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March 2, 1827


APPEAL from the Circuit Court of Maryland. This was a libel filed in the District Court by the appellant, Ramsey, against the respondent, Allegre, alleging that the appellant, at the special instance and request of the respondent, owner, ship's husband, or consignee of the schooner Dorothea, had performed various work and labour, and found and provided various materials for the use of the said schooner, to equip and prepare her for a voyage on the high seas, amounting to the sum of 2,428 dollars, 84 cents; that the appellant had often applied to the respondent for payment, and been refused; and praying process according to the course of the Admiralty, &c. A plea was filed by the respondent, alleging, among other things, that he had given the libellant his negotiable promissory note for the debt. It appeared, at the hearing, that the appellant had furnished the materials in question at the respondent's request, and that the latter had given his negotiable promissory note for the same, which the appellant accepted, giving the following receipt therefor: 'Received a note, at four months, which, when paid, will be in full for the above amount.' The note not having been paid, this suit was brought. The District Court dismissed the libel, upon the ground, that the jurisdiction of that Court, as an Instance Court of Admiralty, in the cause, was waived by the acceptance of the promissory note; and the decree having been affirmed in the Circuit Court, upon the same ground, the cause was brought by appeal to this Court.

The opinion of the court was delivered by: Mr. Justice Johnson.

Feb. 19th.

The Attorney General and Mr. Meredith, for the appellant, argued, that the District Courts, proceeding as Courts of admiralty and maritime jurisdiction, might take cognizance of material suits by material men, either in personam or in rem.*fn1 a The only question here was, whether the jurisdiction was waived by the appellant's taking the note as conditional payment. The note did not extinguish the debt, and, consequently, could not affect the jurisdiction which originally attached on account of the nature of the debt. Without some special agreement to consider the note as payment, it could not be so regarded. It only operated as a suspension of the remedy during the time allowed for its payment. If unpaid, the party might resort to his original right of action, as if no note had been given.*fn2 b Such is the doctrine of the common law; and the civil law, which gave the rule to the admiralty, would be found in accordance. A novation is the substitution of a new for an old debt, by which the latter is extinguished. It may be made of a debt payable at a future day, or of a debt presently due, by a new engagement, allowing a term of credit. But the consent of the creditor must be positively declared, as the law will not presume that he means to abandon his rights under the first contract.*fn3 c No authority or principle could be found to warrant the assertion, that, although the original contract in this case was not extinguished, the suspension of the right of action took away the jurisdiction of the admiralty, so that it could not again be resorted to.
Mr. Hoffman and Mr. Meyer, contra, insisted, that the promissory note given in this case was a personal security taken on land, and in all respects assimilated the case to that of the claim for the master's wages. Although, in general, locality might not be the test of admiralty jurisdiction, it might reasonably be contended that where the credit is personal, and the security of a kind exclusively cognizable at common law the locality should fix the jurisdiction. In the case of contracts, the admirality jurisdiction, in personam, ought to be merely co-extensive with the proceeding in rem: and as the domestic character of the vessel freed the thing from jurisdiction, the person of the owner ought also to be exonerated.*fn4 d As a security had been accepted, which had the effect of extinguishing a common law lien during the term of the note, no process could have been instituted in the admiralty on the original contract; and the idea of reviving a jurisdiction, which had been thus suspended, was a novelty not countenanced by any legal analogy. Supposing the jurisdiction of the Admiralty to be dependant upon the existence of a lien as defined by positive law, the authorities would show that such a lien was extinguished at common law by a new agreement.*fn5 e It had been expressly determined, that in cases of dealings or obligations, naturally within the appropriate jurisdiction of the Admiralty, if a special contract be entered into, or a special security be taken, the common law jurisdiction will attach as in ordinary cases, even though the new agreement does not operate technically by way of extinguishment.*fn6 f

March 2d.

Mr. Chief Justice MARSHALL delivered the opinion of the Court: that, as it did not appear by the record, that the note had been tendered to be given up, or actually surrendered, at the hearing in the Court below, the decree would be affirmed, it not being necessary to consider the general question of jurisdiction.

I concur with my brethren in sustaining the decree below, but cannot consent to place my decision upon the ground on which they have placed theirs. I think it high time to check this silent and stealing progress of the Admiralty in acquiring jurisdiction to which it has no pretensions. Unfounded doctrines ought at once to be met and put down; and dicta, as well as decisions, that cannot bear examination, ought not to be evaded and permitted to remain on the books to be commented upon, and acquiesced in, by Courts of justice, or to be read and respected by those whose opinions are to be formed upon books. It affords facilities for giving an undue bias to public opinion, and, I will add, of interpolating doctrines which belong not to the law.

There need be no stronger illustration given than this case affords. Here is a libel, in personam, on a contract, in the Admiralty filed expressly upon the authority of the case of The General Smith. I had never read the report of that case, that I recollect, until the argument in this cause; or, if I had, I attached so little importance to any thing in it besides the point that it decides, as to have forgotten that such doctrines were to be found in the reports of our decisions. But, upon being examined, what does it amount to? A gentleman of the bar, whose knowledge, particularly in the Admiralty, commanded the highest respect in this Court, is reported to have laid down a doctrine in very explicit terms, which, I will venture to say, has no authority in law; and the Court, carried away probably by the influence of his concessions, echoes them in terms which are not only not called for by the case, but actually, as I conceive, contradicted by the decision which is rendered.

The correctness of the decision in the case of The General Smith, cannot be questioned; it dismisses the libel upon the ground, 'that material men and mechanics, furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands.' But why have they no lien upon the ship? or, to speak more correctly, why are they precluded from a remedy in the Admiralty for subjecting the ship to arrest and sale in order to satisfy their demands? It is because jurisdiction over the contract has been taken from the Courts of Admiralty, and the exercise of jurisdiction, in such a case, prohibited to them by the common law Courts of Great Britain for hundreds of years. And it is a fact of the most positive certainty and notoriety, that so far from retaining jurisdiction over this contract in personam, after being driven from jurisdiction in rem, that the former was first surrendered, and that in the most unequivocal terms.

I refer to the resolutions of February, 1632, adopted by the King in council, and subscribed by all the judges in England, and to be found in the collection of the sea laws, and in various other books; by the second section of the second article of which it is declared; that 'if suit be in the Court of Admiralty for building, or mending, saving, or necessary victualing of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself party, (i. e. a claimant,) no prohibition is to be granted, though this be done within the realm.'

This resolution implies an express recognition, that if such suit be instituted against the person, a prohibition shall issue. And this I hold to be the test of admiralty jurisdiction; for wherever a prohibition will issue, the jurisdiction has been taken away from the admiralty, or it never possessed it. And, accordingly, for two hundred years has this jurisdiction been abandoned by the British Courts, with the single exception of seamen's wages; an exception, of which it may emphatically be said, 'probat regulam.' For, if any one will take the trouble to refer to the language of Ch. J. Holt, in the case of Clay v. Snelgrave, he will there find it said, 'that it is an indulgence that the Courts at Westminster permit mariners to sue for their wages in the Admiralty Court, because they may all join in suit, and is grounded upon the principle, that 'communis error facit jus." (Lord Raym. 576.)

This privilege is denied to the master, and even to a mate succeeding to the master, when he sues for his wages as master; so rigid are the Courts of Westminster in confining the admiralty to the few contracts over which it is permitted to retain jurisdiction. And when it is argued, that this discrimination to the prejudice of the master, is confined to his suit in rem, and that no case can be found in which his remedy in personam, in the admiralty, has been denied him, it becomes necessary to remind counsel, that this may have proceeded from no one's ever having had the temerity to prefer such a suit–a consequence which would necessarily follow from what I hold to be undeniable, that, except on the contract for seamen's wages, the proceeding in personam upon contracts is now unknown to the British admiralty tribunals.

I will sketch a brief history of the admiralty jurisdiction over contracts, and a view of its present state.

The study of the history of the admiralty jurisdiction in England, in common with that of all the Courts of that kingdom, except the common law Courts, presents an instructive lesson on the necessity of watching the advancement of judicial power, in common with all power; inasmuch as it shows in what small beginnings, and by what indirect and covert means, aided by perseverance and ingenuity, originated the mighty structures against which, ultimately, the legislative and judicial power of the country had to exert the full force of their united efforts.

The vast variety and importance of the subjects which the admiralty had appropriated to itself, will appear in a variety of authors; but I would refer the reader to Godolphin's 'View of the Admiral Jurisdiction,' as well for its antiquity as the great learning and respectability of the author. There, it will be seen, that the admiralty, before the time of Richard II. had arrogated to itself a scope of judicial, legislative, and ministerial power, which withdrew from the trial by jury, and placed under the surveillance of the crown, of which the admiralty was only the representative, more than half the jurisprudence, and particularly the commercial jurisprudence of the kingdom.

The statutes of 13th and 15th Richard II. were passed to set limits to this power, but such was the stability it had already acquired, that it was not until the act of 2 Henry IV. coll which gave to the subject exactly the right which the constitution of the United States gives to its citizens, against unconstitutional laws, was passed, that this overgrown power could be effectually restrained. For it could then no longer prescribe its own limits in prejudice of the individual and to the exclusion of his common law rights. Neither the King nor his proctor could any longer justify or secure the individual who resorted to the Admiralty in a case in which the common law could give redress. (3 Levinz. 353.)

The act of 13 Richard says, upon complaint of encroachments made by the admirals and their deputies, it is enacted, 'that the admirals and their deputies shall meddle with nothing done within the realm, but only with things done upon the sea;' and the 15th Richard, c. 3. 'that in all contracts, pleas, and quarrels, and other things done within the bodies of counties, by land or water, the admiral shall have no cognizance, but they shall be tried by the law of the land.' And the 2d Henry IV. c. 11. provides, 'that he that finds himself aggrieved against the form of the statutes of Richard, shall have his action by writ grounded upon the case against him that so pursues in the Admiralty, and recover double damages.'

The check given by legislative provision was followed up by prohibitions from the common law Courts, and suits under the statute of Henry, until, upon the murmurs of the Lord High Admiral at the checks imposed upon his power, the subject was taken up by the King in council in 1632, and a kind of compromise entered into, to which all the different tribunals appear to have at first conformed; but in which, after a time, the common law judges appear to have discovered, that the crown and the Admiralty had gained too decided an advantage over them to admit of its being adhered to as a correct exposition of the statutes of Richard. Hence, in the 3d edition of Croke's Reports, at the end of the 2d volume, we find these resolutions declared to be of no authority, as undoubtedly they were not, since it was not a regular judicial act. But in this, it must be noticed, that the authority denied to those resolutions was not on the subject of those powers which the Admiralty renounced, but of those which they retained.

Upon this ground, it is well known, that these resolutions, although printed in the 1st and 2d editions of Croke's Reports, were omitted from the 3d. The mantissa at the end of the edition of 1767, declares their rejection as authority. But, even before the adoption of those resolutions, a decision had taken place, which was conclusive, as well against their jurisdiction over the particular contract here under consideration, as against their right of proceeding upon it by process in personam.

I allude to Craddock's case, (2 Brownl. 37.) which was decided in the 7th of James, or in the year 1608, twenty-four years before the date of these resolutions. This was listinctly the case of a material man; his purchases were of cordage, powder, and shot, for a ship, and the party of whom they were bought sued Craddock in the Court of Admiralty. A prohibition was granted, and the reason assigned by the Court is, that the statute 13 Richard II. 'that the admiral shall not meddle with things made within the realm, but only of things made upon the sea, and here the contract was at St. Katharine's Stairs, in the body of a county.' And thus we see, that in the resolutions alluded to, the claim to jurisdiction in personam, denied the Admiralty by the effect of that adjudication, is abandoned by them; at the same time that they assert the right to exercise jurisdiction in rem upon the same class of contracts. It was not long after, however, that the exercise of jurisdiction in rem was also taken from them. And yet there is a semblance of authority for their having exercised it during the interval of time between the adoption of the resolutions of 1632, and when they were declared to be of no authority. I allude to that quotation from 1 Rolle's Abr. 533. which is copied into Bacon's Abridgment, p. 196. of the 1st vol. and there, together with the note which refers to Cro. Charles, 296. has remained the permanent source of many an error to those who have not taken the trouble to examine into the authority for the law there laid down.

This subject will be found learnedly examined in the cases of Clinton v. The brig Hannah and ship General Knox, decided in the Admiralty by Judge Hopkinson, of Pennsylvania, in the year 1781; and by Judge Bee in the Admiralty of South Carolina, in the case of Shrewsbury v. The sloop Two Friends, in 1786; in both which cases the authority of those quotations is rejected, and the lien of the shipwright to sue in rem in the Admiralty denied. (Bee's Adm. Rep. 419. 433.)

Both those cases go to show the law of this subject at the adoption of our constitution, and they merit high respect, both for the known abilities of the judges who pronounced them, and the intrinsic learning they display. They show plainly, that the quotations mentioned rest altogether on the authority of the resolutions of 1632, to which certainly no lawyer will attribute authority any farther than they go to show, that the Admiralty did not even then pretend to the jurisdiction in personam upon contracts at all, and upon very few even in rum.

It may seem surprising, that from the time of Richard the Second down to the beginning of the 17th century, the jurisdiction of the Admiralty Court should have attracted so little of the attention of the common law Courts. One principal cause will be found in the civil wars, and the low state of commerce; and when the nation returned to a state of tranquillity, the power and vigour of her monarchs left little scope for legislative or judicial action. Yet there are cases to show, that the subject was not forgotten; and when the increase of commerce, and the weak reign of the Stewarts, presented a motive and an opportunity, that the attention of the nation was attracted to the usurpations and unconstitutional power exercised by that Court.

It is obvious, also, from the cases and discussions of that day, that the common law Courts were embarrassed by a technical difficulty, arising out of the necessity of laying a venue to every action. As soon as this was removed, (and the advocates of the Admiralty murmur very much at the supposed absurdity of removing this absurdity,) the progress of the common law Courts was rapid in wresting from the Admiralty every species of contract, leaving them none to act upon, on which they could themselves render complete justice according to the established rights of the parties. They are charged with absurdity and inconsistency, but I pronounce the charge utterly groundless; for the one principle runs through all their decisions, that of subjecting to the trial by jury every cause in which that form of trial could be applied without injury to the parties's rights. It is true, that where they found them in the exercise of a power analogous to that of a Court of equity, they did not take from the Admiralty a power which they should only have handed over to another civil law Court; they had no motive, if they had the power, to make the transfer. And hence the Admiralty is left in the exercise of jurisdiction in cases of hypothecation, bottomry, and a kind of specific execution between part owners of ships. Their jurisdiction of prize and salvage are royalties, and that over seamen's wages is a peculiarity, but perfectly reasonable and consistent, in whatever light it be viewed. In the sea laws it is called 'a custom of the realm.' Ch. J. Holt, we have seen, puts it on the ground of a positive concession and communis error. And the judges often say, 'we permit them to exercise this jurisdiction, because they may sue together there, and must sue seyerally in the common law Courts, and there they can have remedy upon the body of the vessel, which they cannot have here;' thus placing the exception in their favour upon the conceded ground of incapacity in the common law Courts to do complete justice, and the equitable ground of preventing a multiplicity of suits.

My own opinion is, that it stands on a much higher ground, and has its basis in the same policy which makes their wages to depend on the safety of the ship they navigate, by giving them, in that event, every possible chance of getting compensated. To which we may add, that their thoughtless character and ignorance renders them emphatically the wards of the Admiralty, while the law on which they earn or lose their wages is a system of the Admiralty. The assertion of the general principle against the captain's contract, finds its solution in his right to receive the freight in preference even to his owner, and thus to pay himself; and in the perfect competence of the common law Courts to do justice in his contract with the owner. In the case of ransom, he still may resort to the Admiralty, and proceed in rem.

But, right or wrong, it is not to be questioned at this day, that the Admiralty have lost their jurisdiction over contracts, with the exceptions stated. The most animated advocates of the Admiralty do not deny this. They mourn bitterly over its fall, but uniformly acknowledge that they are eulogizing the dead. In Godolphin, Sir Leoline Jenkins' Works, and the collection of the Sea Laws, will be found all in substance that ever was said on this subject. Yet they all unequivocally acknowledge that its jurisdiction has long since been at an end over contracts, and in personam, with the exceptions I have stated; while they dwell eloquently on the folly of plucking this 'diamond from the crown;' and enlarge greatly on the inconvenience of leaving to a jury the decision of causes which could be so much more advantageously disposed of by a single Judge, and by a system of laws peculiar to the Admiralty Courts; and arraign with severity the inconsistencies, absurdities, and unkindly feelings, with which the common law Courts have stripped the Admiralty of its ancient and eminent power. Even Brown, the modern champion in Europe of the Admiralty jurisdiction, but who obviously has only caught the feelings, and borrowed the arguments of those who have gone before him, is forced reluctantly to acknowledge that the Admiralty has for ages been stripped of these powers, though he would spare no effort to restore them if he could. (See Appendix to his 2d vol. and note at the end, said to be omitted at p. 100.)

It has sometimes been contended that the decisions of the common law Courts, as exemplified by their granting prohibitions, is not conclusive against the Admiralty jurisdiction–that it is a disputed jurisdiction, and therefore that the Admiralty judges themselves should be heard in this 'Litis Contestatio.'

But this is obviously incorrect; for the Court of King's Bench, by its acknowledged jurisdiction, as exemplified in the very exercise of its power to prohibit, is the very source to which we are to look for lights to determine the respective powers of the inferior Courts. And the decisions that have taken place on this subject, are nothing less than judicial expositions of the statutes which limit the powers of the Admiralty. They amount to the construction and application of the law of the realm, of the statute law, and are therefore conclusive. So every lawyer knows they are held to be in the British Courts; and together, they make up that system of law which, by universal consent, was adopted in the Admiralty Courts in this country before the revolution, at least on the subject of jurisdiction over contracts, and in personam. I will now take a brief view of some of the leading decisions, in England and in this country, on the subject of contracts.

The quotations I shall first make have two objects in view; first, to show that the particular contracts under consideration, to wit, of material men, have been denied to their jurisdiction; and secondly, that, in every instance in which they have been prohibited from the exercise of jurisdiction over contracts, it has been upon a ground that is fatal to the exercise of jurisdiction in this and similar causes.

On this latter subject it would be unnecessary to search further than that article in the 4th Inst. (138. 141.) in which Sir Edward Coke gives a detailed account of his own answers to the complaints of the Lord High Admiral to the King, against the restraints then recently imposed by the common law Courts upon his jurisdiction. This was early in the reign of James the First; and notwithstanding the revival of the clamours against that learned judge on the same subject, I cannot but express the opinion that it is a calm, dignified, learned, and triumphant answer. The authorities which he cites are valuable for their antiquity, as they show that the Courts in his time were only treading in the steps of those who had preceded them.

Thus, to prove that charter parties were without their jurisdiction, he cites Hare v. Unton, (31 Hen. VI.) and observes that there were an infinity of cases to the same point.

To prove that policies of insurance were not of Admiralty jurisdiction, he cites Crane & Pell, (38 Hen. VIII.)

To prove that maritime contracts, notwithstanding a foreign origin, are not to be taken from the common law Courts, he cites 28th, 39th, and 40th Eliz.

And finally, it is important to advert to the manner in which he explains the rule by which it is to be determined whether any given contract is or is not of Admiralty jurisdiction; which is no other than by showing from adjudged cases, that the common law Courts have exercised and can exercise jurisdiction over the same contract. (p. 141.)

Sir Matthew Hale, in his History of the Common Law, when sketching the jurisdiction of the Admiralty, says, 'the jurisdiction of the Admiral Court, as to the matter of it, is confined by the laws of this realm to things done upon the high sea only; as depredations and piracies upon the high sea; offences of masters and mariners upon the high sea; maritime contracts made and to be executed upon the high sea; matters of prize and reprisal upon the high sea. But touching contracts or things made within the bodies of English counties, or upon the land beyond the sea, though the execution thereof be in some measure upon the high sea, as charter parties, or contracts made even upon the high sea, touching things that are not in their connexion maritime, as a bond or contract for payment of money, &c. these things belong not to the Admiral's ...

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