ADMIRALTY JURISDICTION AND PRACTICE. VOLUME II. PRACTICE. CHAPTER I. ORIGIN OF THE AMERICAN COURTS OF ADMIRALTY, THEIR STRUC- courts of Europe. THE revival of commerce after the subversion of the Maritime Western Empire of the Romans, soon led to the continental institution by the enterprising commercial states bordering on the shores of the Mediterranean, of maritime judicatories under the name of consular courts, and to the compilation of maritime codes combining the wisdom of the civil law with the customs and usages of the sea. The great utility of these tribunals commended them to other powers, and soon led to the establishment of similar courts by all the maritime nations of Europe. These courts were invested with a comprehensive jurisdiction relative to matters, whether of contract or tort, pertaining to navigation and VOL. 2. English Colonial viceadmiralty courts. commerce. Their forms of process and modes of proceeding were borrowed from the civil law(a). They remain substantially unchanged to the present day, and their functions and powers are usually designated under the denomination of Admiralty Jurisdiction (6). The English Court of Admiralty is of very high antiquity, and its origin is probably nearly cotemporaneous with that of the maritime courts of the continent. The nature and extent of its ancient jurisdiction are involved in some obscurity, but it seems to have had cognizance of all questions of prize; of torts and offences committed not only upon the high seas, but in ports within the ebb and flow of tide; of maritime contracts and navigation; and also the peculiar custody of the rights, prerogatives and authorities of the crown in the British seas. Its forms of procedure were derived from the civil law, and the rules by which it was governed were the ancient laws, customs and usages of the seas. In fact, the admiralty of England, and the maritime courts of the other powers of Europe, appear to have been formed upon the same model, and their jurisdiction to have included the same subjects as the consular courts of the Mediterranean (c). As the British colonies in the West Indies and on this continent grew into commercial importance, (a) The recovery of the original copy of the Pandects (supposed to have been found at Amalphi), not long before the period here referred to, gave a new impulse to the study of the Roman law on the continent of Europe and in England. 1 Kent's Comm., 475. (b) De Lovio v. Boit, 2 Gallison's R., 472. (c) Id., 399. vice-admiralty courts were established here, with CHAP. 1. extensive powers derived from royal commissions and acts of Parliament. They also proceeded according to the course of the civil law. After the Declaration of American Independence, these courts, in the colonies which were parties to it, became state courts of admiralty, and continued to exercise their powers as such until the organization of the national government. The same cogent motives of expediency which impelled the people of the United States to confide the power to regulate commerce Admiralty with foreign nations and among the several states exclusively to Congress, constrained them also to invest the national judiciary with exclusive cognizance of all cases of admiralty and maritime jurisdiction (a). Congress, at its first session, in the exercise of its power conferred by the Constitution to ordain and establish other courts, inferior to the Supreme Court, instituted the district courts, and invested them with "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as on the high seas()." The district courts of the United States are, therefore, courts of admiralty, and constitute the (a) Constitution of the United States, Art. 11, § 1. (b) Act of Sept. 24, 1789, ch. 20, § 9; 1 Stat. at Large, 73. Jurisdiction vested ex clusively in the courts of the United States. VOL. 2. Legislative provisions regulating the admiralty practice. Test and seal of pro cess. Process to be signed by the clerk. only American tribunals of this character for the exercise of original jurisdiction. The extent of this jurisdiction, the leading principles and rules of law applicable to it, and the sources whence they are derived, have been treated of in the first part of this work. It remains now to point out the forms and modes of procedure which constitute the PRACTICE of the American courts of admiralty, in civil cases, other than those of seizure, under the laws of impost, navigation and trade(a). By the act of September 29, 1789(5), (passed, it will be observed, a few days after the Judiciary Act, above referred to), entitled "An act to regulate processes in the courts of the United States," it is enacted "That all writs and processes, issuing from the Supreme or Circuit Court, shall bear test of the chief justice of the Supreme Court; and if, from a district court, shall bear test of the judge of such court, and shall be under the seal of the court from whence they issue, and signed by the clerk thereof." This act was, by its terms, limited in duration to the end of the then next session of Congress: it was, however, continued for one year longer; and then the permanent act of May 8, 1792(c), usually denominated the Process Act, was passed. The first section of this act is like that (above cited) of (a) The practice in cases of seizure is, to a considerable extent, regulated by acts of Congress, and has been treated of by the author in another work, to which the present may be regarded as a suppleSee Conkling's Treatise on the Organization, Jurisdiction and Practice of the Courts of the United States. ment. (b) Ch. 21; 1 Stat. at Large, 93. (c) Ch. 56; 1 Stat. at Large, 275. the antecedent temporary act, except that it makes CHAP. 1. provision for the test of process, from the Supreme and Circuit Courts, in the name of the senior associate justice of the Supreme Court, when the office of chief justice may happen to be vacant; and of process from the district court, in the name of the clerk of that court, when the office of judge is vacant. The act of 1789 directed "that the forms and modes of proceeding in causes of equity and of admiralty and maritime jurisdiction, shall be according to the course of the civil law." But the language of this provision was modified by the act of 1792, by the second section of which it is enacted that the forms of writs, executions and other process, and the forms and modes of proceeding in suits of equity, and in those of admiralty and maritime jurisdiction, shall be "according to the principles, rules and Proceedings usages which belong to courts of equity, and to courts of admiralty respectively, as contradistinguished from courts of common law, except so far as may have been provided for by the act to establish the judicial courts of the United States, subject, Practice however, to such alterations and additions as the rule. said courts, respectively, shall, in their discretion, deem expedient, or such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court, concerning the same." in admiralty causes to be according ples, etc., of the princi of admiralty. may be altered by of the pro cess act. These are the only legislative provisions which Construction Congress saw fit to enact, except with respect to cases of seizure, to regulate the practice in admiralty. They may, it is supposed, justly be regarded as little |