THE AMERICAN ADMIRALTY. CHAPTER I. General View. 1. As the commerce of the world has increased, so have the laws regulating its transactions, and prescribing the rights and duties of its agents, and the proper jurisdiction of the tribunals authorized to hear and decide causes arising out of those transactions, increased in importance. Not the least important of these, are causes connected with maritime commerce, which so often brings together in interest and in conflict, the people 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 establishments, extending 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 the citizens and subjects of the other great commercial nations of the world, domiciled among us. 2. The character and pursuits of sea-faring life, and of maritime commerce, have in all countries been considered 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 intercourse, and courts of justice, and codes of law, and modes of administering them, which are especially devoted to the rela tions of maritime affairs: and the encouragement of navigation, and the proper regulation and employment of ships have always been favorite objects of the laws of all commercial nations.(a) 3. In the earlier history of nations, when absolute rule and stong executive powers have exercised most of the functions of government, the affairs of the sea 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 maritime 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, and, originally, admiralty jurisdiction was but another phrase for the power of the Admiral. The mild and equitable. system of admiralty law, thus derives its descent through a long line of modifications and meliorations from the absolute and irresponsible rule of naval command, as the peaceful law of real estate, and the common law generally, have descended from the iron despotism of military conquest and dominion carried to its perfection in the feudal system.(b) 4. The declaration of the great Roman orator, cedant arma toga, 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 (4) Zouch's Jurisdiction of the Admiralty, Ass. 1. and Ad. Law, chap. 2. 3 Kent's Com. 1 to 21. Ship. 93. Ibid. Ass. 9. 2 Brow. Civ. (b) Hall's Ad. intro. 7, 8. Godolphin's View of the Admiral Jurisdiction, chap 1,2 Zuch, Ass. 2, 3. subject to the courts which exercise, with less show, more quietly and usefully, the functions which he considered his most homely attributes, and 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 extended, and international commerce and intercourse became more frequent, the sea was considered the common highway of nations, where, 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 admiralty law. 5. The admiralty law is indebted for many of its characteristics to the circumstances of the countries in which it was first 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 great system of jurisprudence, were incorporated 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 common law was the law of the land, the civil law was held to be the law of the admiralty, and the course of pro, ceedings in admiralty, closely resembled the civil law practice. (a) 6. A court thus proceeding according to the course of the civil law, and withont 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, seek (a) 2 Bro. Civ. and Ad. Law, 31. ing to steal away the hearts of the people from the trial by jury, and the sterner proceedings of the common law, and a concerted and vigorous effort was made to deprive 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 managed 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 by Lord Coke, then chief justice of the King's Bench, as unscrupulous and tyranical, as he was learned, and as that court was superior to the court of admiralty, having the power to control its proceedings by the writ of prohibition, 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 doubtful. The jurisdiction of the Admiralty was 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.(a) 7. The contest between the two jurisdictions 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 prepossession in favor of a narrower jurisdiction of the English Admiralty, and occasionally, up to the present time, lawyers 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 Admiralty anciently possessed, and which the continental courts still enjoy, but is confined to the exercise of those powers, which the sternest necessity had compelled the king's bench, in the days of its most arrogant triumph, to tolerate in England. This has not (a) Zouch, passim. Godolphin, passim. Prynne's Animadversions, passim. 5 How. 453. 2 Gal. 348. 3 and 4 Vict. c. 65. 9 and 10 Vict. c. 99. failed to keep unsettled the law of admiralty jurisdiction in this country, although 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. (a) 8. Among the distinguished jurists who have insisted that the grant in the constitution, embraces only those few cases of admiralty 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 extention of the civil jurisdiction of the admiralty 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, arguments and judicial dicta, abound in our reports, on both sides of the general question and of many of its subordinate points, and have served to keep the whole question' open, so far as the decisions of the highest tribunal are concerned. But few cases, comparatively, involve a sufficient amount to give the Supreme Court jurisdiction, on appeal, and in the cases 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 established entirely consistent with the early elementary cases, and with the fundamental principles of maritime law.(b) (a) 1 Kent's Com. 371, 377. 12 Wheaton's Rep. 614. Baldwin's Rep. 544. 5 Howard, 441. 6 Howard, 3-5. Const. Art. 3, § 2. Jud. Act of 1789, § 3. (b) 1 Kent's Com. 371, 377. Conk. Treat. 2 Edit. 137. Ibid. 145. 1 Pet. Ad. 104, 113. 4 Gal. 426, 429. 1 Paine, 111, 117. 2 Gal. 398. 5 How. 473. 5 |