CHAPTER VII.

The English Admiralty at the time of the American Revolution.

111. It has been remarked, that our situation previous to the Revolution as British colonies, and the adoption of the English common law, as interpreted in the English books, did much to influence opinion in this country in favor of the narrow English rule of admiralty jurisdiction which prevailed at that time, and that that narrow platform of jurisdiction was only what was left after centuries of strife between the Courts of Common Law and the Court of Admiralty, which resulted in confining the Admiralty to the following very inconsiderable class of

cases :

To enforce judgments of foreign Courts of Admiralty, where the person or the goods are within the reach of the courtMariner's Wages, where the contract is not under seal, and is made in the usual form-Bottomry, in certain cases and under many restrictions-Salvage, where the property was not cast on shore-Cases between part owners disputing about the employment of the ship--Collisions and injuries to property or persons on the high seas-and droits of the admiralty.

This was the whole of what was left of that large jurisdiction which it had before rightfully exercised for centuries.

It is not easy to perceive any satisfactory reason why those few causes of action alone (having no peculiar odor of nationality) should be deemed of so much importance as to be withdrawn from the judicial power of the States, and made the subject of a constitutional grant to the National Government. Indeed it would seem more like puerile caprice than that ripe wisdom which we habitually look for in the fathers of the republic.(a)

112. The struggle between these courts originated in the

(a) 5 Howard, 452, 3. 3 Black. Com. 106.

same spirit that attempted to break down the whole system of Equity and none can deny that the courts of common law manifested a great degree of jealousy and hostility, fostered by strong prejudice and a very imperfect knowledge of the subject. The English Admiralty has always rightfully had jurisdiction over all maritime contracts, and the decisions of the courts of common law, prohibiting its exercise, are neither consistent in themselves nor reconcilable with principle. Had the common law courts had the power to issue writs of prohibition to the Chancellor, and had that high officer been any thing less than the highest judicial functionary, and the first subject in the realm—in those days when might was right, in courts as well as camps, and jealousy, and prejudice, and arrogance, to say nothing of the love of gain, influenced judicial decisions of judges, the Court of Chancery would have met the fate of the Court of Admiralty, and have been stripped of the most useful portion of its jurisdiction.(a)

113. The Court of King's Bench has power to issue prohibitions, but it has no power to extend or diminish the jurisdiction of the Admiralty. That jurisdiction is conferred by the King's prerogative and royal commission, or by statute or immemorial usage, and not otherwise, and can be limited only in the same manner. If the King's commission, or the proper exercise of the royal prerogative, or a statute, give the jurisdiction, the King's Bench cannot deprive the court of its jurisdiction-that is to say, of its right to take cognizance of causes—although by an improper exercise of irresponsible power, it can prevent the Admiralty from exercising the jurisdiction which properly belongs to it. The right of the Admiralty depends upon the construction of the grant of jurisdiction alone, no matter how often or for what causes, prohibitions may have been issued. The Court of King's Bench has neither legislative nor executive powers, which enable it rightfully to dispense with the law, whether the law be founded in parliamentary or prerogative legislation.

If at the time of the American Revolution, and before the

(a) 2 Gall. 348,

adoption of the Constitution of the United States, the King's Bench had determined to carry out, to their legitimate extent, the rules under which the Admiralty jurisdiction had been so much restricted, then prohibitions must have issued in all cases of mariner's wages-contracts under seal, (bottomry and respondentia bonds,)-contracts signed on shore, or within any county, including every port in the realm-the English Court of Admiralty would have been denied its entire jurisdiction. It will hardly be contended, that, in such cases, the English Court of King's Bench would have annihilated all cases of admiralty and maritime jurisdiction throughout the world, so that the words used in the Constitution would have no force or signification whatever. That court surely has not now, nor could it have then had, any such power to affect the legislation and institutions of other nations. It had no such power in the days of Lord Coke. If it could not have abolished all cases of admiralty and maritime jurisdiction, how could it abolish any of them?(a)

(a) § 14, 28, 37. 7 Cranch, 116.

CHAPTER VIII.

The Admiralty Jurisdiction of Scotland and Ireland.

§ 114. The admiralty and maritime jurisdiction of the other portions of the Empire of Great Britain, and even of that island, by no means harmonized with this narrow jurisdiction of the High Court of Admiralty of the kingdom of England. In the kingdom of Scotland, and in the American Colonies, the Admiralty jurisdiction was of the most extensive and beneficial character.(a)

115. "It is true that in Scotland, before the creation of an Admiral, after the example of other nations, the Deans of the Gild were ordinarily judges in civil debates betwixt mariner and merchant, as the Water-Bailey betwixt mariner and mariner, like as the High Justice was judge in their criminals. Which actions, all were (A. D. 1682,) falling forth betwixt the persons aforesaid, of due, appertain to the jurisdiction of the Admiral, and therefore his Judge Depute or Commissar, called Judge Admiral, and none other, should sit, cognosce, determine and minister justice in the aforesaid causes. As likewise upon all complaints, contracts, offences, pleas, charges, assecurations, debts, counts, charter parties, covenants, and all other writings concerning lading and unlading of ships, fraughts, (freights), hires, money lent upon casualties and hazard at sea, and all other businesses whatsoever amongst seafarers, done on sea, this side sea or beyond sea, not forgetting the cognition of writs and appeals from other judges, and the causes and actions of reprisals or letters of mark," and also a most extended police and criminal jurisdiction.(b)

The Scotch Admiralty Court has always had jurisdiction also in cases arising on Bills of Exchange and other mercantile

(a) 2 Gal. Rep 468, 475.

(b) The Collection of Sea Laws, a Scotch tract, in Malynes, chap. 2, 47, 48.

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ADMIRALTY JURISDICTION OF SCOTLAND.

causes not maritime, and also jurisdiction to arrest a debtor about to depart the country, and compel him to give security to pay the debt.(a)

§ 116. The High Admiral is His Majesty's Justice General upon the Seas, and in all ports, harbors, creeks, and upon the navigable rivers below the first bridges and within the flood mark, he hath jurisdiction in all maritime and seafaring causes, foreign and domestic, whether civil or criminal within the realm. The jurisdiction of the Court of Admiralty is both civil and criminal. In civil matters, the Judge Admiral is judge in the first instance, in all maritime causes as in questions on charter parties, freights, salvages, wrecks, bottomries, policies of insurance, and all questions relating to the lading and unlading of ships, or any act to be performed within the bounds of his jurisdiction. He has jurisdiction also in all actions for recovery of goods or their value, where the goods have been sent by sea from one port to another. In criminal matters, he has the exclusive cognizance in the crimes of mutiny and piracy on ship board.(b)

§ 117. There has also been in Ireland, from time immemorial, an Instance Court of Admiralty, and up to the year 1782, it also exercised the powers of a prize court. By the articles of Union, and by the act of 1782, its jurisdiction was confined to causes civil and maritime only.(c)

I have not thought it necessary to inquire into the details of the actual jurisdiction of the Irish Admiralty, and give it this passing notice only, further to illustrate the remark which has been made before that, in the different portions of the British Empire, Admiralty jurisdiction was exercised in a widely dif ferent extent, and that " all admiralty and maritime cases" was not necessarily confined to the small class permitted to the English Admiralty.

(a) Boyd's Proceedings of the Admiralty of Scotland, 67. Ibid. 69.

(b) Dunlap's Prac. 35. Boyd's Proceedings, 4, 5, 6. 2 Brown Civ. & Ad. 30. Bell's Dic. of the Laws of Scotland, 29-(words, Admiral and Court of Admiralty,) Erskine's Laws of Scotland, 32.

(c) 2 Brown Civ. & Ad. 32.