

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the peace and the laws of the land, as against the King*s laws, stat-
utes, and ordinances of the King's Court of Admiralty ; and also
touching all and singular other matters which concern merchants afid
proprietors of ships^ masters^ shipmen^ m^riners^ shipwrights^ fisher-
men^ workmen^ laborers^ sailors^ scavengers^ or any othersJ** *

§ 51. The Laws of Oleron. — The judgments or laws of Oleron,
made by King Richard I., on his return from the Holy Land, in the
latter part of the twelfth century (according to English judicial his-
tories),® are among the earliest records of prerogative legislation on
tlie subject of which we have any proper evidence. That monarch
iti said to have remained some time in the Island of Oleron, then a
part of his dominions, and to have* pronounced the judgments, as
they are called, of Oleron. They seem to be of the nature of the re-
scripts of the Roman Emperors, and, being collected together, have
now existed as a code of maritime law, for nearly seven hundred
years, as respectable for its universal authority, justice, and equity,
as venerable for its high antiquity. This code is accessible to all, and
will only be referred to here as embracing, in the most obvious con-
struction of its sententious judgments, almost all the variety of mar-
itime contracts, offences, -and liabilities, occurring as well in ports, in
harbors, and on the coasts, as on the open sea.

In the time of Henry VIII. they were published as " The judg-
ment of the sea of Masters, of Mariners, and Merchants, and all
their doings ; " which is but a liteml translation of the earlier French
title of the same code. Later English publications entitle them
'* The Naval Laws of Oleron, instituted by Richard L, King of Eng-
land, on his return from the Holy L}ind, in the end of the eleventh
century, for tlie better regulation of merchants^ owners^ and masters
of ships^ and mariners^ and all seafaring persons^ in maritime af-
fairs:' 7

§52. Zonch's Classification.— Zouch thus classifies their pro-
visions in a very general manner: —

*Zouch, Ass. 2.

•I am not ignorant that Pardessus
has clearly shown, that the bvws of Ole-
ron were not the production of Rich-
ard I. ; but as affecting the question un-
der consideration, the English view of
their origin is alone important; and the

ablest English writers, including the
learned Selden, have claimed them as
the production of tliat monarch.

' Cleirac, 7; Pet. Ad. R. App; Zouch,
Ass. 3; 1 Pardessus, 320; Prynne, 107;
Miege's Sea Laws, 3; Gk>dolph. 103;
Sea Laws, 120.

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**1. Touching ships hired for sea voyages, and their proceedings
in the same.

" 2. Touching the safe keeping and delivery of goods received
into ships.

" 3. Touching the engaging (selling or hypothecating) of ships
or goods^ in case of necessity.

*' 4. Touching contributions to be made for loss, upon occasion of
common danger.

" 5. Touching damages done by or betwixt several ships.

" 6. Touching the charge for hiring pilots, and their duty."

Under each of these classes he gives several specifications, and
there are many matters of which he makes no mention, including
mariners' wages.®

§ 53. The Black Book of the Admiralty — The Black Book of
the Admiralty is an ancient book or register of admiralty laws, de-
cisions, ordinances, and proceedings and acts of the King, the Ad-
miral, and the Court of Admiralty, of England, from the earliest
periods. It is not known with certainty when, or by whom, it was
collected or compiled. It is of an ancient hand apparently, not
written all at once, nor by one person, but the fii-st part in the reign
of Edward III., or Richard If., and the latter part in the reigns of
Heniy IV., Henry V., and Henry VI., long before the angiy con-
troveraies between the common law courts and the Court of Admi-
ralty. It has been always considered by all writers on maritime law,
as a book of very gieat authority, containing the ancient rules or
statutes of the English Admiralty. Mr. Selden styles it, " Vetusti
Tribunalta Maritimi Comment arii^^^ and " Codex Manuscriptus de
Admiralitatu ; '* and says, there ai-e in it constitutions touching the
Adminilty of Henry L, Richard I., King John, and Edward I.®

§ 54. The Same.— The records of the Black Book of the Ad-
miralty make frequent i*eference to the laws of Oleron in maritime
matters, and show clearly that they were the rule of decision in
these early days. At that time, however, judicial as well as execu-
tive jurisdiction was a source of power and profit from the numerous
forfeitures and other perquisites, and all courts were ingenious and

^Zoach, Ass. 3.

• Zoncb, Ass. 3; Prynne, 115; 2 Brown
CiT. &. Ad. Law, 42; Zouch, Ass. 1; Seld.

Dom. Mar. b. 2, c. 28; Notes to Fortes-
cue, cap. 32 ; De Lovio o. Boit, 2 GaU.

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grasping in their efforts to extend their power. The lords, in their
liberties and franchises, by their bailiffs and other officei"s, encroach-
ed upon the proper jurisdiction of the admiral, and the subject was
brought before the king and his council in the second year of Ed-
ward I., and the following ordinances were the result of that resort
to royal prerogative. They are taken from the learned Prynne,
who says he transcribed them from the Black Book of the Adnii-

§ 55. The Same. — In the second year of Edward I., these two laws
and ordinances were made and published by him and his lords at
Hastings, registered in the Black Book of the Admiralty, page 29 : —

^^ Item. — It is agreed at Hastings by the King Edward the first
and his lords, that as many lords had divei-s franchises to hold pleas
in parts, their seneschals and bailiffs shall hold no plea if it touch
merchant or mariner^ as well by deeds as by obligations or other
deeds, whether the same amount to 20 or 40 shillings, and if any one
shall be indicted for doing the contrary and shall be convicted, he

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 5 of 80)