A TREATISE ON THE LAW OF SHIPPING AND ADMIRALTY. CHAPTER I. THE EXTENT OF THE JURISDICTION OF ADMIRALTY. SECTION I. ADMIRALTY JURISDICTION AS DETERMINED BY PLACE. THE jurisdiction of the court of admiralty in England is, undoubtedly, aside from the jurisdiction conferred by recent statutes, confined to places outside the body of a county, and within the ebb and flow of the tide; being permanent where the tide always flows, and existing in any place between high and low water mark when the tide covers that place, and ceasing to exist there when the tide leaves that place.1 The admiralty powers of the courts of 1 1 Bl. Com. 110; 4 id. 268; Constable's Case, 5 Coke, 106, 107; Barber v. Wharton, 2 Ld. Raym. 1452; 2 East, P. C. 803. See also 1 Kent, Com. 366. But even if the locus be on the water and on a place where the tide never leaves the shore bare, admiralty is excluded of jurisdiction, if it be within the body of any county. This is by virtue of the statutes of 13 Rich. II. c. 5, and 15 Rich. II. c. 3, which were passed with a view of restraining the jurisdiction of the courts of admiralty. One of the reasons why these courts were obnoxious was, that they did not have a trial by jury, but followed the forms and were governed by the rules of the civil law, which was dreaded and detested by the English people; perhaps, because it was introduced by the clergy and used by them for their own aggrandizement. The civil law was especially fitted for the municipal form of government, but was antagonistic to the feudal system. See Pritchard's Digest, Preface; Wynne's Life of Sir L. Jenkins, p. 78; Thierry, Conquête de l'Angleterre, Vol. IV. pp. 334 - 339; Browne, Civ. & Adm. Law, Vol. II. p. 91. this country are given by statutes in conformity with the Constitution; and must be defined and measured by those statutes which, There has been great contention in regard to the construction of the statutes of Rich. II. Anciently the judges depended upon the fees of their courts for their emoluments, and the common-law courts, having the highest power, put such a construction on the statutes as very much abridged the rightful power of the admiralty; but the admiralty lawyers never acquiesced in this usurpation, and have recorded their protests against the deprivation of their authority. As the King's Bench have the controlling power, their decisions must be taken as the law of England, and they have held that the "bodies of counties" from which admiralty jurisdiction is excluded, comprehend all " navigable rivers, creeks, ports, harbors, and arms of the sea which are so narrow as to permit a person to discern, and attest upon oath, anything done on the other shore, and so as to enable an inquisition of the facts to be taken." Rex v. Soleguard, Andr. 231; 2 Browne, Civ. & Adm. Law, 92; Stanton, J., Fitz. Herb. Abr. Corone, 399, 8 Edw. II.; 4 Inst. 140; Hawkins, P. C. p. 2, c. 9, § 14; 2 East, P. C. 804; United States v. Wiltberger, 5 Wheat. 106, note; Com. Dig. Tit. Adm. E. 7, 14; Bacon, Abr. Tit. Adm. A. See also United States v. Grush, 5 Mason, 290; and United States v. Robinson, 4 Mason, 307. Yet admiralty has always claimed jurisdiction on tide waters up to the first bridges, and rightfully too, according to the opinions of ten of the judges in 1713, cited in Andr. 232; 1 Kent, 366; De Lovio v. Boit, 2 Gallis. 398, 420; 15 Rich. II. c. 3. But prohibition lies if it be within a port, 4 Inst. 188, 141; Violet v. Blague, Cro. Jac. 514; 1 Com. Dig. 506. For a general discussion of this question in relation to prize, see Ex parte Lynch, 1 Madd. 15; and note to The Amiable Nancy, 3 Wheat. 546, 558. In 1812, all the judges agreed that common law and admiralty had concurrent jurisdiction in bays, havens, creeks, etc. where ships of war floated. 2 Leach's Crown Cases. 1093. Much of this struggle arose in the time of Lord Coke. The insufficiency of his authorities and the reasons for his prohibitions have been amply shown by Godolphin, Exton, Jenkins, and others, and the whole learning now of any value is collected in the case of De Lovio v. Boit, 2 Gallis. 398. The practical value of this question is destroyed in England, by acts of parliament declaring the jurisdiction of the high courts of admiralty. The following books and cases generally accessible to American students contain elaborate discussions of the subject. De Lovio v. Boit, 2 Gallis. 398; 1 Kent Com. Lect. XVII.; The Schooner Tilton, 5 Mason, 465; Bains v. Schooner James, Bald. C. C. 544; Ramsay v. Allegre, 12 Wheat. 611; The Huntress, Davies, 93, note. In The Eleanor, 6 Rob. Adm. 39, The Public Opinion, 2 Hagg. Adm. 398, and The Eliza Jane, 3 Hagg. Adm. 335, the court of admiralty refused jurisdiction, because the cause of action had arisen within the body of a county. But by 3, & 4 Vict. c. 65, § 6, it is enacted that the high court of admiralty shall have jurisdiction to decide all claims of salvage, damage, or towage, relating to any ship or sea-going vessel, and for necessaries supplied, etc., whether such ship was within the body of a county or on the high seas at the time when the cause of action in their turn, are in force if within the requirement and purview of the Constitution, and void if they exceed or violate the Constitution. The first question, therefore, is, does the word admiralty mean, or necessarily imply in our constitution or in this country, what it undoubtedly meant in England, and therefore, as it may be fairly argued, in these States when they were colonies of Great Britain? It seems probable that no question of this kind, in regard to the jurisdiction of admiralty as affected by place, suggested itself to the framers of the Constitution; nor did any case come beaccrued. And by 9 & 10 Vict. c. 99, § 40, said court has jurisdiction to decide all claims whatever, in the nature of salvage, to articles found at sea or on shore, and whether the services have been performed at sea or within the body of a county. By the 3 & 4 Vict. c. 65, questions of title and of mortgage, claims to proceeds in the registry, may be decided in said court, witnesses may be examined by word of mouth, and their attendance compelled. In The Alexander, 1 W. Rob. 288, it is held that it was not necessary that the claim should have arisen since the passage of the statute in order to give the court jurisdiction. In The Fortitude, 2 W. Rob. 217, it is held that the enabling power given to the court by the 3 & 4 Vict. c. 65, §§ 3, 4, does not extend to all questions arising out of a mortgage (as mortgagee's right to freight), but is confined to the ship itself being mortgaged. In the case of A Raft of Timber, 2 W. Rob. 251, under the 3 & 4 Vict. c. 65, § 6, the court refused to entertain a suit for salvage of a raft of timber, on the ground that it was neither a ship nor a sea-going vessel. But the 9 & 10 Vict. c. 99, § 40, above quoted, would now give the court jurisdiction. In The Flecha, 1 Spinks, Adm. 438, where a steam vessel which plied regularly between Ghent and London, was supplied with a new propeller, it was objected that as the vessel could have made her voyage in safety with her old propeller, the new one was not "a necessary" within the statutes, and consequently the court had no jurisdiction. But Dr. Lushington said: "I cannot accede to that proposition, for I think there is a necessity to make such vessels perfect and seaworthy in all respects. The opinion of the court will always be that these vessels, to which the lives of passengers are intrusted, should be constantly kept in that state of repair which most conduces to their safety." 1 The Constitution of the United States, art. 3, § 2, provides that the judicial power shall extend "to all cases of admiralty and maritime jurisdiction." And the Judiciary Act of September 24, 1789, c. 20, § 9, provides that the district courts shall have "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 upon the high seas; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it," etc. 1 U. S. Stats. at Large, 76. |