COURTS TO SETTLE OR CONGRESS DEFINE.

37

Now, whether the existence of this mixed standing commission in England to hear and determine causes of insurance, and denominated "a Court of Policies of Insurance," be reconcilable with the doctrine contended for and the construction claimed in the decision of De Lovio v. Boit, may be well and safely left to the members of the profession to determine, each for himself, according to their varied convictions, prejudices, or pre-. dilections.

Certainly, should a case of sufficient magnitude again arise, in which the question could be fairly presented to the full court at Washington, it is quite desirable to have it carried there; and it would seem to be, at least, doubtful if the decision of 1815 would there secure an affirmative sanction.

But if the enlarged jurisdiction, as exercised hitherto in the first circuit, should, as matter of policy or convenience, be deemed the better practice, let Congress directly interpose (if it can constitutionally), and supply at once the needed legislation for all the circuits. Surely, in this country, congressional would seem to be preferable to judicial legislation. In England, many acts of Parliament, during the long and useful judicial career of Sir Stephen Lushington, have been passed, which materially extended the jurisdiction and improved the practice of the English Admiralty Court; and this important legislation, as I understand it, is due primarily to the counsel and just influence of that great and experienced admiralty judge.

And now, if harmony be desirable in the administration of the law in all of the United States circuits, then there should be uniformity in the legislation, conferring jurisdiction, and regulating the practice of the courts in

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ADMIRALTY JURISDICTION.

the several circuits. Congress alone can compel such uniformity, by applying the appropriate remedy. If Congress omit this high duty, a doubtful decision and unreliable precedent will still continue to disturb that harmony of action and practice, which ought to prevail, alike in all the different circuits of the United States, where questions of admiralty are likely to arise.

• NOTE. Since completing chapter II., part 3d of Browning and Lushington's Reports have come to hand, and for the first time, I have examined "the Rules for Appeals in Ecclesiastical and Maritime Causes," adopted by the Privy Council December 11, 1865, to take effect from and after February 1, 1866.

These Rules are framed for the government of the ecclesiastical and admiralty courts in cases of appeal; and, it is to be observed, that while the courts are styled "Admiralty," their causes are called "Maritime," thus employing these terms substantially if not precisely as synonymous. This will become more apparent by referring to the preamble, caption, and several of the adopted rules.

By an act of 6 & 7 Vict., ch. 38, entitled "An Act to make further Regulations for facilitating the hearing of Appeals and other Matters by the Judicial Committee of the Privy Council," it was enacted, among other things, that the Judicial Committee might, from time to time, make such rules, orders, and regulations respecting the practice and mode of proceeding in all appeals, from the Ecclesiastical and Admiralty and Vice-Admiralty Courts, as to them should seem fit; these not to be of any force or effect until approved by her Majesty in Council. Accordingly, at the Court at Windsor, the 11th day of December, 1865 —

The Judicial Committee reported Rules, which her Majesty, by and with the advice of her Privy Council, saw fit to approve; and enjoined the Right Honorable Judge of the High Court of Admiralty, Dean of the Arches, and all other judges and officers of the said courts of admiralty and ecclesiastical jurisdiction, to take notice thereof and govern themselves accordingly. They were entitled "Rules for Appeals in Ecclesiastical and Maritime Causes."

First, provision is made for the meaning of certain terms; thus "Appeals " shall mean 66 an appeal to her Majesty in Council in Ecclesiastical and Mari

time Causes."

So "Registry" shall mean "the Registry of her Majesty's Court of Appeals in Ecclesiastical and Maritime Causes."

"Registrar" shall mean "the Registrar of her Majesty in Ecclesiastical and Maritime Causes."

USAGE IN ENGLAND BY PRIVY COUNCIL.

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"Document" shall mean "Document, etc., under the seal of her Majesty in Ecclesiastical and Maritime Causes."

Thus, in 1865, the responsible legal advisers of the Crown seem to have used the terms “Admiralty" and "Maritime" as convertible: “Admiralty" to designate that court; "Maritime" to designate the causes of the Admiralty Court.

In the text page (14), the author attempted to establish a similar proposition; which attempt is now seemingly justified by the acts of the Judicial Committee of the Privy Council.

CHAPTER III.

MATTERS WHEREIN THE UNITED STATES FEDERAL COURTS ENTERTAIN AND DECLINE ADMIRALTY JURISDICTION.

HAVING, in the preceding chapters, treated of the origin and general restrictions of admiralty practice and jurisdiction, and having endeavored to define, with precision, the meaning of the terms admiralty and maritime, when employed to designate, either in England or the United States, a particular jurisdiction, I will proceed first to make a condensed statement of the different decisions made by our highest and most respected tribunals, in relation to matters of which the Federal courts, as admiralty courts, have already taken cognizance; and will, afterwards, notice a few cases, in which the same courts have declined to entertain or exercise such jurisdiction.

In a series of cases, the Supreme Court, since its original organization under the Constitution, have solemnly decided that the Federal courts have and can exercise admiralty jurisdiction; thus, in cases of salvage of one foreign vessel by the officers and crew of another foreign vessel: 2 Cranch, 240, Mason v. Ship Le Blaireau; so, in suits to try the title to proceeds in the registry of the court: 3 How. 568, Andrews v. Hall; in proceedings in rem to enforce a lien of material-men, for necessaries and supplies furnished to a vessel in a port

CASES AFFIRMING JURISDICTION.

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to which she is foreign; or, on the faith that such vessel is foreign, if so held out: 9 Wheat. 409, St. Jago de Cuba; so, in case of a domestic vessel, if the local law gives a lien, material-men may enforce it in admiralty : 7 Pet. 324, Peyroux v. Howard; so, in tortious seizures at sea, process in rem by libels to attach goods, rights and credits, in the hands of third persons or garnishees, may be sustained, without specifying the property to be attached, and, by that attachment, compel appearance; and then proceed to a decree of condemnation to satisfy the claim: 10 Wheat. 473, Mann v. Almeida; in this same case, it appeared that though the seizure was piratical, the civil remedy is not merged in the piracy; so also, the Federal courts may exercise admiralty jurisdiction over contracts of affreightment to be performed on the sea, between the cities of Providence and New York: 6 How. 344, New Jersey Steam Navigation Co. v. Merchants Bank; likewise, over claims for pilotage, even though State laws regulate both the service and its compensation: 10 Pet. 108, Hobart v. Durgan; so, over seizures upon waters navigable from the sea, by vessels of ten or more tons burden: 4 Cranch, 443, United States v. Schooner Betsy and Charlotte; and 7 Ib. 112, Whelan v. United States; also, over informations in the District Court to enforce the forfeiture of a vessel, for exporting arms and munitions, contrary to the act of May 22, 1794: 3 Dallas, 297, United States v. La Vengeance; over questions of forfeiture arising under the same act prohibiting the slave-trade: 2 Cranch, 406, United States v. Schooner Sally; over collisions occurring on the Mississippi River, above the ebb and flow of tide: 12 How. 466, Fretz et al. v. Bull et al.; this last case, and The Genesee Chief, controlling and