2 Gall. 398 FOR EDUCATIONAL USE ONLY Page 1 2 Gall. 398, 7...

DELOVIO v. BOITC.C.Mass.,1815.Case No. 3,776, 2 Gall. 398FN2

FN2 Reported by John Gallison, Esq.

Circuit Court, D. Massachusetts.DELOVIO

v.BOIT et al.FN1

FN1 ‘This case is a very remarkable one,being, in truth, a learned and elaborate es-say on admiralty jurisdiction, and one ofthe most elementary and luminous viewsof the subject extant. This great opinionought to be thoroughly studied by thosewho aim at solid attainments in this depart-ment of the law.’ 2 Hoff. Leg. Study (2d.Ed.) p. 465.

Oct. Term, 1815.

West Headnotes

Admiralty 16 1(1)

16 Admiralty16I Jurisdiction

16k1 Nature, Grounds, and Scope in General16k1(1) k. Jurisdiction in General. Most

Cited Cases(Formerly 16k1)

Causes within the admiralty jurisdiction are withinthe jurisdiction of the district courts of the UnitedStates, by virtue of the delegation of authority “inall civil causes of admiralty and maritime jurisdic-tion.”

Admiralty 16 10(4)


16k9 Contracts16k10 Maritime Contracts in General

16k10(4) k. Insurance and Contracts to

Procure. Most Cited Cases(Formerly 16k1)

Courts of common law have a jurisdiction concur-rent with the admiralty over contracts of marine in-surance.

Admiralty 16 10(4)



16k10(4) k. Insurance and Contracts toProcure. Most Cited Cases

(Formerly 16k10)A contract of marine insurance is a maritime con-tract, within admiralty jurisdiction.

Admiralty 16 10(2)



16k10(2) k. Nature of Contract in Gen-eral. Most Cited Cases

(Formerly 16k10)The jurisdiction of admiralty, in the case of con-tracts, depends upon the subject-matter.

Admiralty 16 10(1)



16k10(1) k. Jurisdiction in General.Most Cited Cases

(Formerly 16k10)Admiralty has jurisdiction over all maritime con-tracts, wheresoever the same may be executed, andwhatever may be the form of the stipulations.

Admiralty 16 18

16 Admiralty

2 Gall. 398 FOR EDUCATIONAL USE ONLY 2 Gall. 398, 7 F.Cas. 418, 1997 A.M.C. 550, No. 3776(Cite as: 2 Gall. 398)

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16I Jurisdiction16k17 Torts

16k18 k. Maritime Torts in General. MostCited CasesAdmiralty has jurisdiction over all torts and injuriescommitted upon the high seas, and in ports or har-bors within the ebb and flow of the tide.

*418 Mr. Selfridge, for libellant.Mr. Welsh, for respondents.STORY, Circuit Justice.

This is a libel brought in the district court upona policy of insurance, alleging it to be a maritimecontract, of which that court, as a court of admiraltyand maritime jurisdiction, has cognizance. There isa plea to the jurisdiction, and the present questionrests solely on the general sufficiency of that pleaas a declinatory bar. It has been argued, and nowstands for judgment. I shall make no apology forthe length of this opinion. The vast importance andnovelty of the questions, which are involved in thissuit, render it impossible to come to a correct de-cision without a thorough examination of the wholejurisdiction of the admiralty. I shall, therefore, con-sider, in the first place, what is the true nature andextent of the ancient jurisdiction of the admiralty;in the next place, how far it has been abridged oraltered by statutes, or by common law decisions;and in the last place, what causes are included inthe delegation by the constitution to the judicialpower of the United States of ‘all cases of admir-alty and maritime jurisdiction.’

The admiralty is a court of very high antiquity.It has been distinctly traced as early as the reign ofEdward the First. Fitz. *419 Avowry, 192; Seldenon Fortescue, 67, note e to c 32); Zouch, Adm. Jur.114; Spel. Gloss. voce ‘Admiral;’ Godolphin, Adm.Jur. 22-30; Exton, Adm. Jur. 3; Seld. de Dom. Mar-is, lib. 2, c. 16, p. 161; Id. c. 24; 12 Coke, 79. If itbe not of immemorial antiquity, as Lord Coke sup-poses (Co. Litt. 11b, 260b; Greenway v. Barker,Godb. 260; 2 Brownl. & G. 16), it is almost certain,that its origin may be safely assigned in some an-terior age. Godolph. 29; Burroughs, Sover. of Brit-ish Seas, 7-9; Seld. de Dom. Maris, lib. 2, cc.14-16, 24; 2 Brown, Adm. 24; 1 Valin, Comm. 1.

There is strong probability of its existence in thereign of Richard the First, since the Laws of Oler-on, which were compiled and promulgated by himon his return from the Holy Land, have always beendeemed the laws of the admiralty, and could nothave been fully enforced in any other court. Seld.de Dom. Maris, lib. 2, c. 24, p. 206; Seld. adFletam, c. 8, § 5; Godolph. 143-146; Roughton'sArticles, art. 19, and notes C 16, and C 17 inClerke, Prax. 121; Co. Litt. 11b., 260b.; 3 Reeve,Eng. Law, 198; Exton, 24, etc., 38. And the learnedSelden has shown considerable evidence of its jur-idical authority in the reign of Henry the First. Seld.de Dom. Maris, lib. 2, c. 24, p. 209.

What was originally the nature and extent ofthe jurisdiction of the admiralty cannot now withabsolute certainty be known. It is involved in thesame obscurity, which rests on the original jurisdic-tion of the courts of common law. It seems,however, that, at a very early period, the admiraltyhad cognizance of all questions of prize; of tortsand offences, as well in ports within the ebb andflow of the tide, as upon the high seas; of maritimecontracts and navigation; and also the peculiar cus-tody of the rights, prerogatives, and authorities ofthe crown, in the British seas. The forms of its pro-ceedings were borrowed from the civil law (Zouch,88; Seld. ad Fletam, c. 8, § 4; Co. Litt. 11b), andthe rules by which it was governed, were, as isevery where avowed, the ancient laws, customs andusages of the seas. 3 Reeves, Eng. Law, 198; Exton,33; Seld. ad Fletam, c. 8, §§ 5, 6; Vin. Abr. p. 506,pl. 8. In fact, there can scarcely be the slightestdoubt, that the admiralty of England, and the mari-time courts of all the other powers of Europe, wereformed upon one and the same common model; andthat their jurisdiction included the same subjects, asthe consular courts of the Mediterranean. Exton, 44,46, 49, 53; 1 Valin, Comm. 1, 120; Roccus, Asse-cur. note 80; Cleirac, Juris. de la Marine, 191;Zouch, 87. These courts are described in the Con-solato del Mare, as having jurisdiction of ‘all con-troversies respecting freight; of damages to goodsshipped; of the wages of mariners; of the partitionof ships by public sale; of jettison; of commissionsor bailments to masters and mariners; of debts con-






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tracted by the master for the use and necessities ofhis ship; of agreements made by the master withmerchants, or by merchants with the master; ofgoods found on the high seas or on the shore; of thearmament or equipment of ships, gallies or othervessels; and generally of all other contracts de-clared in the customs of the sea. Compare Consol-ato del Mare (Ed. Casaregis) c. 22; Cleirac, Us etCout. Jurisd. de la Marine, art. 1, note 3, 192; Con-sulat de la Mer, par Boucher, c. 22; Zouch, 90; 2Brown, Adm. 30.

In support of these observations, it may not beunfit to trace the early history of the jurisdiction ofthe admiralty in some of the more ancient records,which have escaped the ravages of time.

The Black Book of the Admiralty asserts, thatin the reign of Henry the First, and in the time ofmany kings before (‘en temps du premier royHenry, et en temps de plusieurs rois devant’), whenany man was indicted of felony, the admiral or hislieutenant delivered a capias to the admiral (themarshal) of the court, or the sheriff, to arrest him;and a very particular account is given of the mannerof proceeding in case of his avoidance. See Clerke,Prax.; Rough. art. 122, note C 16, 17; Exton, 32;Seld. de Dom. Maris. lib. 2, c. 24, p. 209. Hence itsexistence and criminal jurisdiction may be inferredat that early period. The celebrated code of mari-time laws, commonly called the Laws of Oleron,were compiled by Richard the First, as has beenalready observed, on his return from the Holy Land.Besides these, he promulgated several maritime or-dinances at Grimsby for the government of the ad-miralty. Prynne on 4 Inst. 108; Exton, 26, 27, 182;Clerke, Prax. 113, C 18. In the reign of King John,several ordinances were made with reference to theadmiralty; particularly the ordinance directing theadmiralty to make inquisition of all persons unlaw-fully taking customs, or the fees called anchorage(Exton, 28, 29; Rough. art. 35, 36, note C 26;Clerke, Prax. 139, 140), and the famous ordinancefor striking sail (or veiling the bonnet), in token ofthe superiority of the British sovereign over the ad-jacent seas. Clerke, Prax. 166; Burrough, Sover-eignty, etc.; Seld. de Dom. lib. 2, c. 26, p. 215. In

the reign of Henry the Third, the Laws of Oleronwere ratified and republished. 1 Bib. Legum citesPrynne on 4 Inst. 108; 2 Brown, Adm. 39, 40. Inthe reign of Edward the First, there was a memor-able ordinance prohibiting the courts having fran-chises, &c. from taking cognizance of any plea, ex-ceeding 40 shillings sterling, touching merchants ormariners, as well by deed, as by charter of ships,obligations and other transactions; and further de-claring, that every contract between merchant andmerchant, or merchant and mariner beyond sea, orwithin the flood mark, shall be tried before the ad-miral, and not elsewhere.FN4

FN4‘Ordonne estoit a Hastynges par leRoy Edw. le premier et ses seigneurs, quecomment

*420 The immemorial jurisdiction of the ad-miralty is still more emphatically asserted, as to allcauses arising upon the British seas, in the record inthe tower entitled, ‘De superioritate maris Angliaeet jure officii Admiralitatis in eadem,’ in the 26thyear of the same reign.FN5

FN5 Burrough, Sovereign, 8; Godolph. 28;4 Inst. 142; Prynne on 4 Inst. 109; Seldende Dom. lib. 2, cc. 19, 24, 28; Exton, 58.After reciting the immemorial right of theKing of England to the sovereignty of theBritish seas, and the right to make laws toregulate navigation, and to keep the peace,in those seas, it proceeds: ‘Et A de B., ad-miral de la dit mier, deputey par le royd'Engliterre et admirals par mesme celuiroy d'Engliterre et ses ancestors, jades roysd'Engliterre, eussent est en paiseable pos-session de la dit sovereign garde, ove laconisance et justice et tous les aultres ap-purtenances avantditz, &c. especialmentpur empechement metre et justice faire,surete prendre de la pees de tout manere degentz usantz armes en la dit mier ou men-ans niefs aultrement appareilles ou garnies,que n'appartient au nief de marchants, et enaultres points, en queux homme poit avoirreasonable cause de suspicion vers eux de



robbery on des aultres mesfaitz.’

But it is principally in the records of the reignof Edward the Third, that our attention should beclosely drawn to the nature and extent of the juris-diction of the admiralty; for to this period has thestatute of 13 Rich. II., explicitly referred. Edwardthe Third gave to the laws of Oleron their final con-firmation (2 Brown, Adm. 40), and called a solemnconvocation of all the judges of the realm, amongother things to retain and preserve the ancient su-periority of the British seas, and the official rightsof the admiralty.FN6

FN6 The article stands thus: ‘Item, adfinem quod resumatur et continuetur, adsubditorum prosecutionem, forma pro-cedendi quondam ordinata et inchoata peravum domini nostri regis (Evardum I.) etejus consilium, ad retinendum et conser-vandum antiquam superioritatem marisAngliae et jus officii admirallatus in eo-dem, quoad corrigendum, interpretandum,declarandum, et conservandum, leges etstatuta per ejus antecessores, Angliaereges, dudum ordinata ad conservandumpacem et justiciam inter omnes gentes na-tionis cujuscunque per mare Angliae tran-seuntes, et ad cognoscendum super omni-bus in contrarium attemptatis in eadem, etad puniendum delinquentes, et damna pa-cis satisfaciendum; quae quidem leges etstatuta per Dominum Richardum, quondamregem Angliae, in reditu suo a terra sanctacorrecta fuerunt, interpretata, declarata etin insula Oleron publicata, et nominata inlingua Gallicana ‘Le Roy Ol-eroun.”Burrough, Sovereignty, 10; Seldende Dom. lib. 2, cc. 32, 24; Godolph. 143; 4Inst. 114; Exton, 25, 61.

But the most venerable monument is the BlackBook of the admiralty itself, which, though it con-tains considerable additions of later periods, is gen-erally agreed to have been originally compiled inthis reign. Exton, cc. 13, 14, p. 185, 191; Prynne on4 Inst. 106, 115; Preface to Roughton's Articles,

Clerke, Prax. 92. This book has always beendeemed of the highest authority in matters concern-ing the admiralty. Besides the Laws of Oleron atlarge, it contains an ample view of the crimes andoffences cognizable in the admiralty, and also occa-sional ordinances and commentaries upon mattersof prize and maritime torts, injuries and contracts.See Roughton's articles in Clerke, Prax. 99, etc.,163, etc. Among other things, it prohibits the suingof merchants, mariners and other persons at thecommon law for any thing appertaining to the mar-ine law of ancient right.FN7 In respect to torts andinjuries, the jurisdiction is most explicitly asserted,as well in ports within the ebb and flow of the tide,as upon the high seas, as will appear from theslightest inspection of the articles of the admiralty,and particularly the inquisition at Queensboroughin this very reign-49 Edw. III. See Rough. art. 7, D26; Id. art. 8, D 27; Id. art. 12, D 87; Id. art. 21, D65; Id. art. 22, D 66; Id. art. 25, D 45; Id. art. 26, D47; Id. art. 29, D 50; Clerke, Prax. 110, 111, 116,125, 126, 129, 130, 134; Exton, 172. And the bind-ing authority of the Laws of Oleron and the cus-toms of the sea in the court of admiralty is severaltimes alluded to and enforced in the same inquisi-tion.FN8 Indeed, of such high repute were theselaws, that by an ancient edict of France, it was de-clared, that the admiralty ought to do justice *421according to the rights, judgments and usages ofOleron. Zouch, 88.

FN7‘Soit enquis de tous ceulx qui em-pledent aucuns merchant, mariner, ou autrehomme quelconque a la commune ley de laterre appartenant a ley marine d'aunciendroit. Soit enquis de tous juges, quitiennent devant ceulx aucuns plees appar-tenants par droiture a la Court deL'Admiraltie.’Or as Roughton renders it,‘Inquiratur de hiis, qui implacitant aliquos,alibi quam in curia admiralitatis, de his ne-gotiis seu causis, quae ad forum admiralit-atis pertinere noscuntur.’Rough. art. 18,and note C 35, D 51, D 52; Clerke, Prax.120; Rough. art. 38; Clerke, Prax. 143.

FN8‘Soit enquis de tous mariners, qui



mettent en violence main, ou battent leurmaistres encontre les loys de la mer et stat-uts d'Oleron sur ce faitz.’Rough. art. 25,note D 45; Clerke, Prax. 129; Rough. art.26, D 16; Clerke, Prax. 131.

As to maritime contracts, the jurisdiction of theadmiralty is expressly affirmed in the same bookover all such contracts made abroad and within theflood mark. Rough. art. 38, c. 21; Clerke, Prax.143, 144. And as to all causes, it is commanded thatthe admiralty shall do right and justice summarilyand by plain process according to the marine lawand the ancient customs of the sea.FN9 And here itmay be proper to guard against the mistake, that theparticulars enumerated in these various regulationsand ordinances comprehend and limit the whole ex-tent of the jurisdiction of the admiralty. They can-not legally be considered in any other light, than asoccasional directions to a court already existingwith general powers, to clear away a doubt or to en-force more exactly an observance of an existingright or duty.

FN9‘En primes pour faire droit et duejustice a toutes parties, si bien poursuyantscomme defendants, en la Cour de‘l'Admiraltie, est de faire sommaire etplain process selon loy marisne et an-ciennes coustumes de la mer.’Clerke, Prax.160, D 71.

The commissions too of the judges of the ad-miralty in this and the preceding reigns evince avery extensive cognizance over maritime transac-tions, as well in ports as on the high seas. The ad-miral is frequently styled therein, in reference to hisjudicial authority, ‘custos maritimarum partium,’‘custos portuum cum costra maris,’ ‘custos mar-inae,’ ‘custos portuum et marinae,’ ‘capitaneum etadmirallum flotae marinae nostrae omnium mari-um, et tamquamque portuum, &c. quam aliorumportuum et locorum per costeram maris' (Exton, 15,70, 76; Seld. de Dom. lib. 2, c. 14); and finally (asin the commission of Robert de Herle in 35 Edw.III. as having ‘plenam, tenore patentium, potest-atem audiendi querelas omnium et singulorum de

hiis quae officium admiralli tangunt et cognoscendiin causis maritimis, &c.'FN10

FN10 The words of this commission are:‘Dantes ei plenam, tenore patentium, pot-estatem audiendi querelas omnium et sin-gulorum de hiis, quae officium admirallitangunt, et cognoscendi in causis mari-timis, et justitiam faciendi, et excessus cor-rigendi, et delinquentes juxta eorum de-merita castigandi, puniendi, incarcerandi,et incarceratos, qui deliberandi fuerint, de-liberandi, et omnia alia, quae ad officiumadmiralli pertinent, faciendi, &c.,&c.’Exton, 3, 294.

Such are some of the relics of antiquity, whichare to be found in the learned treatises on the ad-miralty jurisdiction. From a historical review ofthem; from the consideration that in all other statesin Europe, maritime courts were about the sameperiod established, possessing the same jurisdic-tion, viz. over all maritime torts, offences, and con-tracts, proceeding by the same forms, viz. the formsof the civil law, and regulated by the same prin-ciples, viz. the ancient customs of the sea; from theconsideration, that commercial convenience, andeven necessity, at the same period, required a courtof as extensive jurisdiction in England, and the ac-knowledged fact, that from its earliest traces the ad-miralty of England is found exercising a very ex-tensive maritime authority, governed by the rulesand forms of proceeding of the civil law, and,where statutes were silent, by the usages of the sea;from all these considerations it has been inferred,and, in my judgment, with irresistible force, that itsjurisdiction was coeval and co-extensive with thatof the other foreign maritime courts. At all events,it cannot be denied upon these authorities, that be-fore and in the reign of Edward the Third the ad-miralty exercised jurisdiction, 1. Over matters ofprize and its incidents. 2. Over torts, injuries, andoffences, in ports within the ebb and flow of thetide, on the British seas and on the high seas. 3.Over contracts and other matters regulated andprovided for by the Laws of Oleron and other spe-cial ordinances, and 4. (as the commission of



Robert de Herle shows) Over maritime causes ingeneral. And even Lord Coke admits, that maritimecauses include causes arising upon the sea shoreand in ports; for he declares ‘maritima est super lit-tus or in portu maris.’Hawkeridge's Case, 12 Coke,129. That this jurisdiction was, from its original es-tablishment, exclusive of the courts of common lawin all cases, may perhaps admit of doubt; for it ap-pears from some early cases, on which we shallhave hereafter occasion to comment, that the courtsof common law did, in some few instances, assumeauthority to adjudicate upon cases arising upon theseas. But that there is any authority previous to the13 Rich. II., which, properly considered, impeachesthe jurisdiction of the admiralty, as here asserted,may be with some confidence denied.

Let us now proceed to consider such cases, ashave been supposed to impugn or weaken the con-clusions, which have been attempted to be drawnthus far in favor of the admiralty. And here we mustrest altogether upon the citations of Lord Coke inhis view of the admiralty jurisdiction in his fourthInstitute. 4 Inst. 134. It is well known with whatzeal, ability, and diligence, he endeavored to breakdown the court of chancery, as well as the admir-alty. It would have been fortunate for the maritimeworld, if his labors in the latter case had been asunsuccessful, as in the former. There are many per-sons, who are dismayed at the danger and difficultyof encountering any opinion supported by the au-thority of Lord Coke. To quiet the apprehensions ofsuch persons, it may not be unfit to declare, in thelanguage of Mr. Justice Buller, that ‘with respect towhat is said relative to the admiralty jurisdiction in4 Inst. 135, that part of Lord Coke's work has beenalways received with great caution, and frequently*422 contradicted. He seems to have entertainednot only a jealousy of, but an enmity against, thatjurisdiction.’Smart v. Wolffe, 3 Term R. 348.

The first citation of Lord Coke is of two writsin the register (Fitzh. Nat. Brev. 87, 88), one fortaking and carrying away a ship found at H. and thechattels on board of the same ship;FN11 the otherfor drawing wine out of a tun put on board a ship atS. to be brought from thence to S. and filling up the

tun with salt water.FN12 It is difficult to perceivein what manner these writs can touch the admiraltyjurisdiction, for the torts are not even in the writssupposed to be upon the high seas, or within theebb and flow of the tide.

FN11 S. W. 50, Hen. III, cited in Selden onFortescue de Laud, c. 32, note e; RegisterBrev. 95.‘Quare vi et armis quandamnavem ipsius A. precii decem librarumapud H. inventam cepit et abduxit, et bonaet catalla sua ad valentiam viginti librarumin eadem navi inventa cepit et asportavit.’

FN12 Register Brev. 95b.‘Quare vi etarmis 60 lagenas de quodam dolio vini ip-sius W. precii quinque marcarum in navipredicti I. apud S. posito, abinde usque S.ducendo, extraxit, et dolium illud aquamaritima implevit, per quod &c.’

The next citation is a writ in the register (Fitzh.Nat. Brev. 114), which is thus described by Fitzher-bert.‘If an English merchant be robbed and hisgoods be taken from him, beyond seas, by merchantstrangers, and the English merchant sue beyond seato have justice and restitution made thereof, andcannot obtain it, and this matter be testified untothe king in his chancery by divers credible persons;now, upon this testimony, if the merchant strangerscome into any place within the realm of Englandwith their goods, then the English merchant shallhave a writ out of chancery directed unto the mayoror bailiffs, where such merchant strangers are withtheir goods, to arrest them and their goods, and tokeep them under arrest until they have satisfied theparty his damages, which he hath sustained by reas-on of their misdoing.’-‘But it seemth the Englishmerchant shall not have such writ for any debt dueto him from a merchant stranger upon a contractmade beyond seas, if the merchant do come intoEngland or his goods; quaere tamen hereof.’-In theregister itself (page 129) the tort is thus alleged‘quodcum ipse nuper apud C. in partibus de Spiniain villa de C. causa mercandisandi moram traxisset,et bona et catalla ad valentiam centum librarumemisset, J. et T. et alii malefactores dictae villae



mercatores de dictis partibus de S. prefatum S. apuddictam villam de S. vi et armis ceperunt et im-prisonaverunt, et catall sua predicta ab eo abstuler-unt, et alia, &c. ei intulerunt, contra legem etrationem in ipsius S. damnum non modicum, et de-pauperationem manifestam.’It is manifest that thiswrit merely respects a trespass to the person andgoods of an English merchant committed in the ter-ritory of a foreign sovereign; a subject, over whichthe admiralty never claimed, or exercised any judi-cial authority. And perhaps it may be inferred fromthe language of Fitzherbert, that the common lawcourts did not originally take cognizance of con-tracts between merchants in foreign countries; andwe shall in fact find, that the admiralty did claim toexercise jurisdiction over them at a very early peri-od. Clerke, Prax. 143, 144, C. 21.

Another citation is from Fitzherbert's Abridg-ment, Corone, 399, in 8 Edw. II.; Staund. Pl. Cor.lib. 1, p. 51, 57. It stands thus.‘Nota per StantonJustice, que ceo nest pas sauce de mere ou homepuit veier ceo que est fait bel un part del ewe et delautre, come a veier de l'un terretanque a l'autre, quele coroner viendra en ceo cas et fera son office,auxi comme aventure a vyent en un brace del mere,la ou home puit veier de l'un parte tanque a l'autre,del aventure, que en cel lieu avient, puit paiis averconusance.’The opinion here maintained is, that itis not a creek of the sea, where a person may seewhat is done from both shores; and that in suchplace the coroner may exercise his official jurisdic-tion, as he well may in an arm of the sea, where anaccident happens, which may be seen from bothshores, for in such case the pais may have cogniz-ance thereof. In respect to the first part of this opin-ion, it cannot be supported; for a creek, or, (what isthe same thing) an arm of the sea, is where, and asfar as, the sea flows and reflows, without any refer-ence to the distance of the enclosing shores. 22 As-siz. 93; Hale, De Portubus Maris, c. 4. And admit-ting, that the opinion of a single judge, (on what oc-casion we know not,) is to be considered as settlingthe law, the residue of the opinion proves no more,than that, in those ancient times, in such creeks ofthe sea the coroner had jurisdiction. Yet from thisStaundford, and after him Lord Coke, infer that the

admiralty had no jurisdiction in those places, butonly upon the high seas. Staundf. lib. 2, p. 51. Thisinference is inadmissible, since there is very strongevidence, that, at and before the same period, theadmiralty exercised authority in the creeks, armsand ports, of the sea; and so the jurisdiction couldat most be only concurrent. Lord Hale explicitly as-serts, that in ancient times the common law exer-cised jurisdiction, concurrent with the admiralty,over crimes committed even upon the narrow seasor coasts, though it were high sea; and that this jur-isdiction did not cease until about the 38 Edw. III.;and, among other cases in support of his opinion, hecites this very case in 8 Edw. II., and infers from it,that in the present times, as well the coroner of thecounty, as of the admiral, may take inquisitionsupon deaths happening in great rivers, namely,arms of the sea, that flow and reflow, *423 beneaththe first bridges (2 Hale, P. C. 12, 13, note a, 14,15, 16); and that, notwithstanding the statute of 28Hen. VIII. c. 15, the courts of common law havestill a concurrent jurisdiction of all felonies com-mitted in a navigable arm of the sea (2 Hale, P. C.18. And see Zouch. 114; 40 Assiz. 25; Rex v. Sole-guard, Andr. 231). Admitting then, that this case isgood proof of the jurisdiction of the common law, itis not shown to be exclusive of that of the admir-alty, but is perfectly consistent with it.

The next case is 43 Edw. III. (cited in Dyer,326), which decides no more than, that marsh land,bordering on the sea, over which the sea ebbs andflows, may be parcel of a manor; from which LordCoke infers, that it must be parcel of the county.Assuming this inference to be correct, it does notfollow, that the jurisdiction of the admiralty is ex-cluded; for in Sir Henry Constable's Case, 5 Coke,105b, 107, it was clearly held, that the soil, onwhich the tide ebbs and flows, may be parcel of amanor, and yet that the common law and the admir-alty have there a divided empire, the former whenthe tide ebbs, and the latter when it flows.

The next case is 5 Edw. III. p. 3 (Id.Fitzh. Abr.‘Replevin’ 41). It was a replevin for goods taken inthe vill of W.; the defendant justified, that he tookthem, as wreck of the sea, by virtue of a franchise



of wreck appendant to his manor; and the wholecase turned upon a mere point of pleading. There isnothing in it touching the admiralty; and the onlypossible deduction from it is, that a plea of wreckof the sea was sustained in a court of common law;but nothing can thence be argued, that this was anexclusive jurisdiction. S. P. in 37 & 38 Hen. III.,cited Fortes. de Laud. c. 32; Selden's note e.

The next case (43 Edw. III.) stands thus inFitzherbert's Abridgment (Conusance, 36):‘Trespass fait en Kingston sur Hull, port pur A.d'un nyeff prist en le ew de Hull versus certen per-sons. Le maire et bayles de Hull demandent co-nusance par chartre le roye a eux grant, quod civesnec burgesses de Hull non implacitentur alibi dealiquibus transgressionibus, conventionibus, con-tractis infra burgum, quam infra burgum; et fuitchallenge eo que l'un partie fuit estranger, et nientburgess, et auximent semble que il n'est enclose enceux parolx que ils puissont tener plees. Finchdondixit sic; et pur ceo le conusans fuit graunt,’ &c. Itwould seem from the reasons assigned by Finch-don, that the conusance ought to have been, and infact was, denied; and that the word ‘non’ was omit-ted in the obridgment by mistake. But Lord Cokeasserts that it was granted, and that this ‘proveththat the haven of Hull, where the ship did ride, wasinfra burgum de Hull, and by consequence infracorpus comitatus, and determinable by the commonlaw and not in the admiral court.’The case author-ises no such conclusion. It does not appear, that theplace where the ship was taken, was within the ebband flow of the tide, but only that it was ‘on the wa-ter of Hull;’ much less does it appear, that anypoint, as to the right of the admiralty to entertainsuits for acts done in ports, was even glanced at, orput into controversy. The case turned wholly on theclaim of the corporation of Hull to withdraw suitsarising within its franchises from the courts of com-mon law. For aught that appears, Hull might havehad the franchise to hold pleas of things done ontide waters, as it is unquestionable the corporationof Ipswich had. Exton, 138, 142. And even if theclaim of conusance by Hull were well founded, itdoes not follow that a concurrent jurisdiction mightnot still remain in the admiralty over all things

within its general authority. See Rex v. Soleguard,Andr. 331.

The next case is 48 Edw. III. p. 3, in which itwould be supposed from Lord Coke's manner ofquoting, that it was adjudged ‘if a mariner make acovenant with me to serve me in a ship upon thesea, yet, if his wages be not paid, they shall be de-manded in this court by the common law, and notby the law of mariners,'FN13 or the marine law. Infact, on examining the year book, it is incontestablethat this was the mere argument of Tankard, ascounsel in the cause, and it was not in any mannerrecognised by the court. Nor did the case in judg-ment require any such observation. It was an actionbrought, among other things, for a sum due on a re-tainer to serve in the war in France; and the excep-tion taken was, that this was triable before the courtof the constable and marshal, being of a service inwar out of the realm. Finchdon, however, held, thatthe courts of common law had cognizance of thecause. It is manifest upon this statement, that noth-ing can be gathered from this case in favor of LordCoke's favorite position. But there is a pretty strongimplication in the argument, that mariners' wageswere, at that time, claimed as within the cognizanceof the maritime court. And Lord Holt himself hasdeclared (Brown v. Benn, 2 Ld. Raym. 1247) thatthe jurisdiction of the admiralty, in case of mar-iners' wages, was a very ancient concurrent juris-diction, as ancient as the constitution itself (S. P.,Queen v. London, 6 Mod. 205). And it should neverbe forgotten, that this dictum of counsel, frail anduntenable as it is, is the only authority previous tothe 13th of Richard II., which the diligence of itsmost strenuous foe has been able to adduce, to takefrom the admiralty its jurisdiction over maritimecontracts. All the other cases apply to the jurisdic-tion over torts and injuries in ports or in arms of thesea.

FN13‘Et ne pur la ley de mariner.’

But the case, which is mainly relied on againstthis jurisdiction, is that in the time of Edward theFirst, as cited in Fitzherbert's Abridgment (Avowry,192). It stands thus, *424 ‘Replevin de son nyeff



prise en le cost de Scarburgh en le mere, etdillonques fist carier en le conte de N. et la le de-tient, &c. Muttford: Il se pleint de prise en le costde S., que n'est ville ni liew certen par que pais puitestre prise, quare le cost dure 4 leuks, et auxi dechose fait en le mere cest court ne puit aver co-nusans, quare certen judgement est done asmayners. Bery: Le roy voit que le pease soit cy auxibien gard en le mere, come en le terre, et noustrovomus que vous estes venu per due proces, et neveiomus riens pur que ne deves respondre.Muttford: Il suppos le prise estre fait en la countede E. et il port son breve al vicecomte de M.[N.]d'aver delivere, et issint suppos le distress priseet amesne de un counte en auter, par que il ad brevedon per le statut en ce cas. Howard: Le statut parledes avers amesnes de un counte en auter, et ne desche'ux. Muttford: Le statut parle generalment dedistress, que comprehend de ambideux. Howard:Jeo ne crey que je usse eu sur le statut. Muttford:Donques usses eu le vi et armis, car ceo chose en-countre le pese et chescun que doit distrein, doit ledistres poser en ceo liew ou la deliverance puitestre fait al comen ley. Howard pria conged'enquerer meliour brief.’This is the whole case,from which Lord Coke draws (4 Inst. 140, and 12Coke, 79) the following extraordinary conclusions.1. That it is called the sea, which is not within anycounty from whence a jury may come. 2. That thesea (being not within any county) is not within thejurisdiction of the court of common pleas, but be-longs to the admiral jurisdiction. 3. That when theship came within the river, then it is confessed to bewithin the county of Northumberland. 4. That whena taking is partly on the sea, and partly in a river,the common law shall have jurisdiction. 5. And (12Coke, 79) that if a thing be done upon the sea horsdel county, the party may plead to the jurisdictionof the court.

As to these conclusions, many remarks mightbe made. It is true, that Muttford, of counsel for thedefendant, did assert that the courts of common lawhad no jurisdiction of things done upon the sea, forthat a certain judgment,-which Lord Coke interpretsas meaning the jurisdiction of the admiralty (12Coke, 79),-is given among or to mariners. But

Beryford, C. J., utterly denied it, and so far from al-lowing the claim of the admiralty to jurisdiction onthe sea, or even admitting its legal existence, be ex-pressly declared, that the king willed, that the peaceshould be kept, as well on the sea as on the land,and that, as the party was by due process before thecourt, he should be compelled to answer. Of whatwas he to answer? Of an alleged trespass upon thesea on the coast of Scarburgh. So that there is notany pretence that the injury arose in any port, orwithin any county of the realm. Nor is there any in-timation by the court, that the taking, for which thesuit was brought, was within any county, fromwhich a jury might come; nor that the jurisdictionwas sustained because, after the taking upon thesea, the ship was brought into port; nor that the seawas without the body of any county. On the con-trary, the court expressly claims jurisdiction to keepthe peace upon the sea, as well as upon the land,and overrule the objection of the counsel, as to thenecessity of the act's being done in some placeupon land, from whence a jury might come. So far,then, from its being true, as Lord Coke boldly as-serts (12 Coke, 79), that ‘all these points are dir-ectly, without any strain, collected out of the saidbook,’ it may be safely affirmed, that not one ofthem derives any support or countenance from thereport; but, as far as the case decides any thing, it isagainst them. And finally the case went off againstthe plaintiff upon his own prayer for a better writ.Nor is this all. The same case is more fully and ex-actly reported by Selden from a manuscript YearBook in his own possession, from which it is hererecited verbatim (Selden on Fortescue, c. 32, notee): ‘William Crake de Hotham fuit sommon a re-spondre a Robert de Beufs, de play pour que il avoitprise une sune nief, pris de £>>>>>>40, en le merjuste la costere de Scardburgh, et de yleke le amenea Hotham en le counte de Norff. Muttford: Del horequ'il avute counte de une prise fete en le mer queest hors del conte, issi que si pais se join fists, il nesavereint a quel visconte mander pur fere venerpays, e demand judgment, si ceyns pussont de cesconuster. Ed’ autre part, il ly sont assigne Admirallde par le roy sur le mer, a oyer et terminer lespleynts de chose fait en mer, et n'entendons point,



que vous volys a eux tolyr jurisdiction. Bery: Nousavons poer general pur my tut Engleterre mes delpoer des Admiralls, dont vous parles, ne savons ri-en, ne rien de nostre poer's eux volumus assigner, siceo ne seist per commandement le Roy, de queyvous ne monstres rien, &c. Muttf.: Sire, le luy, ouils dient la neef este pris, n'est in nulle visne de que,&c. Howard: Il est issint visne, que si une hommeoccist un auter la il serra pris et amesn al terre epende, aussi ben come pur fet fet sur le terre. Met-ingham: Nous vous dions que nous avons ausi benpoer de conisans de fet fet en mer come sur terre,dont agard que vous respondes ouster.' This is un-doubtedly an authentic report, and completely con-firms the observations already made upon LordCoke's extraordinary commentary. It is here expli-citly stated by counsel, that the admiralty had juris-diction to hear and determine all plaints of thingsdone upon the seas; and that the supposed takingwas upon the sea without any county. But Beryford,C. J., in answer said, ‘We have general jurisdictionthroughout all England; as to the power of the ad-mirals, of whom you speak, we know nothing, andwe will assign to them none of our power, unless bycommand of the king, of which you *425 shownothing.’-And upon the argument's being againpressed, that the taking was not in any ville orneighborhood, from which a jury might come, Met-ingham, J., declared, ‘we again say, that we havepower to take cognizance of a thing done as wellupon the sea, as upon the land; and we award youto answer over.’It is clear, therefore, that the courtdid claim a common law jurisdiction over the sea atthis time. And the learned Selden (who is not an ad-vocate for the admiralty in general) accordingly re-marks, ‘It seems to me by this, that in those timesthe common law had cognizance of things doneupon the British sea, however afterwards it kept itslimits infra corpus comitatus, leaving the sea to theadmiralty;’ and in his treatise upon the dominion ofthe sea, he deliberately asserts the same doctrine.Selden de Dom. mar. lib. 2, c. 14, p. 155; Id. c. 24,p. 209. In corroboration of this doctrine, there is inMolloy (book 2, c. 3, § 16, p. 224) a copy of a re-cord in the tower of 24 Edw. III., in which an actionwas brought at common law for an embezzlement

on board of a ship on the high seas (‘in mari juxtaBritanniam’) and the plaintiff recoveredjudgment.FN14

FN14 See, also, Spelman, Reliq. 217; 40Assizes, 25; Zouch, 114; 2 Hale, P. C. 17;Sea Laws Treatise Dom. Sea, 145; and Ex-ton, 121, etc., where he comments verysatisfactorily on this very case.

Another case is 7 Rich. II., cited from Stath-am's Abridgment. ‘Transgressio’ pl. 54. It is thussummarily stated, ‘En trans d'un neife et certenmarchandises pris; Vavasour, Nous le prisomus enle haut mere ovesque les Normandes qu'eux sontennemyes le Roy, judgment si actionem. Markham,Ceo amount a nient pluis que de riens coupable.Charleton, ceo ple est bone, per quod respondes aceo.’If this case prove any thing, it proves, that acapture on the high seas from the enemy may wellbe pleaded as a special plea and bar to an action oftrespass for the capture; and that a court of commonlaw will sustain such a plea. If it be supposed to af-firm the jurisdiction of such a court over matters ofprize, it is not law; if to deny it, it has nothing to dowith the present controversy.

These are all the cases adduced by Lord Cokedown to the 13 Rich. II., to disprove the jurisdic-tion, which has been asserted in favor of the admir-alty. Unless I am very much mistaken, they entirelyfail of their intended purpose; and leave the currentof ancient authority flowing with an uniform and ir-resistible force in its favor.

Such then being the ancient or original jurisdic-tion of the admiralty, it will be in the next placeproper to consider, in what respects it has beenaltered by statutes and decisions made since theperiod, of which we have been speaking.

The statute 13 Rich. II. c. 5, enacts, ‘that theadmirals and their deputies shall not maddle hence-forth of any thing done within the realm, but onlyof a thing done upon the sea, according as it hathbeen duly used in the time of the noble King Ed-ward [III.], grandfather of our lord the king thatnow is.’FN15 The statute 15 Rich. II. c. 3, enacts



‘that of all manner of contracts, pleas andquerelesFN16 (complaints or controversies) and ofall other things done or arisingFN17 within thebodies of counties, as well by land as by water; andalso of wreck of the sea, the admiral's court shallhave no manner of cognizance, power nor jurisdic-tion; but all such manner of contracts, pleas andquereles, and all other things rising within the bod-ies of counties, as well by land as by water, asafore, and also wreck of the sea, shall be tried, de-termined, discussed and remedied, by the laws ofthe land, and not before or by the admiral, nor hislieutenant, in any wise. Nevertheless of the death ofa man, and of a maihem done in great ships, beinghovering in the main stream of great rivers, only,beneath the bridges FN18 of the same rivers nigh tothe sea, and in none other places of the same rivers,the admiral shall have cognizance; and also to ar-rest ships in the great flotes for the great voyages ofthe king and of the realm; saving always to the kingall manner of forfeitures and profits thereof com-ing; and he shall also have jurisdiction upon thesaid flotes during the said voyages, only saving al-ways to the lords, cities and boroughs, their liber-ties and franchises.’The statute 2 Hen. IV., c. 11,provides, that the statute 13 Rich. II. be firmlyholden and kept, and put in due execution; and that,as touching a pain to be set upon the admiral or hislieutenant, that the statute and the common law beholden against them; and and that he, that feelethhimself grieved against the form of the said statute,shall have his action grounded upon the caseagainst him that doth so pursue in the admiral'scourt, and recover his double damages against thepursuant, and the same pursuant shall incur the painof £10 to the king for the pursuit so made, if he beattained.

FN15‘Que les admiralx et leur deputees nesoi mellent desorenavant de nulle chosefait deinz le Roialme, mais soulement dechose fait sur le meer selonc ceo q'ad esteduement use el temps du noble Roy Ed-ward aiel nostre seigneur le roy q'or est.’

FN16 ‘Contractees, plees et quereles.’

FN17 ‘Faitz ou sourdantz.’ Exton, omits‘on.’

FN18 ‘Pountz.’

It was upon these statutes, that the controver-sies respecting the admiralty were so zealously andobstinately maintained during more than two cen-turies. It is not my intention to examine how far thestatutes themselves or the preambles thereof, or thepetitions, on which they were founded, have beenfairly published from the records of the tower.FN19

It will be sufficient for my *426 purpose to show,what have been the constructions respectivelyurged by the advocates and the opponents of the ad-miralty, and to consider how far the respectiveopinions are reconcilable with themselves or withsound principles. In the construction of these stat-utes, the admiralty has uniformly and without hesit-ation maintained, that they never were intended toabridge or restrain the rightful jurisdiction of thatcourt; that they meant to take away any pretence ofentertaining suits upon contracts arising whollyupon land, and referring solely to terrene affairs;and upon torts or injuries which, though arising inports, were not done within the ebb and flow of thetide; and that the language of those statutes, as wellas the manifest object thereof as stated in the pre-ambles, and in the petitions, on which they werefounded, is fully satisfied by this exposition. Sothat consistently with these statutes, the admiraltymay still exercise jurisdiction, 1. Over torts and in-juries upon the high seas and in ports within the ebband flow of the tide, and in great streams below thefirst bridges; 2. Over all maritime contracts arisingat home or abroad; 3. Over matters of prize and itsincidents. On the other hand, the courts of commonlaw have held, that the jurisdiction of the admiraltyis confined to contracts and things exclusivelymade and done upon the high seas, and to be ex-ecuted upon the high seas; that it has no jurisdictionover torts, offences or injuries, done in ports withinthe bodies of counties, notwithstanding the placesbe within the ebb and flow of the tide; nor overmaritime contracts made within the bodies ofcounties or beyond sea, although they are, in somemeasure, to be executed upon the high seas; nor of



contracts made upon the high seas to be executedupon land, or touching things not in their ownnature maritime, such as a contract for payment ofmoney; nor of any contracts, though maritime andmade at sea, which are under seal or contain unusu-al stipulations; and to complete the catalogue ofdisabilities, it has been strenuously held by LordCoke, that the admiralty is not a court of record,and of course has no power to impose a fine, andthat it cannot take a recognizance or stipulation inaid of its general jurisdiction. Thomlinson's Case,12 Coke, 104; 4 Inst. 134; Empringham's Case, 12Coke, 84; and cases cited in Cremer v. Tookley,Godb. 385, 387. So that, upon the common lawconstruction of these statutes, the admiralty, as tocontracts, is left with the idle and vain authority toenforce contracts, which are made upon the highseas to be executed upon the high seas. We shallhave occasion hereafter to notice some extraordin-ary exceptions to these doctrines. Happily for theadmiralty, it has been able to regain the right to fineand punish for contempts (12 Coke, 52; 1 Vent. 1;Styles, 17), and to take and enforce stipulations(Hook v. Moreton, 1 Ld. Raym. 397; S. P., 2 Ld.Raym. 632; Greenway v. Barker, Godb. 261). Butlet it not be imagined, that the limited powers atpresent permitted to be exercised by the admiraltyhave been obtained without a struggle. From a his-torical review of the cases in the books, it willabundantly appear, that it has been constantly indanger of losing its most useful jurisdiction. On theother hand, the courts of common law, by a silentand steady march, have gradually extended the lim-its of their own authority, until they have usurpedor acquired concurrent jurisdiction over all causes,except of prize, within the cognizance of the admir-alty.-- And even as to matters of prize, its exclusiveauthority was not finally admitted and confirmeduntil the great case of Lindo v. Rodney, Doug. 613,note, almost within our own times. It is curious in-deed to observe the progress of the pretensions ofthe courts of common law in amplifying their juris-diction. At first they disclaim all cognizance ofthings done without the bodies of the counties ofthe realm; and even over collateral matters done outof the realm, which came incidentally in question

upon issues regularly before the courts. Mayn. Y.B. 613; 18 Edw. II.; Litt. lib. 3, § 440; 21 Edw. IV.p. 36; Doct. & Stud. bk. 2, c. 2; Fortescue, c. 32, p.38; Seld. de Dom. Mar. c. 24, p. 209; and the casescited in Cremer v. Tookley, Godb. 385, 387. Theyafterwards held cognizance of contracts originatingwithin the realm, to be executed abroad; of con-tracts made abroad, to be executed within therealm; and finally, after much hesitation and doubt,by the use of a fiction, often absurd and never tra-versable, over all personal causes arising on thehigh seas or in foreign realms, without any regardto the place of their transaction or consummation.See 1 Rich. III. 4 pl. 7; 32 Hen. VI. p. 25b.; 39 Hen.VI. p. 39; 11 Hen. VII. p. 6; Fitzh. Nat. Brev. 114;Dowdale's Case, 6 Coke, 46; Co. Litt. 261b; 4 Inst.141, 142; Sir Henry Constable's Case, 5 Coke, 106;12 Coke, 79; 2 Inst. 51; 2 Brownl. & G. 16; Tuckerv. Cappes, 2 Rolle, 497; Spanish Ambassador v.Jolliff, Hob. 78; Zouch, 101, 125. Upon what prin-ciples of the ancient common law this extension ofjurisdiction can be supported, it is difficult to per-ceive. It has, however, been established by the us-age and decisions of ages; and now rests upon thesame basis, and no other, that sustains the imme-morial claims of the admiralty.

FN19 Those who have curiosity to indulgein such speculations may receive a greatdeal of information from the learned laborsof Doctor Exton. See Exton, c. 2, p. 288;Id. c. 5, p. 314; Id. c. 6, p. 331; Prynne,Animadversions, 78, 79.

It will be necessary, in the subsequent examin-ation of the doctrines which the common lawyershave asserted to support their construction of thestatutes of Richard II., to class the cases, in ordermore effectually to investigate the principles uponwhich they are founded. Before, however, we pro-ceed to that examination, it may be well to dispose*427 of some of the cases cited by Lord Coke (4Inst. 137, etc.), which cannot properly be reviewedin any other manner. Several of these may be dis-missed in a few words. The cases in 12 Hen. VI.rot. 123, 124, in 38 Hen. VIII., and in Rastell'sEntries, 23, do not appear to have been adjudged.



The same observation applies to the cases ofpremunire in 38 Hen. VI. rot. 30, and 9 Hen. VII.Indeed, these cases seem open to a more decisiveobjection, for it is impossible, consistently with anyreasonable interpretation of the statute 16 Rich. II.c. 5, or of any previous statute of premunire, to ap-ply the words to the admiralty. The language of allof them is exclusively and directly pointed againstthe usurpations of the church of Rome; and there isnot, as far as I have been able to trace, a single au-thority to support the dictum of Lord Coke, that apremunire lies against the admiralty. 3 Inst. 120.See Buckley's Case, 2 Leon. 182; Zouch, 116; Ex-ton, 261. Indeed, the extravagance of his doctrineson this subject cannot be better illustrated, than byhis pertinaciously including any excess of jurisdic-tion by the court of chancery in the same penalty;an opinion, which has been long since exploded. Inrespect to some other cases cited by him, it is im-practicable to give any answer; because they are notso stated, as to present any particular points, and noreasons are assigned for the asserted judgments.See cases cited 4 Inst. 136, etc., and Godb. 261.Even the case of Burton v. Put, Put, 6 Hen. VI. rot.303, 4 Inst. 137, on which he so strenuously relies,is the mere naked statement of a record; and tomake it at all applicable to his purpose, Lord Cokegratuitously assumes, that the taking of the shipswas actually in the haven of Bristol, within the ebband flow of the tide, whereas the record itself, asquoted by him, only states the taking to have been‘infra corpus comitatus Bristoliae, et non superaltum mare.’It would seem also, that the ships wereprizes taken out of the possession of the captors; forthe taking is alleged to be with the plaintiff's pris-oners and merchandises on board; and if so,whatever doubts might then exist, it is now clearthat the admiralty had jurisdiction. Be this as itmay, inasmuch as no reasons are given for the judg-ment, it cannot be admitted, that it warrants the in-ferences of Lord Coke. The action was founded onthe statute of 13 Rich. II., enforced by 2 Hen. IV. c.21, which prohibits the admiral to meddle, but onlyof a thing done upon the sea, according as had beendone in the reign of Edw. III. If, at that time, theadmiralty had jurisdiction over torts done on tide

waters within ports (as it seems to me incontestibleit had), there could be no ground to support the ac-tion, if the taking was on tide waters in Bristol; andthe verdict of the jury would fairly warrant an infer-ence, that the taking was not in the haven of Bristolon such waters, but in some place out of the ebband flow of the tide. Zouch, 116. It is uselesshowever to comment upon a case, the circum-stances of which are not so stated, as to raise anydistinct questions.FN20

FN20 It is not a little remarkable, that noactions founded on this statute, for an al-leged tort or trespass in ports, are cited inthe books, except this case and two others(12 Hen. VI. rot. 123, 124; 4 Inst. 138,139), which do not appear to have been ad-judged. All the other cases reported areupon contracts. Dyer, 159; Godb. 385; Cro.Jac. 603; 1 Rolle, 415; 3 Bulst. 205; 31Hen. VI. in 4 Inst. 138. The prohibitions sofrequent in the books were probably foun-ded on the statute. 15 Rich. II. c. 3.

As to the dictum in 30 Hen. VI. p. 6, respectingthe admiralty judges, that ‘the place and things ofwhich they hold plea, are out of the realm,’FN21 ifit means to speak of the realm in its largest sense, itwill include the British seas (Co. Litt. 259b; 1Rolle, Abr. 528 1. 13), and is not law; if in a morenarrow sense, as including only the bodies of thecounties, it will be fully considered hereafter.

FN21‘Le lieu et les choses dount ils tien-dront plea sont hors del roialme.’

Let us now pass to the consideration of thereasons alleged, in the construction of the statutesof Richard II., to exclude the jurisdiction of the ad-miralty in ports and havens, within the ebb andflow of the tide. As far as these reasons can begathered from the imperfect light of reports, andfrom the laborious commentaries of Lord Coke,they resolve themselves into the following proposi-tions. 1. That the body of every county includes allnavigable salt waters, ‘where one may see what isdone on the one part of the water and on the other,



as to see from one land to the other.’2. That the seais, ex vi termini, without the body of any county. 3.That all ports and havens are within the bodies ofcounties. 4. That where the common law hath juris-diction it excludes the admiralty, and the commonlaw hath jurisdiction in ports and havens.

In respect to the first proposition, it undertakesto define the boundary of a county on the sea coastat common law. The only authority in support ofthis definition is the opinion of Stanton, J., in 8Edw. II., already cited (Fitzh. Abr. Corone, 399);for neither Staundford (Staund. P. C. 51) nor LordCoke pretend to assert it upon any other ground.And even Stanton, J., does not state, that such wa-ters are within the body of a county, but only thatthe coroner has jurisdiction there; and we havealready shown, that in early times coroners andsheriffs exercised a concurrent authority, even uponthe high sea itself. Seld. de Dom. Mar. lib. 2, c. 14;Zouch, 114; Spelm. Reliq. 217; 2 Hale, P. C. 17-19.Indeed Lord Hale, in quoting this very case (DePortubus Maris, c. 4, p. 10), considers it as no abso-lute proof; for he says, ‘an arm of *428 the sea,which lies within the fauces terrae, where a manmay reasonably discern between shore and shore,is, or at least may be, within the body of acounty.’And it is undoubtedly true, that by ancientgrant or statute an arm of the sea may be within thebounds of a county; and perhaps as to all navigablerivers, where the tide ebbs and flows, since the stat-ute 15 Rich. II. c. 3, the admiralty jurisdiction maybe well held to be excluded in all places above thefirst bridges next to the sea. Exton, 127, etc.; 2Hale, P. C. 16, 17. And this would be a satisfactoryanswer to the cases cited by Lord Coke in 4 Inst.139, 141 (7 Hen. VI. pp. 22, 25;FN22 16 Hen.VIII.; 35 Hen. VIII.; and 36 Hen. VIII.). But tomaintain that this is true by the mere force of thecommon law, something more is necessary than soimperfect a case as that of 8 Edw. II., which, ifever, was adjudged at a time, when the jurisdictionof the common law was concurrent with the admir-alty upon the high seas. Zouch, 114; Seld. de Dom.Mar. lib. 2, c. 14, pp. 156, 560, 106; Andr. 231; Ex-ton, 155. Besides, in Violett v. Blake, 2 Rolle, 49,this very case of 8 Edw. II. was by the judges

denied to be law, though it was affirmed in someother cases. Owen, 122.

FN22 This is probably a wrong citation,for there is no case at all applicable to thesubject in the year book of that year.

On the other hand, in Sir Henry Constable'sCase, 5 Coke, 106, etc., it was expressly adjudged,as has been already stated, that the soil, on whichthe sea ebbs and flows, may be parcel of a manor,and that, when the sea flows and has plenitudinemmaris, the admiral shall have jurisdiction of everything done on the water, between the high and lowwater mark, by the ordinary and natural course ofthe sea; and yet, when the sea ebbs, the land maybelong to a subject, and every thing done on theland, when the sea is ebbed, shall be tried at com-mon law, for it is then parcel of the country, and in-fra corpus comitatus; and so, between the high andlow water mark, the common law and the admiraltyhave divisum imperium. It is probable that the courtmeant here to speak of land on the open sea coast;but it is very difficult to perceive, why the sameprinciple should not apply as to the tide waters inports of the sea. If land on the sea coast when thetide is cut, be to low water mark within the body ofthe county, and yet when the tide is at flood, it isdeemed within the admiralty jurisdiction, because itis then the sea, why should not the same doctrineapply to the ebb and flow of the tide in ports andhavens? Until some strong reason can be assignedfor a distinction, it would seem more conformableto law and nature to hold, that the bodies ofcounties, bounding on navigable waters, are limitedat all times by the line of the sea tide; and this is thedoctrine asserted by the admiralty. Exton, c. 3, p.80; Id. c. 4, p. 87; Id. c. 8, p. 121; Zouch, 110;Lacy's Case, Moore, 121. But see 2 East, P. C. 803;Bac. Abr. ‘Courts of Admiralty,’ A.

In the next place, it is asserted, that the sea, exvi termini, imports salt-water without the body of acounty, by the definition of the common law. Theauthority principally relied on, to support this posi-tion, is the case in Edward the First's time. Fitzh.Abr. ‘Avowry,’ 192; 4 Inst. 140; 12 Coke, 79. That



case has been already fully considered, and it isclear, that it does not, in any manner, warrant theassertion. On the other hand, Lord Hale (De Portu-bus Maris, c. 4, p. 10), in defining what the sea is,says, that it is either, that which lies within thebody of the county or without; that arm, or branchof the sea, which lies within the fauces terrae, is, orat least may be, within the body of a county; thatpart, which lies not within the body of a county, iscalled the main sea, or ocean.FN23 And his lord-ship is well warranted in this distinction of defini-tion by authority. Besides the cases already cited(in 22 Assizes, 93, and 5 Coke, 107), it was held byChoke, J., in 8 Edw. IV. 19 (and his opinion wasapproved in 5 Coke, 107), that where the sea ebbsand flows over land, when it flows, it is then parcelof the sea. And in Barber v. Wharton, 2 Ld. Raym.1452, the court held, that a contract alleged to bemade infra fluxum et refluxum maris, might be onthe high sea, and was so, if the water was at highwater mark. It should have been called, in accuracyof language, ‘the sea,’ because the ‘high sea.’ or‘main sea’ (altum mare, or le haut meer), properlybegins at low water mark. 1 Bl. Comm. 110. And sois the unquestionable distinction of the admiralty.Exton, cc. 3-5, etc. Nor is this distinction unimport-ant. The statute of 13 Rich. II. c. 5, prohibits the ad-miral to meddle, except of things done on the sea(‘sur le meer’), which includes the ebb and flow ofthe tide on the sea coast, and, as the admiralty con-tends, in ports and havens also; whereas Lord Coke,and the common lawyers, perpetually construe theexception of the statute, as though it were ‘highsea’ (altum mare, le haut meer), and assert, ‘thatwhere a place is covered over with salt water, andnot of any county or town, there it is altum mare,but where it is within the county, it is not altummare.’Leigh v. Burley, Owen, 122; Sir Henry Con-stable's Case, 5 Coke, 106; 1 Hale, P. C. 424. Infact, what is ‘the sea,’ or the ‘high sea,’ has nothingto do with the bounds of counties, but is ascertainedby high and low water mark, on the sea coast; and,by parity of reason, it should be the same in portsand havens. See *429 Godfrey's Case, Latch. 11;Hale, De Port. c. 4, p. 10.

FN23 Lord Hale manifestly considers, that

the mere circumstance, that the place iswithin the body of a county, does not ex-clude the admiralty jurisdiction, for, afterspeaking of the narrow sea, as being withinthe body of a county or without, he adds,that, in this sea, the king exercises his rightof jurisdiction ordinarily by his admiral.De Port. Mar. c. 4.

The third proposition is, that all ports andhavens are within the bodies of the counties of therealm. By ‘ports and havens,’ as the words are hereused, are meant, not merely port or haven towns,but all the tide waters included within the harborsand franchises.

This proposition is attempted to be sustained asan inference from the prior propositions, and fromthe authorities already stated (Fitzh. Abr.‘Avowry,’ 192; Id.Corone, 399; Id.Conisance, 36),which have been fully considered and answered.All the subsequent cases, from the earliest to thelatest, profess to proceed upon these authorities,feeble and inconclusive as they must be confessedto be.FN24 Indeed, some of these cases are per-fectly consistent with the claims of the admiralty(Noy, 148; Cro. Jac. 514; and 3 Term R. 315); for,since the statute 13 Rich. II. c. 5, it is admitted, thatthe admiralty has no jurisdiction in rivers, abovethe first bridges next to the sea, and the places onthe Thames, mentioned in these Reports, wouldtherefore be excluded.

FN24 Leigh v. Burley, Owen, 122; 2Brownl. & G. 37; Violet v. Blague, Cro.Jac. 514; 2 Rolle, 49; Moore, 891; Willetsv. Newport, 1 Rolle, 250; Dorrington'sCase, Moore, 916; Trinity House v. Bore-man, 2 Brownl. & G. 13; Butler v. Thayer,Id. 29; Goodwin v. Tomkins, Noy, 148;Tasker v. Gale, 1 Rolle, Abr. 533; 1, 19;Velthason v. Ormsley, 3 Term R. 315. Thedoctrine in Moore, 891, ‘that the coasts,shores, and harbors, are all out of thepower of the admiral, except in the twocases allowed specially in St. 15 Rich. II,’is not law; for it is clear, that on the sea



coasts, as far as the tide flows, the admir-alty hath jurisdiction, when the sea is full.

The fourth proposition is, that where the com-mon law hath jurisdiction, it excludes the admir-alty; and the common law hath jurisdiction in portsand havens. This proposition also rests on the sameauthorities, as the preceding. Fitzh. Abr. ‘Avowry,’192; Conisance, 36; Corone, 399. It has beenalready shown, that the common law originally hadjurisdiction on the high seas, concurrent with theadmiralty; and the exercise of that jurisdictionwould be just as conclusive against that of the ad-miralty on the high seas, as it is now assumed to bein ports and havens. It is certain, that the admiraltydid anciently take cognizance of suits in ports, and,if the common law did the same, the only reason-able inference is, that the cognizance was concur-rent. Zouch, 113; Hale, De Port. c. 7, p. 88. And itis hardly necessary to repeat, that the authorities re-lied on do not warrant any different doctrine. In-deed, it never was true, and is not now true, that thejurisdiction of the common law excluded that of theadmiralty. In cases, now manifestly within the ad-miralty jurisdiction, the common law claims a con-current cognizance, as will be abundantly shownhereafter.FN25

FN25 Since the statute 28 Hen. VIII. c. 15,the courts of common law still claim con-current jurisdiction of the offences statedin that statute, committed in creeks andarms of the sea. 2 Hale, P. C. 18-54.

In confirmation of the doctrine of the commonlaw, which excludes the admiralty from cognizanceof things done in ports and havens, the provisionsof the statute of 2 Hen. V., c. 6, and 27 Eliz. c. 11,have been cited. The statute of Elizabeth provides,that such of the offences therein mentioned, as shallbe done on the main sea, or coasts of the sea, beingno part of the body of any county of the realm, andwithout the precincts, &c. of the cinqueports, shallbe tried and determined before the lord high admir-al, and other justices, of oyer and terminer, accord-ing to the form of the statute of 28 Hen. VIII., c. 15.And so, says Lord Coke (4 Inst. 137), by the judg-

ment of the whole parliament, the jurisdiction ofthe lord admiral is wholly confined to the main sea,and coasts of the sea, being no parcel of any countyof the realm. To this remark it has been very prop-erly replied: 1. That the jurisdiction here conferredis not on the admiralty, but on the high commissioncourt. 2. That several of the offences, stated in thestatute, are such, as never were within the admiraltyjurisdiction. The statute of 2 Hen. V. c. 6., com-monly called the ‘Statute of Truces,’ gives powerand authority to the conservators of truces, appoin-ted by that act, ‘to inquire of all such treasons andoffences against the truce and safe conducts uponthe main sea (‘sur le haut meere’) out of the bodiesof the counties, and out of the franchises of the cin-queports, as the admirals of the kings of England,before this time, reasonably, after the old customand law on the sea (‘sur le meer’) used, have doneor used;' and as to similar offences committed with-in the body of the counties, the conservator, andtwo commissioners joined with him, are to make in-quisition. So far as this statute may have been ar-gued to disprove the jurisdiction of the admiralty inports, it admits of a decisive answer. 1. That thejurisdiction is special, and no more disproves theadmiralty jurisdiction in ports, than on the highseas; or than that of the common law over offencesagainst truces committed on land. 2. That, by thisstatute, the breaking of truces is declared treason,and is punishable, in the manner stated in the stat-ute, by a special court; but it cannot, by implica-tion, oust either the common law or admiralty of itsjurisdiction over any other offences. 3. That if theargument could prevail, it would oust the jurisdic-tion of the admiralty over homicides and mayhemscommitted in great rivers beneath the first bridges,which has never been pretended.

Indeed, the argument derived from the collater-al provisions of statutes, is generally unsatisfactory,and rarely conclusive; and if there be any weight inthe present one, as an exposition of the true juris-diction of the admiralty since the statutes ofRichard II., it is completely counterpoised by otherstatutes.*430 The statute 28 Hen. VIII. c. 15, givesthe high commission court (created by that act, andof which the admiral is the chief judge) jurisdiction



of all ‘treasons, felonies, murders, and confed-eracies, thereafter to be committed in or upon thesea, or in any other haven, river, creek, or place,where the admiral or admirals have, or pretended tohave power, authority, or jurisdiction.’And it hasbeen argued, that this is a complete recognition ofthe admiralty jurisdiction in all ports and havens.Lord Coke has attempted to evade the force of theargument, by assuming, that the words, ‘or pretendto have,’ &c. are to be understood between the highwater mark and low water mark; for though theland, at the reflow be within the county, yet, whenthe sea is full, the admiralty has also jurisdiction aslow as the sea flows; but, that the words extend notto any haven, river, creek, or place, that is withinthe body of the county. See Leigh v. Burley, Owen,122; 3 Inst. 113. This construction is perfectly gra-tuitous, and is unsupported by the words of the stat-ute. There never was any question. that the admiralhad jurisdiction within the ebb and flow of the tideon the sea coast. The only controversy, at the timeof passing the statute, was, whether he had jurisdic-tion in ports and havens, and it is certain that he al-ways did ‘pretend to have’ jurisdiction there. Andthe statute, so far from negativing this claim de-clares, in the alternative, that he has, or pretends tohave, the jurisdiction. Lord Hale, in commenting onthis passage in the statute (2 Hale, P. C. 16), says,‘This seems to me to extend to great rivers, wherethe sea flows and reflows, below the first bridges,and also in creeks of the sea, at full water, wherethe sea flows and reflows, and upon high waterupon the shore, though these, possibly, be withinthe body of the county; for there, at least, by thestatute 15 Rich. II., they (the admirals) have a juris-diction; and thus, accordingly it hath been con-stantly used at all times, even when the judges ofthe common law have been named in the commis-sion; but we are not to extend the words ‘pretend tohave,’ to such a pretence, as is without any right atall, and, therefore, although the admiral pretend tohave jurisdiction upon the shore, when the water isreflowed, yet he hath no cognizance of a felonycommitted there.'And in Lacy's Case (2 Hale, P. C.19, 1 Leon. 270; and Moore, 121. And see Owen,122) an indictment before the high commission

court was held good for a murder committed atScarborough sands, though it was alleged to bedone ‘within the ebb and flow of the tide in Scar-borough, and to be parcel of the port of Scarbor-ough,’ and, as some of the reports show, expresslyupon the ground that the jurisdiction of the highcommission court extended to such places.FN26

And, it may be added in confirmation, that the com-missions, issued upon this statute, have uniformlyauthorized inquisitions of all felonies, ‘super mari,vel aliquo rivo, portu, aqua dulci, creca, seu locoquocunque infra fiuxum maris ad plenitudinemmaris a quibuscunque primis pontibus versus mareet super littus maris, etc. secundum stylum et con-suetudinem regni Angliae et curiaeadmiralitatis.'FN27And the judicial writs, issued bythe high commission court, from time to time(Exton, c. 17, p. 245, etc.), and the statute of 11 &12 Wm. III. c. 7, in pari materia, seem to put thisconstruction beyond all question. The statute of 28Hen. VIII. does, therefore, warrant a strong infer-ence, that, at the time of its passage, it was under-stood as law, that the admiralty had jurisdictionupon tide waters, in ports, havens, and creeks of thesea. And Lord Hale's exposition of this statute, andhis affirmation of the admiralty jurisdiction in theseplaces, in contradiction to Lord Coke, has beenvery recently and solemnly recognised by thetwelve judges of England, and sentence of deathpassed in pursuance of that opinion. Bruce's Case(1812) 2 Leach, Cr. Cas. (4th Ed.) 1093. See, also,Coombe's Case, 1 Leach, Cr. Cas. 388.

FN261 Leon, 270; Moore, 121. Lord Hale'sexplanation of this judgment (2 Hale, P. C.20) does not seem to comport with thegrounds of the decision, as stated in Le-onard and Moore. In both reports, the caseis put upon the point, that it was within thejurisdiction of the high commission court,under statute 28 Hen. VIII., and not (asLord Hale supposes) the death being onland, by virtue of any common law com-mission. In the report in Moore, 121, thefollowing additional opinion is imputed tothe court, that ‘by the statute 13 Rich. II.,c. 5, the admiral himself is prohibited to



intermeddle with any thing within the bodyof the county, as all havens are, and, onthat account, havens are not within the ad-miralty; yet all the land, upon which thewater of the sea flows and reflows, is with-in the jurisdiction of the admiralty.’Thisremark, in its obvious purport, seems to re-cognise the doctrine of the admiralty, thatit has not jurisdiction in ports and havens,as such, and over the ports and haventowns, but only so far in the ports, &c. asthe sea flows, and, if this be the true mean-ing, it seems to coincide with that avowedby Lord Hale. 2 Hale, P. C. 17.

FN27 2 Hale, P. C. 18. The words of thecommission are given somewhat differ-ently by Zouch, 112. The jurisdiction isthus described: ‘Tam in aut super mari autaliquo portu, rivo, aqua dulci, creca seuloco quocunque, infra fluxum maris adplenitudinem, a quibuscunque primis pon-tibus versus mare, quam super littus mariset alibi ubicunque infra jurisdictionem nos-tram maritimam aut limites admiralitatisregni nostri et dominiorum nostrorum.’Andsee Zouch, 93, and 2 East, P. C. 795, andSir L. Jenkins' Charge, 91, 92.

It may be well, in this connexion, to take noticeof another doctrine of the common law, viz. thatwhere an act is done partly upon the land and partlyupon the sea, the admiralty is excluded. Hence it issaid, that if a ship be taken at sea, and carried to aport within the body of a county, the admiraltyloses its jurisdiction. 4 Inst. 140; 12 Coke, 79. It isdifficult to comprehend what an act is, that can bedone partly on the sea and partly on the land; andstill more difficult to perceive, how the bringing the*431 property infra praesidia, (if I may so say) candeprive the admiralty of its jurisdiction. The corpusdelicti still remains, and, until the property is sobrought within the power of the court, it wouldseem impracticable to exercise any jurisdiction atall; and it would be strange, indeed, if the only cir-cumstance, which would render the jurisdiction ef-fectual, should take it away. The statute 13 Rich. II.

c. 5, allows the admiralty cognizance of things doneupon the sea, and yet, upon this construction, itwould be entirely lost or useless. It is utterly im-possible to support such an opinion; and, accord-ingly, it has been in other cases qualified or aban-doned. 1 Rolle, Abr. 533, 1, 13. Other distinctions,however, have sprung up in its room, to defeat theclaims of the admiralty. It has been held, that if thetort be done at sea, and afterwards the property bechanged by a sale on land; or, if the tort be not onecontinuing act, but be severed by the interventionof new parties, the jurisdiction of the admiralty isgone. Spanish Ambassadour v. Jolliff, Hob. 78;Com. Dig. ‘Admiralty’ F, 5; 2 Brown, Adm. 118.These distinctions have, in their turn, been denied,and, after a very severe and doubtful conflict, thereasonable doctrine seems now established, that,where the tort is done at sea, the jurisdiction of theadmiralty is not defeated by any subsequent trans-action on land, or by any concurrent jurisdiction ofthe common law. 1 Vent. 308; Radly v. Eglesfield,Id. 173, 2 Saund. 259; Cro. Eliz. 685; 1 Rolle, Abr.530, 1, 40; Com. Dig. ‘Admiralty’ F, 5, 6. And, itmay be added, that this is the unquestionable doc-trine in the United States.Rose v. Himely, 4 Cranch[8 U. S.] 241.

We have now considered the principal, if notall the reasons, which the courts of common lawhave advanced, to exclude the admiralty from juris-diction in ports and havens.

On the other hand, the admiralty has strenu-ously contended, that the statutes of Richard II.never intended to deny the jurisdiction in ports andhavens, within the ebb and flow of the tide, and ingreat streams beneath the first bridges. It fortifiesits pretensions by the consideration, that such wasits undoubted jurisdiction in the reign of EdwardIII., to which the statute of 13 Rich. II. c. 5, appealsfor a determination of its authority; that this is theonly statute, speaking affirmatively in respect to theadmiralty jurisdiction, declaring it to extend tothings done upon the sea; and that the sea (whichincludes all waters as far as the tide flows) neverwas within the body of any county; that long afterthe statutes of Richard II., the admiralty continued



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to exercise jurisdiction in ports and havens (Exton,c. 17, p. 255); that it was recognised by the courtsof common law upon writs of procedendo and con-sultation, in the reigns of Henry VIII. and Elizabeth(Exton, cc. 3, 10-13, 17-20, pp. 80-276), by acts ofparliament, and especially by St. 28 Hen. VIII. c.15; 32 Hen. VIII. c. 14; and 1 Eliz. c. 17 (Exton, c.5, p. 104; Id. c. 20, p. 270; Zouch, 112); that it isconfirmed by the forms of the commissions of thelord high admiral, which, notwithstanding the stat-utes of Richard, have, for ages since, continued toinclude jurisdiction in ports and havens, and riversbeneath the first bridges (Zouch, 92); and, finally,that it seems admitted in 1632, by the concurrentopinion of all the twelve judges.FN28 These pre-tensions, too, have been deliberately adopted by SirH. Spelman; for he says (Spel. Reliq. Adm. Jur.226), ‘The place absolutely subject to the jurisdic-tion of the admiralty is the sea, which seemeth tocomprehend public rivers, fresh waters, creeks, andsurrounded places whatsoever, within the ebbingand flowing of the sea at the highest water, theshore or banks adjoining, from all the first bridgesseaward.’Lord Hale seems to admit the same doc-trine (2 Hale, P. C. 16; Hale, De Port. c. 7, p. 88);and it has been solemnly recognized and enforced(as we shall hereafter see) by the congress and thesupreme court of the United States.FN29

FN28‘Likewise, the admiral may inquireof, and redress all annoyances and obstruc-tions, in all navigable rivers beneath thefirst bridges, that are impediments to nav-igation, or passage to or from the sea, and,also, to try personal contracts and injuriesthere, which concern navigation on thesea.’Exton, 404; Zouch, 122; Agreement in1632.

FN29 In Godfrey's Case, Latch, 11, theopinion of Doddridge, J., seems to assert,that the sea extends to tide waters in ports,for, when he speaks of a contract made onboard of a ship at anchor, and says it isthen made on the sea, he probably meansat anchor in port.

We are next led to the consideration of the jur-isdiction of the admiralty over contracts. And hereit is held by the courts of common law, that the jur-isdiction is confined to contracts made upon thehigh sea, to be executed upon the high sea, of mat-ters in their own nature maritime. These restrictionspurport to be founded upon the construction of thestatutes of Richard II., and more especially on thatof 15 Rich. II. c. 3. There is, as we have alreadyseen, no authority for them in any anterior reign;and it is certain, that before Richard's time the ad-miralty did openly assert and exercise jurisdictionover maritime contracts. The statute of 13 Rich. II.c. 5, is the only one, which (as has been alreadystated) speaks in affirmance of the admiralty juris-diction, and it allows it of ‘things done upon thesea.’ It is difficult, looking to the obvious intent ofthis statute, as explained in the preamble, and morefully in the petition, to which it was a response(Exton, 289, 290, etc.), to believe, that it meant toabridge the jurisdiction then claimed by the admir-alty, except as to things on land within the ports ofthe realm. It meant to check its usurpations, and notto narrow its ancient rightful authority. And as tocases without the mischiefs of the statute, as con-tracts beyond seas, on which the common *432 lawwould then afford no remedy, and disclaimed juris-diction, there was no reason to extend the meaningof the enacting clause, so as to embrace them. Andsuch for some time was the construction adopted inpractice. Tucker v. Cappes, 2 Rolle, 497. Thewords, however, are not ‘things done upon the sea’absolutely, but according to the usage in the time ofEdward the Third. And we have seen that, at thattime, the sea comprehended the waters in ports, asfar as the flood tide extended; and that maritimecontracts were enforced in the admiralty. The trueinterpretation then of the words ‘things done uponthe sea,’ in this connexion, would seem to be allthings done touching the sea, i. e. maritime affairsin general; and this is the approved interpretationasserted by the admiralty. Zouch, 103; Exton, 321.Nor let it be deemed a strained or unnatural con-struction of the words. It is adopted by Selden in re-spect to similar expressions in an ordinance re-specting the jurisdiction of the admiralty of France.



The ordinance uses this phrase, ‘pour raison ou oc-casion de faict de la mer.'FN30‘Id est (says Selden)ob causam aliquam a re maritimâ ortam.’Seld. deDom. Mar. lib. 2, c. 18, p. 169. Valin, too, recitesseveral ordinances of France respecting the juris-diction of the admiralty, and particularly one aboutthis very period (Ordinance of 1400) which gives(article 3) ‘connoissance et jurisdiction de tous lesfaits de la mer, et des dependences criminellementet civilement;’ and again (article 20) ‘de choses de-pendants de la mer,’ which expressions he does notscruple to declare as a grant of jurisdiction over allmaritime contracts. He adds, that the judges of theadmiralty have always of right, from the verynature and object of their institution, possessed cog-nizance of them; and this, not only as to contractsthen in use, but as to all other contracts of a mari-time nature. 1 Valin, Comm. 124. Valin, therefore,affords a distinct authority in favor of this exposi-tion of the words of the statute, for there is no sub-stantial distinction between ‘choses faits sur la mer’and ‘faits de la mer;’ and this too in a similar con-troversy as to jurisdiction between the rival courtsof France, contested with as much zeal, as it hasbeen in England. But if we waive this interpreta-tion, which rests on the reference to the usage in thetime of Edward III., and if we reject this referencealtogether (which in common reason we are not atliberty to do), still, in the most literal and rigidsense of the terms, ‘things done upon the sea,’ theadmiralty must have jurisdiction in all cases ofmaritime service and labor, for these are strictlydone upon the sea. And whether the contract or en-gagement be made at land or not is immaterial,since the service is actually performed upon thesea, and the jurisdiction attaching to the service, theother things are but incidents. We shall presentlysee, how far the common law courts have adoptedthis or any other consistent construction of the stat-ute.

FN30 The words of the statute of Rich. II.are ‘choses faits sur la mer.’

Let us now recur to that, which should princip-ally engage our attention, viz. the statute of 15Rich. II. C. 3. It prohibits the admiralty from taking

cognizance of ‘all manner of contracts, pleas andquereles, and all other things, done or arising withinthe bodies of counties, as well by land as by wa-ter.’The whole question, as to the extent of this pro-hibition, turns upon the legal meaning of the words‘contracts, pleas and quereles arising within thebodies of counties,’ for no particular stress can belaid upon the word ‘done,’ as in every fair construc-tion it must refer to its next antecedent, ‘otherthings.’ In respect to ‘quereles,’ if by this word bemeant torts or injuries in rem, or in personam, thejurisdiction would seem limited to the place wherethe act is done, for there it may be said properly toarise. If ‘complaints or controversies' be meant (aswould seem to be the critical sense), the placewhere they arise must depend upon the subject mat-ter; if torts or injuries in rem, they arise, where theacts are done; if contracts or personal rights, theyarise where the performance or breach of perform-ance, or other invasion of right, takes place. Thesame observation applies to ‘pleas' or actions, for‘ex facto jus oritur, et actio oritur ex delicto.’In amore enlarged sense, ‘controversies, pleas and ac-tions' arise, where the law has appointed the forumcompetent to try them. Such are the forum rei sitae,the forum domicilii, the forum maleficii, &c. whichdepend upon the municipal regulations of each par-ticular country. See Pothier's Pandects, lib. 5, tit. 1,§ 35, etc. In respect to contracts,’ these may be saidto arise, where they originate or are made, or, withequal propriety, where they are to be executed orperformed. So it is laid down in the civil law,‘Contraxisse unusquisque in eo loco intelligitur, inquo ut solveret se obligavit’ (Dig. lib. 44, tit. 7, 1.21; 2 Emer. 331); ‘Contractum autem non utique eoloco intelligitur, quo negotium gestum sit, sed quosolvenda est pecunia’ (Dig. lib. 42, tit. 5, l. 3; Ex-ton, 323; Hein. Element. Pandect. pars. 2, § 36).Huberus (De Foro Compet. § 53) asserts the samedoctrine; ‘Non eum esse locum contractus semper,ubi negotium inter partes celebratum, sed ad quemcontrahentes respexerunt.’The common law has ad-opted the same doctrine, for it construes a contractby the law of the place, where it is to be performedor executed, and not simply the place of its origin.And it now sustains actions in its own courts upon



foreign contracts, solely upon the ground, that suchcontracts are not local, but exist or arise in everyplace, where the debtor is found. It proceeds yetfurther, and takes cognizance of torts and injuries topersons and property without the realm, both *433upon the high seas and in foreign countries, uponthe ground that they are not local, but arisewherever the party resides. And in this respect itseems to have adopted the doctrines of the civil-ians. Hub. de Foro Compet. p. 731, § 57. It is ut-terly impossible to reconcile the decisions of thecourts of common law with the construction of thestatute of 15 Rich. II. c. 3, here stated, or indeedwith any other construction warranted by the wordsof the statute or by consistent principles of inter-pretation.

Let us now proceed to consider these variousdecisions. And, in the first place, it is held, that theadmiralty has no jurisdiction over matters doneupon land in foreign parts. 4 Inst. 134, 139. It oughtto be observed, that the admiralty never did claim,as of right, the cognizance of torts or injuries in remor in personam in foreign countries, nor of con-tracts made there, which were not of a maritimenature. It may sometimes have entertained suits of adifferent kind; but the limit, which upon principle ithas prescribed to itself, has been to decline all juris-diction except of foreign maritime contracts.FN31

The principal ground, upon which the common lawproceeds to enforce this restriction, is that by thestatute of 13 Richard II. c. 5, the admiralty is con-fined to things done upon the sea. It has beenalready submitted, that this is not a necessary con-struction, for the principal object of that statute wasto prevent the admiralty from intermeddling withthings done within the realm, and that it did notmean to abridge its ancient rightful jurisdiction, butleft it as it was in the time of Edward III. It is in-controvertible, that at that period the admiralty hadcognizance of foreign maritime contracts, for in theordinance of Edward I. at Hastings (alreadyquoted), it is given in express terms. Clerke, Prax.143, 144. So reasonable did it in fact appear to al-low this jurisdiction as to foreign contracts, thatthere is a string of adjudications each way. In De laBroche v. Barney (31 Eliz.) 3 Leon. 232, upon a

suit in the admiralty, upon an obligation supposedto be made and delivered in France, the whole courtheld in effect, that the admiralty had a concurrentjurisdiction with the common law over foreign con-tracts. This doctrine was affirmed in Furnes v.Smith (11 Car.) 6 Vin. Abr. p. 517, pl. 3; 1 Rolle,Abr. 530, 1, 39. And see Spanish Ambassadour v.Plage, Moore, 814; and Slany v. Cotton, 2 Rolle,486. And notwithstanding divers intermediate con-trary cases (Tomlinson's Case, 12 Coke, 104; 4 Inst.139; Palmer v. Pope, Hob. 79, 212; Bridgman'sCase, Id. 11, Moore, 918; Anon., 2 Brownl. & G.16; Jennings v. Audley, Id. 30; Hob. 79, 213;Tourson v. Tourson, 1 Rolle, 80; S. P., 2 Brownl. &G. 34), it was again, after solemn debate, deliber-ately held in Tucker v. Cappes, 2 Rolle, 492, 497; itwas conceded in the agreements of the judges in1575, and of the twelve judges in 1632;FN32 it wasagain debated in Cremer v. Tookley, Godb. 385;Latch, 188; and, finally, in the last cases reported inthe books, was denied, and the point of jurisdictionadjudged against the admiralty (Ball v. Trelawny,Cro. Car. 603; Jurado v. Gregory, 1 Vent. 32; 1Lev. 267; 2 Keb. 511). In this conflict of opinion, itmay not be unfit to entertain such a doctrine, ascomports best with the principles, which ought toregulate the subject. Considering then, that the ad-miralty from the highest antiquity had this jurisdic-tion; that it was the only court, which, as the lawwas then understood, could enforce foreign con-tracts; that the statute of Richard was made on aspecial occasion, to check the encroachments of theadmiralty; that the language of that statute, ‘chosesfaits sur la mer,’ may well admit the interpretationasserted by the admiralty, viz. such things as are ofa maritime nature, and more especially, as that wasthe rightful usage of the admiralty in the reign ofEdward III., which is incorporated into the very ex-ception of the statute; considering also that the ad-miralty continued to exercise that authority for twocenturies after the passage of the statute, and thatthere is a great weight of common law authority inits favor, it does not seem unfit to hold, that the ad-miralty has cognizance of all foreign maritime con-tracts. There is this additional circumstance of greatimportance, that it is the only construction, upon



which whole classes of cases, still acknowledged tobe within the admiralty jurisdiction, can be sus-tained or reconciled with principle. I allude to theright to entertain suits, 1. To enforce the judgmentsof foreign admiralty courts. 2. To proceed in remupon bottomry bonds executed in foreign parts. Inneither case can *434 there be the slightest pre-tence, that the things are ‘done upon the sea,’ or‘arise upon the sea,’ in the sense affixed to theseterms by the common lawyers. Yet in both thesecases the authority of the admiralty has been admit-ted in the most ample manner (Com. Dig.‘Admiralty,’ E, 10, 17), and in a recent case of bot-tomry triumphantly upheld against every objection(Menetone v. Gibbons, 3 Term R. 267). These mel-ancholy remains of its former splendor stand uponthe ancient foundations of the admiralty before thereign of Richard II., and if they have survived theassaults of enmity and time, it is because the prin-ciples, on which they rest, are solid andimmovable.FN33 In the second place, it is held thatthe admiralty has no jurisdiction, where the contractis made at sea to be executed upon land. One reasonof this is said to be, that in such cases the courts ofcommon law may entertain suits, and where theycan, they exclude all other courts. 4 Inst. 142;Anon., 2 Brownl. & G. 16; Thomlinson's Case, 12Coke, 104; Tucker v. Cappes, 2 Rolle, 492, 497;Com. Dig. ‘Admiralty,’ F, 5, 6; Hale, Hist. Com.Law, 31; 3 Bl. Comm. 106.

FN31 Upon this ground, the cases of Span-ish Ambassadour v. Points, 2 Bulst. 322, 1Rolle, 133; Don Alonso v. Cornero, Hob.212, 2 Brownl. & G. 29; and Empring-ham's Case, 12 Coke, 84,-may, consist-ently with the rightful claims of the admir-alty, be held good law.

FN32 In the agreement of 1575, it standsthus: ‘That the judge of the admiralty, ac-cording to such ancient order, as hath beentaken by King Edward I. and his council,and according to the letters patent of thelord high admiral for the time being, andallowed by other kings of the land eversince, and by custom time out of memory

of man, may have and enjoy cognition ofall contracts and other things, rising aswell beyond as upon the sea, without let orprohibition.’In the agreement of 1632, itstands thus: ‘If suit be commenced in thecourt of admiralty upon contracts made, orother things personally done, beyond orupon seas, no prohibition is to be awar-ded.’Zouch, 121, 122; Exton, 443. Somuch, indeed, was the right to entertainsuits upon foreign maritime contractsdeemed as of course in the admiralty, thatin Clerke, Prax. tit. 41, the mode of pro-ceeding is pointed out without any intima-tion of doubt.‘Aliquando etiam factor, velnegotiorum tuorum gestor in partibustransmarinis, signavit tibi quaedam bonaad tuum usum vel commodum, alius tamenea detinet, vel injuste occupat, in hiscasibus obtinere potes warrantum,’ &c.&c.

FN33 One argument, and indeed a princip-al one, urged by Lord Coke against the ad-miralty jurisdiction over foreign contracts,is, that they are cognizable by the court ofthe lord constable and marshal, commonlycalled the ‘Court of Chivalry.’ This argu-ment is a full illustration of Mr. JusticeBuller's remarks on Lord Coke's (4 Inst.134), respecting the admiralty. By the stat-ute of 13 Rich. II. c. 2, the jurisdiction ofthe court of the lord constable and marshalis expressly limited to conusance ‘of con-tracts and deeds of arms and of war out ofthe realm, and also of things which touchwar within the realm.’Hence it is veryclear, that it has cognizance of such con-tracts only as touch deeds of arms and war(Zouch, 119; 2 Hale, P. C. 33; 3 Bl.Comm. 68); and consequently its jurisdic-tion over all other foreign contracts is ex-cluded.

The doctrine, that the admiralty is ousted by aconcurrent jurisdiction of the common law, would,if true, completely destroy its authority in all cases,



except of prize; for, in all others, the common lawhas now acquired or claimed a concurrent jurisdic-tion. It cannot, therefore, be maintained. Therewould be a much stronger reason for contending,upon sound principles, that, where the admiraltypossessed jurisdiction, the common law ought to beexcluded. As little foundation is there for the sug-gestion, that this is a proper construction of the stat-ute of 15 Rich. II., c. 3. Contracts made at sea cer-tainly ‘arise’ there in the sense of the term assumedby the common law, and the admiralty jurisdictionought therefore to attach. And so the court, in ananonymous case in Cro. Eliz. 685, held, and said,that when the original cause ariseth upon the sea,and other matters happen upon the land dependingupon the original cause, those matters, althoughdone upon land, shall be tried in the admiralty; andthis decision was approved in a still later case.FN34

Nevertheless, against the words of the statute andthe reason of the thing, the courts of common lawhave not hesitated to disavow this at least consistentdoctrine. It is in the next place held, that if a con-tract be made at sea upon a subject not maritime, orbe under seal, or be afterwards sealed upon land,the admiralty has no jurisdiction. Bridgman's Case,Hob. 11, Moore, 918; Palmer v. Pope, Hob. 79,212; 3 Salk. 23. Consistently with the interpretationput upon the statutes of Richard II., by the commonlaw, these distinctions ought not to prevail, for thecontracts ‘arise’ upon the sea, and are ‘things doneupon the sea;’ and there is not a word in the statutesannexing any qualification, as to the nature, objectsor form, of the things done upon the sea. And so isthe opinion held by Lord Holt in Collins v. Jessot, 6Mod. 155, where he asserts, that the admiralty hasjurisdiction in respect to the locality of the cause ofaction, let the nature of the action be what it will.The doctrine, however, which we are now consider-ing, abandons this test of jurisdiction, and so far asit regards the nature of the contract, maritime ornot, rests wholly upon the exposition of the statuteasserted by the admiralty; and is inadmissible inevery other view. As to the effect of a seal in oust-ing the jurisdiction, we shall have occasion morefully to consider it hereafter.

FN34Spark v. Stafford, Hard. 183. In this

case, there was a suit in the admiralty bythe master of a ship against the owner, torecover the amount of a ransom for theship, which was taken at sea by pirates,and the ransom money was paid by themaster on land. Of course the suit wasupon an implied contract of the ownerarising from a payment on land for his be-nefit. The court denied a prohibition,‘because the original cause of action aroseupon the sea, and whatever followed wasbut accessary and consequential, and there-fore well determinable in the court of ad-miralty.’See, also, Godfrey's Case, Latch,11.

Another and leading principle, asserted at com-mon law, is, that the admiralty hath no jurisdiction,though the thing be done or happen at sea, if theoriginal of the act was upon land. Hence, it is held,if a contract be made at land for any maritime busi-ness or thing, to be performed upon or beyond theseas, and there be a breach upon or beyond the seas,the cognizance belongs exclusively to the commonlaw. This, it is said, is a necessary result from legalprinciples, for the contract and breach are both re-quisite to maintain an action, and as both are not‘done or made upon the sea,’ the admiralty cannotclaim any jurisdiction. It would be a waste of timeto go over the different cases in the books, inwhich, upon this ground, prohibitions have beengranted on account of suits in the admiralty oncharter parties, affreightments, and other maritimecontracts. With a few exceptions they are ranged onone side, and in general state the decision withoutcondescending to illustrate it by any reasons or ar-gument. 4 Inst. 134, 138, 139; Anon., Moore, 450;Bylota v. Pointel, Dyer, 159; Bend. & D. 58; John-son v. Drake, 1 *435 Keb. 176; Merryweather v.Mountford, 3 Keb. 552; Fleminge v. Yate, 1 Rolle,410, 3 Bulst. 205; Cappes' Case, 2 Rolle, 492, 497;Slany v. Cotton, Id. 486; Cradock's Case, 2 Brownl.& G. 37; Leigh v. Burley, Owen, 122; Spanish Am-bassadour v. Jolliff, Hob. 78; Hawkeridge's Case,12 Coke, 129; Hoare v. Clement, 2 Show.338;Burton v. Fitzgerald, 2 Strange, 1078; Justin v.Ballam, 1 Salk. 34; 6 Vin. Abr. p. 526, pl. 15, 16.



This doctrine affects to be founded upon a strictconstruction of the statutes of Richard II., becausethe contract ‘arises' on land. It is curious to observethe inconsistencies of the common law courts onthis subject. In the first place, the admiralty has nojurisdiction of contracts made at sea to be executedupon land, because, though the contracts arise atsea, yet the performance, which is the principalthing, is to be on land. In the second place, the ad-miralty has no jurisdiction of contracts made onland to be executed at sea, because the contractsarise on land, and the performance at sea, though aprincipal thing, ought not to oust the common law,whose jurisdiction attached upon the contracts.Upon what principle is it. That the common law as-sumes jurisdiction in the one case or the other?Where the breach or the performance of the con-tract is upon or beyond the seas, no foreign venuecan be laid, and no jury can come to try the issuejoined upon such fact. And for this reason, as wehave seen, the courts of common law formerly de-clined jurisdiction of such causes, because donewithout the realm. Besides, whatever may be theplace of the contract the action, plea or querele‘arises' from the subsequent facts done upon theseas, ‘a fine omnis oritur actio;’ and of the action,plea, or querele, the admiralty ought, at all events,to have cognizance. The proper jurisdiction of thecourts of common law is of things done within thebodies of counties, and its further enlargement, bymeans of fictions, can be considered only as ingeni-ous subterfuges and devices, to amplify theirpowers. The only ground of principle, upon whichthese courts can stand on this point, must be, thatthe cognizance of any one matter of fact within thecounty draws after it the cognizance of all others, asincidents to the exercise of this right (Tremoulin v.Sands, Comb. 462; 4 Inst. 142; Co. Litt. 261); andin this view, that it is perfectly immaterial, whetherthe jurisdiction vest by the making, the perform-ance, or the breach, of the contract within thecounty; or that personal contracts, pleas and ac-tions, have no locality, and ‘arise,’ and may (as thecivilians hold) is found. In either view, the samereasoning is found. In either vew, the same reason-ing must apply equally to the admiralty and entitle

it to all the jurisdiction, which it has ever claimedas of right. Zouch, 104. And in respect to mariners'wages, Lord Mansfield (Howe v. Nappier, 4 Bur-rows, 1944) evidently adopts the former construc-tion, as indeed it had been held before (Coke v.Cretchet, 3 Lev. 60). He says, ‘There (i. e. in casesof wages) the contract is only a memorandum fix-ing the rate, and ascertaining the wages, but the ser-vice at sea is the principal matter in consideration.The gist and foundation of the action (in the admir-alty) is the marine service.’See 3 Bl. Comm. 106;Abb. Shipp. pt. 4, c. 4, § 1. And why, in the case ofa charter party, bill of lading, or other maritimecontract, is the doctrine less true? The service orother act is at sea, and the gist or foundation of theaction is the marine transportation or other service,neglect or injury, and the contract is but collateralto the action. Molloy, bk. 2, c. 2, §§ 2, 13; 1 Hagg.Adm. 226; This principle was forcibly pressed byNoy in the interesting case of Tucker v. Cappes, 2Rolle, 497, and was in part adopted by the court. Itwas in effect held by Mallet, J., in Woodward v.Bonithan, T. Raym. 3, and was solemnly supportedand adjudged in Coke v. Cretchet, 3 Lev. 60. See 2Brown, Adm. 86.

Much, indeed, that might be properly urged onthis head, has been anticipated in another place. Ithas been already shown; 1. that in reason and law acontract may be said to ‘arise,’ as well where it isexecuted, as where it is made; 2. that contractsmade at land, to be executed at sea, were originallywithin the admiralty jurisdiction; 3. that contracts,pleas and quereles, whereof part of the facts ariseon land, and part at sea, may well support a concur-rent jurisdiction of the common law and the admir-alty, since, in respect to each, a principal matterarises within its cognizance; and 4. that this con-struction is consistent with the words of the statutesof Richard II., and avoids all the incongruities ofthe decisions of the common law. These doctrinesare yet further supported by authority. By the stat-ute of 32 Hen. VIII., c. 14, cognizance was ex-pressly given to the admiralty over charter partiesand affreightments within the purview of that act.Zouch, 106; Prynne's Animad. 121, 122. In theagreement of the judges in 1575, and again in that



of the twelve judges in 1632, the admiralty jurisdic-tion in these cases is admitted in the most ampleand explicit manner.FN35 To the *436 formeragreement Lord Coke has made some objections,which are not probably well founded (4 Inst. 135);but to the latter no objections can apply, unless weare to deem the opinions of a single judge, or asingle court, of more weight than the opinions ofthe twelve judges,FN36 delivered after solemn de-bate and deliberation before the king's council,upon this very contest as to jurisdiction, and de-signed to deliver the subject from the endless con-troversies, to which it seemed doomed by the shift-ing adjudications of the rival courts. See 2 Brown,Adm. 77. The ordinance too of parliament, madeduring the commonwealth, (in 1648) completelyconfirms this jurisdiction in its full extent.FN37

FN35 The clause in the agreement of 1575has been already quoted. In that of 1632are the following: ‘If suit be before the ad-miral for freight or mariners' wages, or forthe breach of charter-parties for voyages tobe made beyond the seas, though thecharter-parties happen to be made withinthe realm; and though the money be pay-able within the realm, so as the penalty benot demanded; a prohibition is not to begranted. But if suits be for the penalty, orif the question be made, whether thecharter-party be made or not, or whetherthe plaintiff did release or otherwise dis-charge the same within the realm, that is tobe tried in the king's court at Westminster,and not in the king's court of admiralty, sothat first it be denied upon oath, that thecharter-party was made, or a denial uponoath tendered.’‘If suit shall be in the courtof admiralty for building, amending, sav-ing, or necessary victualling, of a ship.against the ship itself and not against anyparty by name, but such as for his interestmakes himself a party, no prohibition shallbe granted, though this be done within therealm.’If it were pertinent we could hereexplain the restrictions in these causes, butit would occupy too much time.

FN36 They are at least of as great weight,as the resolutions of the judges on a likeoccasion in the Articuli Cleri (3 Jac.),which, though not enacted in parliament,nor adjudged in any cause pending incourt, Lord Coke himself declares, ‘beingresolved unanimously by all the judges ofEngland and barons of the exchequer, arefor matters of law of the highest authority,next unto the court of parliament.’2 Inst.618. Sir Leoline Jenkins has remarked, thatthe agreement of the judges in 1632, ‘waspunctually observed served as to the grant-ing and denying of prohibitions, till thelate disorderly times (meaning the times ofthe usurpation) bore it down, as an act ofprerogative, prejudicial (as was pretended)to the common laws and the liberty of thesubject.’And the same articles were, insubstance, re-enacted in the ordinance ofparliament, in 1648, given in the next note.Sir L. Jenkins' Works, Argumt. etc., p. 81.

FN37 This ordinance is given at large fromScobell's Collection (147) in Mr. Hall'svaluable translation of Clerke, Prax. 24.The first section, after reciting the publicinconvenience to trade through ‘the uncer-tainty of the jurisdiction in maritimecases,’ enacts ‘that the court of admiraltyshall have cognizance and jurisdictionagainst the ship or vessel with the tackle,apparel, and furniture thereof, in all causeswhich concern the repairing, victualling,and furnishing provisions, for the setting ofsuch ships or vessels to sea; and in allcases of bottomry, and likewise in con-tracts made beyond the seas concerningshipping or navigation, or damages hap-pening thereon, or arising at sea in anyvoyage; and likewise in all cases ofcharter-parties, or contracts for freight,bills of ladladen or mariners' wages, ordamages done by laden on board ships, orother damages done by one ship or vesselto another, or by anchors or want of layingof buoys, except always that the said court



of admiralty shall not hold pleas or admitactions upon any bills of exchange, or ac-counts betwixt merchant and merchant ortheir factors.’This ordinance was madeperpetual by another in 1654, but it fellwith the other acts of the commonwealthupon the restoration of Charles II.

Nor do these authorities stand alone. They arecorroborated by the early practice of the admiralty,immediately after the passage of the statutes ofRichard; by the recognition of that practice in thecourts of chancery and common law, in grantingcommissions of appeal and writs of procedendo andconsultation in the respective reigns of Richard II.,Henry IV., Henry VIII., Elizabeth, James I., andCharles I. (Exton, cc. 7-9, pp. 338-394; SpanishAmbassadour v. Plage, Moore, 814); by subsequentcommon law decisions scattered in the reports(Tasker v. Gale, 6 Vin. Abr. p. 527, pl. 19, 21. Andsee Godfrey's Case, Latch, 11; Smith v. Tilly, 1Keb. 712); and lastly, by the uniform language ofthe commissions of the lord high admiral, grantedsince the statutes of Richard II., which confer themost ample jurisdiction over all maritimecontracts.FN38

FN38 Zouch (92) has given a copy of theimportant clauses of one of those commis-sions. It authorizes the admiralty ‘to holdconusance of pleas, debts, bills of ex-change, policies of assurance, accounts,charter parties, contractions, bills of lad-ing, and all other contracts which may anyways concern moneys due for freight ofships hired and let to hire, moneys lent tobe paid beyond the seas at the hazard ofthe lender, and also of any cause, businessor injury whatsoever had or done in orupon or through the seas, or public riversor fresh waters, streams, havens, andplaces subject to overflowing whatsoeverwithin the flowing and ebbing of the sea,upon the shores or banks whatsoever ad-joining to them or either of them from anyof the said first bridges whatsoever to-wards the sea throughout our kingdoms of

England and Ireland, in our dominionsaforesaid, or elsewhere beyond the seas, orin any ports beyond the seas whatso-ever.’And see collection of sea laws(chapter 2, Malyne, Lex. Merc. p. 47). Theclause in this commission, as to jurisdic-tion on the shores, would seem to refer tothe meaning of the word ‘maritime,’ asstated in Hawkeridge's Case, 12 Coke, 129,where it is said that ‘maritima est super lit-tus, or in portu maris.’Even Lord Hale felthimself bound to admit the antiquity ofthese claims of the admiralty, while he en-deavored to evade the force of the argu-ment.Justice v. Brown, Hard. 473.

There is also an exception to the doctrine,which we have been considering, (viz. that the ad-miralty hath no jurisdiction, where the contract ismade at land, although to be executed at sea) whichis wholly irreconcilable with the construction at-tempted to be given by the common lawyers to thestatutes of Richard II., and with every general prin-ciple, for which they contend. I allude to the ac-knowledged right of the admiralty to entertain suitsfor mariners' wages. The history of this exception ishighly instructive; and cannot be studied with toomuch attention by those, who are in search of thetrue exposition of the statutes of Richard II., andthe rightful jurisdiction of the admiralty.

It was at first held, that the admiralty had nojurisdiction over mariners' wages, because the con-tract was made on land. Dyer, p. 159, note 38. Andthe earliest case in the Reports, in which the juris-diction was affirmed, is in the 19th year of James I.Anon., Winch. 8. A prohibition was there prayedfor and denied, ‘because he did not sue his prohibi-tion in due time, viz. before a judgment given in theadmiralty court, which in point of discretion theydisallowed; and also these are poor mariners, andmay not be delayed of their wages so long, and, be-sides, they may all join in a libel in the *437 admir-al's court, but, if they sue here, they must bringtheir actions several, and therefore it is good discre-tion in the court to deny the prohibition.’This de-cision, founded upon compassion and laches, does



not seem to have been readily acquiesced in, for inWoodward v. Bonithan, T. Raym. 3, the court held,that mariners' wages were not sueable, in the admir-alty. Soon after this the courts sustained the juris-diction in various cases, although constantly con-tested (Anon., 1 Vent. 146, 343; Alleson v. Marsh,2 Vent. 181; King v. Pike, 2 Keb. 779); and fromthat period, this ‘sufferance,’ as Keeling, C. J.(Smith v. Tilly, 1 Keb. 712), calls it, became gener-al, and gradually ripened into a right, which hasever since, in cases of ordinary hire, remained un-disputed.

The grounds, upon which this exception hasbeen supported, remain to be considered; and thedifferent reasons, which have been assigned by dif-ferent judges, may be arranged under the followingheads:-1. That it is more convenient for seamen tosue in the admiralty, because they may all join inone suit. Anon., 1 Vent. 146; Wells v. Osmond, 6Mod. 238, 2 Ld. Raym. 1044; Clay v. Sudgrave, 1Salk. 33, 1 Ld. Raym. 576; 12 Mod. 405; Howe v.Nappier, 4 Burrows, 1944; Ross v. Walker, 2 Wils.264; Anon., 8 Mod. 279; Mills v. Gregory, Sayer,127. 2. That by the maritime law, if the ship perishby the mariners' default, they are to lose theirwages; which (it should seem from this reason)would be otherwise due at common law. Anon., 1Vent. 146. 3. That the true reason is, that though thecontract be made on land, yet the ship is made li-able for the wages. Wells v. Osmond, 6 Mod. 238,11 Mod. 31, 2 Ld. Raym. 1044; Clay v. Sudgrave, 1Salk. 33; Hook v. Moreton, 1 Ld. Raym. 397; Rossv. Walker, 2 Wils. 264. 4. That mariners' wagesgrow due to them for labor or service done at sea,and the charter and contract at land is only to ascer-tain their rate. Coke v. Cretchet, 3 Lev. 60; Howe v.Nappier, 4 Burrows, 1944. 5. That it is not on ac-count of the service done at sea, but because theyare mariners, and the suit is for mariners' wages;and therefore, if the service be done in port, and thevoyage be abandoned, the mariners may still sue fortheir wages in the admiralty. Wells v. Osmond, 6Mod. 238, 11 Mod. 31, 2 Ld. Raym. 1044; S. P.,Anon., 1 Vent. 343; Mills v. Gregory, Sayer, 127.That the jurisdiction of the admiralty over mariners'wages is an ancient concurrent jurisdiction, as an-

cient as the constitution itself. Brown v. Benn, 2Ld. Raym. 1247; S. P., Queen v. London, 6 Mod.205. 7. That it is expressly against the statutes ofRichard II.; and is a mere indulgence, and is nowgrounded upon the maxim ‘quod communis errorfacit jus' (Clay v. Snelgrave, 1 Ld. Raym. 576, 1Salk. 33; 12 Mod. 406), and nothing but constantpractice affirms it (Opy v. Adison, Id. 38; 1 Salk.31; Day v. Searl, Cunn. 32; 7 Mod. 206); and it isnot de jure, but by indulgence (Ewer v. Jones, 2 LdRaym. 934; Day v. Searl, Cunn. 32; 7 Mod. 206;Ridg. 53; 2 Barnard, 419).

A short review of these reasons may not bewithout use. As to the first, it cannot of itself fur-nish any solid ground for vesting a jurisdiction oth-erwise unauthorised. It is an argument merely ab in-convenienti; and, besides, the jurisdiction existsequally, whether one or many mariners sue. Allesonv. Marsh, 2 Vent. 181; Hook v. Moreton, 1 Ld.Raym. 397. The second is founded upon a supposi-tion, that the common law would, in the given case,decide differently from the maritime law, which isnot true. The third is not universally true, or ratherdoes not universally apply, for a suit may be main-tained for mariners' wages in the admiralty, as wellin personam, as in rem. It is an entire mistake, thatits jurisdiction is in general limited to proceedingsin rem. Alleson v. Marsh, 2 Vent. 181. The fourth isin direct hostility to the construction of the commonlaw, as to all other maritime contracts, and if cor-rect, furnishes a complete recognition of the generaldoctrine of the admiralty. See Abb. Shipp. p. 4, c.4, § 1. The fifth is a virtual contradiction of thefourth, and puts the jurisdiction upon the personalprivilege of the parties, not upon the nature or theplace of the service done, a distinction at war withthe statutes of Richard, and not easily reconcilablewith the case of Ross v. Walker, 2 Wils. 264. Thesixth reason is undoubtedly well founded, and is acomplete answer to the laborious commentaries ofLord Coke. But the reason is in itself of no weight,unless it is admitted, that the statutes of Richard II.were not intended to abridge any part of the origin-al rightful jurisdiction of the admiralty, but only tocheck its usurpations over contracts made at landunconnected with maritime business. In this view it



has a most important bearing. The seventh and lastreason is indeed extraordinary. It may be truly ob-served, in the pointed language of Mr. Douglas(Wilkins v. Carmichael, 1 Doug. p. 101, note1),‘surely it is not consonant to legal principle tohold, that any usage or common error can abrogatea statute to any purpose, or give legality to what anact of parliament expressly prohibits.’It may be ad-ded, that all these reasons, except the fourth andsixth, have not the slightest connection with anypossible construction of the statutes of Richard II.;and the fourth and sixth, if they are correct in prin-ciple, sustain the whole superstructure of the admir-alty jurisdiction over all maritime contracts.

In respect also to mariners' contracts, certaindistinctions seem to prevail at common law, whichare as purely arbitrary and irreconcilable withsound principle, and the statutes of Richard II., asany, which have been mentioned. I allude to thedistinctions, that although mariners may sue in theadmiralty for their wages for services whollyrendered in port, or in navigating from port to port*438 within the realm (Wells v. Osman, 2 Ld.Raym. 1044; 6 Mod. 238; Mills v. Gregory, Sayer,127; Annon., 1 Vent. 343; 2 Brown, Adm. Append.533), and this, as well where the contract is in writ-ing as by parol, provided it be upon the usual termsand stipulations (Benns v. Parre, 2 Ld. Raym. 1206;Anon., 8 Mod. 379); yet the master of the ship isnot allowed, under any circumstances, to sue therefor his wages (Ragg v. King, 2 Strange, 858; Clayv. Sudgrave, 1 Salk. 33; 1 Ld. Raym. 576; 12 Mod.405; Read v. Chapman, 2 Strange, 937; The Fa-vourite, 2 C. Rob. Adm. 232; Bayly v. Grant, 1Salk. 33, 1 Ld. Raym. 632; 12 Mod. 440), nor themariners, if their contract be under seal (Palmer v.Pope, Hob. 79, 212; Opy v. Child, 1 Salk. 31; 12Mod. 38; Day v. Searle, 2 Strange, 968; 7 Mod.206; Cunn. 32; Ridg. 53; Howe v. Nappier, 4 Bur-rows, 1944), or contain any unusual covenants orstipulations. The reason of the distinction as to themaster is said to be, that the mariners are presumedto contract upon the credit of the ship, and the mas-ter upon the personal credit of owner; a reason alto-gether gratuitous, for the credit is in fact as muchgiven to the owner in the one case as in the other.

And Mr. Abbott justly observes, that ‘it is difficultto distinguish the case of the master from that of thepersons under his command; the nature and place ofthe service, and the place of the hiring, are in bothcases usually the same.’Abb. Ship. pt. 4, c. 4, § 1.And there have been cases, even at the commonlaw, where the distinction has been doubted anddenied. See cases cited in Clay v. Snelgrave, 1 Ld.Raym. 578; 12 Mod. 405; King v. Pike, 2 Keb. 779;Smith v. Tilly, 1 Keb. 712; Barber v. Wharton, 2Ld. Raym. 1452; 16 Vin. Abr. 438, pl. 35; 2 Brown,Adm. 89, 95, 104.

The next distinction, as to the contract's beingunder seal, is no where very fully explained. InBridgeman's Case, Hob. 11, it is said to be, becausean obligation takes its course and binds accordingto the common law, which would seem to be noreason at all. A more plausible reason is, that thecivil law requires two witnesses to prove a sealedinstrument,FN39 whereas the common law requiresbut one. See Howe v. Nappier, 4 Burrows, 1944;Menetone v. Gibbons, 3 Term R. 267; Smart v.Wolff, Id. 323; and Buller, J., Id. 348. Assumingthis statement to be correct, as to the admiraltypractice, it ought not to oust the jurisdiction, but toinduce the courts of common law, by proper pro-cess, to compel a conformity with their own rules.Richardson v. Disborow, 1 Vent. 291; 2 Poth. Obl.273, etc., translated by Evans. Besides, the libel isfor the service at sea, and the sealed contract comesin collaterally, or in the defence; and if the admir-alty have jurisdiction over the subject matter, it hasalso jurisdiction of all the incidents; and, in suchcase, though a question arise proper for the com-mon law, yet we are told the admiralty may try it.Tremoulin v. Sands, Comb. 462, 12 Mod. 144; Me-netone v. Gibbons, 3 Term R. 267. Another reasonhas been adduced, viz. that the admiralty is not acourt of record, and therefore, like the county court,it cannot hold plea of a specialty.Menetone v. Gib-bons, 3 Term. R. 268; 4 Inst. 135. It is not to ourpresent purpose to inquire, how far this is true as tothe county court; and if true, what is the foundationof the exception; but in respect to the admiralty,notwithstanding the very positive assertions of LordCoke, it is by no means admitted, that it is not a



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court of record. The common law definition of acourt of record is, a court that hath authority to fineand imprison. Salk. 200; 12 Mod. 388; 1 Ld. Raym.213; 3 Bl. Comm. 24; Bec. Abr. ‘Courts,’ D 2, p.101. And accordingly, in Empringham's Case, 12Coke, 84, it was held, that the admiralty had nopower to fine and imprison, because it was not acourt of record, and its proceedings were accordingto the course of the civil law. 4 Inst. 135. The samedoctrine had been previously held in Thomlinson'sCase, 12 Coke, 104, and in an anonymous case (13Coke, 52), and yet it was said in the last case, thatby custom the admiralty might amerce the defend-ant for his default at its discretion (19 Hen. VI. p. 7;Brown, Abr. ‘Admiraltie,’ 1). But surely this doc-trine cannot be true; for it is perfectly clear, that theadmiralty from the highest antiquity, has exerciseda very extensive criminal jurisdiction, and punishedoffences by fine and imprisonment. The celebratedinquestion at Queensborough, in the reign of Ed-ward III., would alone be decisive. See, also, Com.Dig. Adm. D 1, 2, E 12, 13. And even at commonlaw it has been adjudged, that the admiralty mightfine for a contempt. Anon., Styles, 171; Sparks v.Martyn, 1 Vent. 1; Clerke, Prax. tit. 67; 2 Brown,Adm. 110. As to the other reason for its not being acourt of record, viz. that it proceeds according tothe course of the civil law, and that an appeal, andnot a writ of error, lies from its decrees; they havenothing to do with the question, for whether a courtof record or not does not depend upon the form ofproceeding in any court. Besides, the admiralty isexpressly recognised as a court of record in KingEdward's ordinance at Grimsby, where it is said,‘La cause estoit pour ce que l'admiral et ses lieuten-ants sont de record’ (Exton, 27); and, in the articlesin the Black Book of the Admiralty, it is articu-lately declared, ‘Quod admirallus et locum tenentessui sunt de recordo’ (Clerke, Prax. 146; Rough. art.39). But even admitting, that the admiralty were nota court of record, it would *439 not show that it hadno jurisdiction over sealed contracts; for the chan-cery is not a court of record, and yet it may clearlyentertain suits on them.FN40 And, to apply a strongremark of Lord Kenyon (Menetone v. Gibbons, 3Term R. 267), if the admiralty has jurisdiction over

the subject matter, to say that it is necessary for theparties to go upon the sea to execute the instrument(and, as I would add, to make an unsealed contract)borders upon absurdity. Nor are the authorities uni-form on this point. In Coke v. Cretchet, 3 Lev. 60;Clay v. Sudgrave, 12 Mod. 406; Buck v. Atwood, 2Strange, 761; and Gawne v. Grandee, Holt, pp. 49,50, pl. 6,-it was in effect held, that there was no dif-ference between the contract's being by deed or byparol.

FN39 The civil law never requires two wit-nesses, nor indeed any witness, unless theexecution of the deed is denied by theparty on oath, which very rarely can hap-pen. In this respect it holds the chanceryrule, that if any fact be denied in the de-fendant's answer on oath, his denial shallprevail, unless disproved by two witnesses,or one witness, and very strong corroborat-ive circumstances.

FN40 In the United States courts, therecould be no ground for this argument,since all those courts are courts of record.

The other distinction, as to the contract con-taining unusual covenants and stipulations, is quiteas unsatisfactory. It is said in its support, that if thecontract for service be made upon terms and condi-tions differing from the general rules of law, theservice alone cannot entitle a mariner to his wages;his right then must depend upon the performance ofthe stipulated terms; and the construction of the in-strument containing those terms is a proper subjectfor the jurisdiction of the courts of common law.Abb. Shipp. pt. 4, c. 4, § 3. The construction of awritten instrument is a proper subject for everycourt having cognizance of the subject matter; andthis rule is equally as applicable to the admiralty, asto any other court. The admiralty certainly has cog-nizance of written contracts in many cases, as ofbottomry, and ransoms; and it was never yet heardof, that it had no right to put an interpretation uponthese instruments. Even in relation to written con-tracts for mariners' wages, its jurisdiction is notcontested; and if wages are to be decreed, or



denied, it is impossible for the court to do either,with justice, unless it looks into and construes thecontract. And it would be worse than idleness tocontend, that the rules of construction are differentin sealed and unsealed instruments. The otherground is more specious, but not more solid. It isnot true, in any case, that the wages are due merelybecause the service is performed. It must be per-formed according to the express stipulations of theparties, even in the usual form of the contract, oraccording to the implied stipulations resulting fromthe maritime law, where that is silent, otherwise thewages will not grow due. And there is no morereason, why courts of common law should have theexclusive construction of written agreements of anunusual sort, than of those upon the ordinary terms.Do these courts vainly imagine that the admiraltycannot construe maritime contracts with as muchequity, sound principle, and good sense, as them-selves? It is some pleasure to find, that the sound-ness of this distinction has, at least in one case,been denied. Benns v. Parre, 2 Ld. Raym. 1206.

All these distinctions are entirely aside fromany construction of the statutes of Richard; and ifthey are to be held as law, they are limitations ofjudicial discretion in granting ‘indulgences,’ whichseem nearly allied to the maxim, ‘Sic volo, sicjubeo, stet pro ratione voluntas.’See 2 Brown, Adm.94, 96, 104.

It has been further asserted, that the admiraltyhas jurisdiction, only when the parties have boundthemselves in rem; for, if they have bound them-selves personally, its jurisdiction is said to be ous-ted.Per Buller, J., in Menetone v. Gibbons, 3 TermR. 267, 270. And see Ouston v. Hebden, 1 Wils.101. This doctrine is not pretended to be foundedupon the statutes of Richard. Yet it is difficult toperceive, how it can be otherwise supported; and noadjudged case rests singly upon it. Indeed, in thevery case in which it was alluded to (viz. a mari-time hypothecation), the usual form of the instru-ment includes a personal obligation or covenant.All the forms, which have fallen under my notice,are of this nature, and the customary instrument, abond, necessarily includes a personal liability. See

the forms on Abb. Shipp. Append. Nos. 1-3; Gloverv. Black, 3 Burrows, 1394; Marsh. Ins. bk. 2, c. 1,p. 733, etc., and Append. No. 5; 1 Magens, Ins. 25;Molley, De Jur. Mar. bk. 2, c. 11, § 12; 2 Magens,393; 3 C. Rob. Adm. 31. Yet it is conceded on allsides, that of maritime hypothecations the admiraltyhas jurisdiction. The case of mariners' wages alsoinvolves a personal contract, and nothing is morecommon, than a libel against the master or owner inpersonam. In respect also to personal torts on thehigh seas, such as assaults and batteries, the processis necessarily in personam (2 Brown, Adm. 106,110, 396, 397), and the same process is familiarlyapplied in matters of prize (Smart v. Wolff, 3 TermR. 323). So far indeed is it from being true, that theadmiralty has no right to proceed except in rem,that in former times, and down to the reign ofJames I., its proceedings were almost altogether inpersonam, as they must still be, when the process inrem becomes inapplicable or inefficient. See Sparkv. Stafford, Hard. 183; Clerke, Prax. passim; 2Brown, Adm. 396, 397. The dictum, which we arenow considering, seems indeed to have no better orhigher origin, than that of a mere inference from theposition, that where the common law has jurisdic-tion, the admiralty is excluded.

We have now finished our review of the doc-trines, which the courts of common law have heldin the interpretation of the statutes of Richard II. Ithas been shown, that the decisions are not reconcil-able with each other, or with the words of the stat-ute, or with any sound and uniform principle of*440 construction. There seems indeed somefoundation for the declaration of Lord Holt (Hoopv. Mareton, 1 Ld. Raym. 397), that ‘heretofore thecommon law was too severe against the admiralty;’and for the severe censure of the learned Dr.Browne, that these decisions were founded ‘more inprejudice than in reason’ (2 Brown Adm. 85); thatthey were ‘not founded in any system, nor fraughtwith any consistency;’ and that they have ‘involvedthe subject in endless perplexity’(Id. 100).

In addition to the considerations, which havealready been submitted, against the common law in-terpretation of these statutes, there are no small dif-



ficulties, which still remain behind. Whole classesof cases are yet within the acknowledged cogniz-ance of the admiralty, which are at war with that in-terpretation, and can be sustained only upon themore liberal and consistent doctrines of the admir-alty. I have already stated the cases of the executionof foreign sentences, and of foreign maritime hypo-thecations. These are not alone. Until a comparat-ively modern period, notwithstanding the statutes,the admiralty exercised undisturbed jurisdictionover petitory or proprietory suits (The Aurora, 3 C.Rob. Adm. 136; 2 Brown, Adm. 114, etc.; Clerke,Prax. tit. 42, 41); and it still continues, with the ap-probation of the common law, to entertain suits, 1.For possession of ships. 2. Upon controversiesamong part owners as to the employment of ships,and 3dly, Stipulations made on land in causespending in the court. This last class may properlybe deemed a mere incident to the cognizance of theprincipal cause; yet the common lawyers resisted it,as an infringement of the statutes, and it was not fi-nally established in favor of the admiralty, untilafter a struggle for a century. 4 Inst. 135; Zouch,125; Par v. Evans, T. Raym. 78; Degrave v.Hedges, 2 Ld. Raym. 1285; Justice v. Brown, Hard.473. But, as to the four remaming classes, the ad-miralty has had jurisdiction from the highest an-tiquity; and yet these are not ‘things done upon thesea.’ It is therefore a necessary inference, eitherthat the common law interpretation is too narrow,and ought to be rejected; or that these authorities,still allowed to be exercised, are gross usurpations.That the latter construction is correct will not be af-firmed by any person, who has examined the sub-ject with due diligence and candor. That the formeris dictated by general reasoning, public conveni-ence, and great weight of authority, will scarcely bedenied. Nay even the prize jurisdiction imperiouslydemands a similar doctrine, at least so far as it isexercised over prizes captured in rivers, creeks orports, accessible to the sea; and on land by navalforces. Lindo v. Rodney, Doug. 613, note. See Hub-bard v. Pearse, cited in Le Caux v. Eden. Doug.594, 606, note. For whether, as seems the betteropinion (Rob. Coll. Marit. preface VII.) the prizejurisdiction be an immemorial and inherent attrib-

ute of the admiralty, or depend upon the commis-sions issued from time to time during wars, thewords of the statutes of Richard as much apply tothe prize as to the instance court. And if the prizecommission be evidence, that, notwithstanding thestatutes, the court may take cognizance of capturesin creeks and ports, the ordinary commission of theadmiralty is just as good evidence of the extent ofits ordinary jurisdiction in the same places.FN41 Itwould seem to be a mistake of Lord Mansfield(Lindo v. Rodney, Doug. p. 613, note 1) that thecourts of common law never considered prizecauses within the statutes, and that no complaintever was made respecting them. There are variouscases in the books, which intimate a contrary doc-trine (Willets v. Newport, 1 Rolle, 250; Weston'sCase, 2 Brownl. 11; Thermolin v. Sands, Carth.423; Anon., March. 110; Anon., 12 Mod. 16; Sher-monlin v. Sands, 1 Ld. Raym. 271; Anon., 1 Vent.308), if the very elaborate judgment of his lordship,to prove the exclusive jurisdiction in matters ofprize, were not of itself a strong proof, that nothingwas before that time well settled on the subject. In-deed an examination of the various doctrines, foundin our common law reports, would not only confirmthis statement, but would exhibit many strange andcurious deviations from what would at the presentday be deemed common place learning in mattersof prize. And it is very doubtful, whether, until a re-cent period, any such distinction, as prize and in-stance side of the court, was known among thecommon lawyers. After some research, I have notbeen able to detect the slightest allusion to it in anyreport before the case of Lindo v. Rodney, Doug.613, note.

FN41 In recent statutes, the prize jurisdic-tion is expressly given in ports and creeks;but the same jurisdiction was exercised bythe admiralty before any statutes weremade to this effect, as a part of its originalpowers. See Nabob of the Carnatic v. EastIndia Co., 1 Ves. Jr. 371, 391.

Considerations and consequences, like those,which have been mentioned, cannot but forciblyimpress every one, who has examined this subject



with accuracy and diligence, and lead to the conclu-sion (adopted by Dr. Brown) that the jurisdiction ofthe admiralty depends, or ought to depend, as tocontracts, upon the subject matter, i. e. whethermaritime or not; and as to torts, upon locality, i. e.whether done upon the high sea, or in ports withinthe ebb and flow of the tide, or not. 2 Brown, Adm.88, 90, 110. Such is the limit of its jurisdiction,which the admiralty has strenuously asserted at alltimes, notwithstanding a torrent of prohibitions hascompelled it to yield its rights to superior authority.Even in our own times, it has vindicated some of itsancient claims (Velthasen v. Ormsley, 3 Term R.315; Smart v. Wolffe, Id. 323;*441 Menetone v.Gibbons, Id. 267;Ladbrooke v. Crickett, 2 Term R.649): and Dr. Brown has pointedly observed, ‘If aparty should institute a suit in that court on acharter party, for freight, in a cause of average andcontribution, or to decide the property of a ship,and be not prohibited, I do not see how the courtcould refuse to entertain them; and I have somereason to think, that this my opinion is supported byvery high authority.’Sir Leoline Jenkins has alsoably pointed out the inconveniences to the publicand to trade, if the admiralty jurisdiction be evadedin four of the great branches of maritime contracts.1. As to foreign contracts, or those made abroad. 2.As to mariners' wages, freight and charter parties.3. As to building and victualling ships, and as tomaterial men, i. e. those, who furnish materials orsupply work for ships. And 4. As to disputesbetween part owners.FN42 Nor should it be forgot-ten, that in the agreement of the twelve judges in1632, these claims of the admiralty were mostamply admitted and confirmed.FN43

FN42 2 Brown, Adm. 77, note 5. I have toregret, that I have not been able to consultthe originals of two works quoted in thisopinion, which would probably have ma-terially aided my inquiries by their learn-ing and ability. I allude to Sir Leoline Jen-kins' works and Prynne's Animadversionson the 4th Institute. These works were notto my knowledge in New England at thetime of delivering this opinion; and I havebeen always obliged to cite them at second

hand.

FN43 See Wood, Inst. 494. It is apparent,that the late learned Mr. Justice Winchesteradopted these claims in their full extent. Iknow not any man in the United States,who seems to have had more profound andaccurate views of the admiralty jurisdic-tion, than this very able judge.Stevens v.The Sandwich [Case No. 13,409].

On the whole, the result of this examinationmay be summed up in the following propositions. 1.That the jurisdiction of the admiralty, until the stat-utes of Richard II., extended to all maritime con-tracts, whether executed at home or abroad, and toall torts, injuries, and offences, on the high seas,and in ports, and havens, as far as the ebb and flowof the tide. 2. That the common law interpretationof these statutes abridges this jurisdiction to thingswholly and exclusively done upon the sea. 3. Thatthis interpretation is indefensible, upon principle,and the decisions founded upon it are inconsistentand contradictory. 4. That the interpretation of thesame statutes by the admiralty does not abridge anyof its ancient jurisdiction, but leaves to it cogniz-ance of all maritime contracts, and all torts, injuriesand offences, upon the high sea, and in ports as farthe tide ebbs and flows. 5. That this is the true lim-it, which upon principle would seem to belong tothe admiralty; that it is consistent with the languageand intent of the statutes; and is supported by ana-logous reasoning, and public convenience, and avery considerable weight of authority. 6. That underall the circumstances, the courts of law and of ad-miralty in England are not so tied down by a uni-formity of decisions, that they are not at liberty toentertain the question anew, and to settle the doc-trines upon their true principles; and that this opin-ion is supported by some of the best elementarywriters in that kingdom.

But whatever may in England be the bindingauthority of the common law decisions upon thissubject, in the United States we are at liberty to re-examine the doctrines, and to construe the jurisdic-tion of the admiralty upon enlarged and liberal prin-



ciples. The constitution has delegated to the judicialpower of the United States cognizance ‘of all casesof admiralty and maritime jurisdiction;’ and the actof congress (Sept. 24, 1789, c. 20, § 9) has given tothe district court ‘cognizance of all civil causes ofadmiralty and maritime jurisdiction, including allseizures under laws of impost, navigation or trade,of the United States, where the seizures are madeon waters navigable from the sea by vessels of tenor more tons burthen; within their respective dis-tricts, as well as upon the high seas.’

What is the true interpretation of the clause ‘allcases of admiralty and maritime jurisdiction?’If weexamine the etymology, or received use, of thewords ‘admiralty’ and ‘maritime jurisdiction,’ weshall find, that they include jurisdiction of all thingsdone upon and relating to the sea, or, in otherwords, all transactions and proceedings relative tocommerce and navigation, and to damages or injur-ies upon the sea. Cowell, Interpreter, voce‘Admiral;’ Spel. Gloss. voce ‘Admiral,’ sub finem;Godolph. Jur. c. 1; 1 Valin, Comm. 1; Seld. DeDom. Mar. lib. 2, c. 16, p. 160; Stypman, Jus. Mar-it. par. 1, c. 6, pp. 76, 77; Id. par. 5, c. 1, p. 602;Loccenius, Jus. Marit. lib. 2, c. 2. In all the greatmaritime nations of Europe, the terms ‘admiraltyjurisdiction’ are uniformly applied to the courts ex-ercising jurisdiction over maritime contracts andconcerns. We shall find the terms just as familiarlyknown among the jurists of Scotland, France, Hol-land and Spain, as of England, and applied to theirown courts, possessing substantially the same juris-diction, as the English admiralty in the reign of Ed-ward the Third.FN44 If we pass from the *442 ety-mology and use of these terms (i. e. ‘admiralty jur-isdiction’) in foreign countries, the only expositionsof them, that seem to present themselves, are, thatthey refer, 1. To the jurisdiction of the admiralty asacknowledged in England at the American Revolu-tion; or, 2. At the emigration of our ancestors; or 3.As acknowledged and exercised in the UnitedStates at the American Revolution; or, 4. To the an-cient and original jurisdiction, inherent in the ad-miralty of England by virtue of its general organiz-ation.

FN44 Cleirac, Jurisd. de la Marine, p. 191,etc.; Valin, Comm. 1, 112, 120, 127, etc.;Zouch, 87, 91; Exton, 45, 46, 49; collec-tion of sea laws in Malyne, Lex Merc. 47;2 Brown, Adm. 30. The coincidencebetween the general authorities delegatedin the admiral's commission in Scotland,and still exercised there, and those in thecommission of the admiral in England, isso striking as distinctly to show a commonorigin. The admiralty in Scotland has cog-nizance of ‘all complaints, contracts, of-fenses, pleas, exchanges, assecurations,debts, counts, charter parties, covenants,and all other writings concerning ladingand unlading of ships, freights, hires,money lent upon casualties and hazard atsea, and all other businesses whatsoeveramong sea-farers done at sea, this side sea,or beyond sea; the cognization of writs ofappeal from other judges, and the causesand actions of reprisal and letters of mark;and to take stipulations, cognoscions andinsinuations in the books of the admir-alty.’Collect. Sea Laws, c. 2. Malyne, 47.See, also, 1 Bl. Comm. 94, 95; post, p.444, note 47.

As to the first exposition, it is difficult to per-ceive upon what ground it can be reasonably main-tained, for it would enlarge and limit the jurisdic-tion by the provisions of statutes, which have beenenacted for the government and regulation of thehigh court of admiralty, and which proprio vigoredo not extend to the colonies. It would further in-volve qualifications of the jurisdiction, which areperfectly arbitrary in themselves, inapplicable toour situation, and contradictory to the commissionsand practice of the vice admiralty colonial courts.Even if this exposition were to be adopted, are weto be governed by the doctrines of the common law,or of the admiralty? I am not aware of any superiorsanctity in the decisions at common law upon thesubject of the jurisdiction of other courts (to whichat least they bore no good will), which should en-title them to outweigh the very able and learned de-cisions of the great civilians of the admiralty. And



where could we so properly search for informationon this subject, as in the works of those jurists, whohave adorned the maritime courts from age to age,and made its jurisdiction the pride and study oftheir lives?

The second exposition is liable to the same ob-jections; for it is clear, that the statutes of Richarddo not extend in terms to the colonies, and it isquite certain, that they were not included in anysupposed mischiefs, for they then had no existence.Besides, it is a very material consideration, that, atthe emigration of our ancestors, the contest betweenthe courts of common law and the admiralty was atits height; and very soon after (in 1632) it was, bythe agreement of the twelve judges, decided in fa-vor of the admiralty. And here again it may beasked, whose doctrines are to be adopted, those ofthe common law or of the admiralty?

The third exposition requires an examination ofthe authority and powers of the vice admiraltycourts in the United States under the colonial gov-ernment. In some of the states, and probably in all,the crown established, or reserved to itself the rightto establish, admiralty courts;FN45 and the natureand the extent of their jurisdictions depended uponthe commission of the crown, and upon acts of Par-liament conferring additional authorities. The com-missions of the crown gave the courts, which wereestablished, a most ample jurisdiction over all mari-time contracts, and over torts and injuries, as wellin ports as upon the high seas.FN46 And acts ofparliament enlarged, or rather recognised, this juris-diction by giving or confirming cognizance of allseizures for contraventions of the revenue laws.The Fabius, 2 C. Rob. Adm. 245. Tested, therefore,by this exposition, the admiralty jurisdiction of theUnited States would be as large, as its most strenu-ous advocates ever contended for.

FN45 In the charter of Massachusetts, in1692, there is an express reservation of theexclusive right in the crown to establishadmiralty courts, by virtue of commissionsissued for this purpose. See, also, Colon.Acts 1668, 1672; Mass. Col. & Prov. Laws

(Ed. 1814) p. 716.

FN46 It is presumed that the commissionswere usually in the same form. One of thelatest is to the governor of the royalprovince of New Hampshire in 6 Geo. III.Stoke's Hist. of Colonies contains (chapter4, p. 166) a like admiralty commission inthe same words. He says this was the usualform. It authorizes the govern or ‘to takecognizance of, and proceed in, all causescivil and maritime, and in complaints, con-tracts, offences or suspected offences,crimes, pleas, debts, exchanges, accounts,charter parties, agreements, suits, tres-passes, inquiries, extortions, and demands,and business civil and maritime whatso-ever, commenced or to be commencedbetween merchants, or between ownersand proprietors of ships and other vessels,and merchants or others whomsoever withsuch owners and proprietors of ships andall other vessels whatsoever employed orused within the maritime jurisdiction ofour vice admiralty of our said province,&c. or between any other persons whomso-ever had, made, begun or contracted, forany matter, thing, cause or business what-soever done, or to be done, within ourmaritime jurisdiction aforesaid, &c. &c.;and moreover in all and singular com-plaints, contracts, agreements, causes andbusinesses, civil and maritime, to be per-formed beyond the sea or contracted there,however arising or happening,’ with manyother general powers. And it declares thejurisdiction to extend ‘throughout all andevery the seashores, public streams, ports,fresh waters, rivers, creeks and arms, aswell of the sea, as of the rivers and coastswhatsoever of our said province,’ &c. Inpoint of fact the vice admiralty court ofMassachusetts, before the Revolution, ex-ercised a jurisdiction far more extensive,than that of the admiralty in England. See,also. The Little Joe, Stew. Vice Adm. 394.



The clause however of the constitution not onlyconfers admiralty jurisdiction, but the word‘maritime’ is superadded, seemingly ex industria, toremove every latent doubt. ‘Cases of maritime jur-isdiction’ must include all maritime contracts, tortsand injuries, which are in the understanding of thecommon law, as well as of the admiralty, ‘causaeciviles et maritimae.’ In this view there is a peculiarpropriety in the incorporation of the term‘maritime’ into the constitution.*443 The disputesand discussions, respecting what the admiralty jur-isdiction was, could not but be well known to theframers of that instrument.Montgomery v. Henry, 1Dall. [1 U. S.] 149; Talbot v. Commanders andOwners of Three Brigs, Id. 95. One party sought tolimit it by locality; another by the subject matter. Itwas wise, therefore, to dissipate all question by giv-ing cognizance of all ‘cases of maritime jurisdic-tion,’ or, what is precisely equivalent, of all mari-time cases. Upon any other construction, the word‘maritime’ would be mere tautology; but in thissense it has a peculiar and appropriate force. AndMr. Justice Winchester (speaking with reference tocontracts) has very correctly observed, that ‘neitherthe judicial act nor the constitution, which it fol-lows, limit the admiralty jurisdiction of the districtcourt in any respect to place. It is bounded only bythe nature of the cause, over which it is to de-cide.’Stevens v. The Sandwich [Case No. 13,409].The language of the constitution will therefore war-rant the most liberal interpretation; and it may notbe unfit to hold, that it had reference to that mari-time jurisdiction, which commercial convenience,public policy, and national rights, have contributedto establish, with slight local differences, over allEurope; that jurisdiction, which, under the name ofconsular courts, first established itself upon theshores of the Mediterranean, and, from the generalequity and simplicity of its proceedings, soon com-mended itself to all the maritime states; that juris-diction, in short, which, collecting the wisdom ofthe civil law, and combining it with the customsand usages of the sea, produced the venerable Con-solato del Mare, and still continues in its decisionsto regulate the commerce, the intercourse, and thewarfare of mankind. Zouch, c. 1, p. 87, etc.; Seld.

ad Fletam, c. 8, § 5; Rob. Collect. Marit. 105, note;Le Guidon, c. 3; 1 Emer. 21. Of this great system ofmaritime law it may be truly said, ‘Non erit alia lexRomae, alia Athenis, alia nunc, alia posthac; sed etomnes gentes, et omni tempore, una lex, etsempiterna et immortalis, continebit.’Cic. Frag. deRepub. lib. 3 (Editio Bost. 1817, tom. 17, p. 186).

At all events, there is no solid reason for con-struing the terms of the constitution in a narrow andlimited sense, or for ingrafting upon them the re-strictions of English statutes, or decisions at com-mon law founded on those statutes, which weresometimes dictated by jealousy, and sometimes bymisapprehension, which are often contradictory,and rarely supported by any consistent principle.The advantages resulting to the commerce and nav-igation of the United States, from a uniformity ofrules and decisions in all maritime questions, au-thorize us to believe that national policy, as well asjuridical logic, require the clause of the constitutionto be so construed, as to embrace all maritime con-tracts, torts and injuries, or, in other words, to em-brace all those causes, which originally and inher-ently belonged to the admiralty, before any statut-able restriction. And most cordially do I subscribeto the opinion of the learned Mr. JusticeWinchester, in the case already cited (Stevens v.The Sandwich [Case No. 13,409]), ‘that the statutesof Richard II. have received in England a construc-tion, which must at all times prohibit their exten-sion to this country,’ and ‘that no principles can beextracted from the adjudged cases in England,which will explain or support the admiralty juris-diction, independent of the statutes or the works ofjurists, who have written on the general sub-ject.’Indeed the doctrine that would extend the stat-utes of Richard to the present judicial power of theUnited States seems little short of an absurdity. It isincorporating into the text of the constitution an ex-ception, not only unauthorized by its terms, butwholly inappropriate in phraseology to any otherrealm than England. We have not as yet any‘admirals or their deputies;’ we do not refer theirjurisdiction to the reign of ‘the most noble KingEdward the Third;’ much less would an Americancitizen dream, that the constitution authorized the





admiralty ‘to arrest ships in the great flotes for thegreat voyages of the king and of the realm;’ and ‘tohave jurisdiction upon the said flotes during thesaid voyages only,’ and ‘saving always to the kingall manner of forfeitures and profits thereof com-ing,’ and ‘to the lords, cities and boroughs theirliberties and franchises.’

There are moreover decisions of the courts ofthe United States, which completely establish theproposition, that the statutes of Richard, and thecommon law construction of them, do not attach tothis clause of the constitution. We have alreadyseen, that the courts of common law, after thesestatutes, held, that the admiralty had no jurisdictionof things done within the ebb and flow of the tide,in ports, creeks, and havens. It has, notwithstand-ing, been repeatedly and solemnly held by the su-preme court, that all seizures under laws of impost,navigation and trade, on waters navigable from thesea by vessels of ten or more tons burthen, as wellwithin ports and districts of the United States, asupon the high seas, are causes of admiralty andmaritime jurisdiction. U. S. v. La Vengeance, 3Dall. [3 U. S.] 297; Same v. The Sally, 2 Cranch [6U. S.] 406; Same v. The Betsey and Charlotte, 4Cranch [8 U. S.] 443. This limitation, as to theplace of seizure, is prescribed by an act of congress(Act Sept. 24, 1789, c. 20, § 9 [1 Stat. 76]), but it isperfectly clear, that congress have no authority toinclude cases within the admiralty jurisdiction,which the terms of the constitution did not warrant.And the ground is made stronger by the considera-tion, that the right *444 of trial by jury is preservedby the constitution in all suits at common law,where the value in controversy exceeds twenty dol-lars; and by the statute, this right is excluded in allcases of admiralty and maritime jurisdiction. It istherefore utterly impossible to reconcile these de-cisions which in my humble judgment are foundedin the most accurate and just conceptions of the ad-miralty jurisdiction, with the narrow and perplexeddoctrines of the common law. The argument then,that attempts to engraft them upon the constitution,is wholly untenable.

On the whole, I am, without the slightest hesit-

ation, ready to pronounce, that the delegation ofcognizance of ‘all civil cases of admiralty and mari-time jurisdiction’ to the courts of the United Statescomprehends all maritime contracts, torts, and in-juries. The latter branch is necessarily bounded bylocality; the former extends over all contracts,(wheresoever they may be made or executed, orwhatsoever may be the form of the stipulations,)which relate to the navigation, business or com-merce of the sea.

The next inquiry is, what are properly to bedeemed ‘maritime contracts.’ Happily in this partic-ular there is little room for controversy. All civil-ians and jurists agree, that in this appellation are in-cluded, among other things, charter parties, af-freightments, marine hypothecations, contracts formaritime service in the building, repairing, supply-ing, and navigating ships; contracts between partowners of ships; contracts and quasi contracts re-specting averages, contributions and jettisons; and,what is more material to our present purpose,policies of insurance. S. P. Johnson, J., in Croudsonv. Leonard, 4 Cranch [8 U. S.] 434; Cleirac, LeGuidon, c. 1, p. 109; Id. c. 3, p. 124; Id.Jurisd. de laMarine, p. 191; 1 Valin, Comm. 112, 120, etc., 127,etc.; 2 Emer. 319; Godolph. 43; Zouch, 90, 92;Eaton, 69, etc., 295, etc.; Malyne, Lex Merc., 303;Id., Collection of Sea Laws, c. 2, p. 47; Consol. delMare, c. 22; 2 Brown, Adm. c. 4, p. 71; 4 Bl.Comm. 67; Stevens v. The Sandwich [supra];Targa, Reflex. c. 1. And in point of fact the admir-alty courts of other foreign countries have exercisedjurisdiction over policies of insurance, as maritimecontracts; and a similar claim has been uniformlyasserted on the part of the admiralty of England. 2Boucher, Consol. del Mare, p. 730; 1 Valin, Comm.120; 2 Emer. 319; Roccus de Assec. note 80; 2Brown, Adm. 80; Zouch, 92, 102; Molloy, bk. 2, c.7, § 18. There is no more reason why the admiraltyshould have cognizance of bottomry instruments, asmaritime contracts, than of policies of insurance.Both are executed on land, and both intrinsically re-spect maritime risks, injuries and losses.FN47

FN47 Roccus de Ass., note 80, declares:‘These subjects of insurance, and disputes











relative to ships, are to be decided accord-ing to maritime law; and the usages andcustom of the sea are to be respected. Theproceedings are to be according to theforms of maritime courts, &c.’Targa, in hisReflections (chapter 1), defines maritimecontracts to be those, which, according tomercantile usage, respect or concern mari-time negotiations and their incidents. It hasbeen already stated that the jurisdiction ofthe admiralty in England and in Scotlandwere originally the same. And the admir-alty in Scotland still continues to exercisejurisdiction over all maritime contracts,and particularly over policies of insurance,upon the footing of its ancient and inherentrights. In Dow's Reports of decisions in thehouse of lords in 1813 and 1814, are noless than eight insurance causes, whichwere originally brought in the admiralty inScotland, and finally decided on appealsby the house of lords; Lords Ellenborough,Eldon and Erskine, assisting in the de-cisions: Watt v. Morris, 1 Dow, 32; Ten-nant v. Henderson, Id. 324; Watson v.Clark.Id. 336; Brown v. Smith, Id. 349;Sibbald v. Hill, 2 Dow, 263; Hall v.Brown, 367; Smith v. Macneil, Id. 538;Smith v. Robertson, Id. 474.

My judgment accordingly is, that policies of in-surance are within (though not exclusively within)the admiralty and maritime jurisdiction of theUnited States.FN48 I therefore overrule the plea tothe jurisdiction, and assign the respondent to an-swer peremptorily upon the merits.

FN48 There can be no possible question,that the courts of common law have ac-quired a concurrent jurisdiction, though,upon the principles of the ancient commonlaw, it is not easy to trace a legitimate ori-gin to it.

In making this decree, I am fully aware, thatfrom its novelty it is likely to be put to the questionwith more than usual zeal; nor can I pretend to con-

jecture, how far a superior tribunal may deem it fitto entertain the principles, which I have felt it mysolemn duty to avow and support. Whatever may bethe event of this judgment, I shall console myselfwith the memorable words of Lord Nottingham, inthe great case of the Duke of Norfolk, 3 Ch. Cas.52: ‘I have made several decrees, since I have hadthe honor to sit in this place, which have been re-versed in another place; and I was not ashamed tomake them, nor sorry when they were reversed byothers.’

C.C.Mass.,1815.DeLovio v. Boit2 Gall. 398, 7 F.Cas. 418, 1997 A.M.C. 550, No.3776

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