22

SINCE LORD STOWELL'S TIME.

of attention and examination. These rules of navigation, as well as those of the United States, adopted by Congress in 1864, will be found in Appendix (B).

Thus, therefore, the English Statute Law will be found mainly in the six acts now known and cited as 3 and 4 Vict. chap. 65; 6 and 7 Vict. chap. 38; 17 and 18 Vict. chap. 78 and 104; 22 and 23 Vict. chap. 6; the New Practice Act, 24 Vict. chap. 10, 1861; 25 and 26 Vict. chap. 63, being the Merchant Shipping Act amendment act of 1862; and the rules of 1863.

In England, down to the time when Lord Mansfield became chief justice, November 8, 1756, and during his entire administration, as well as for centuries previous, there is hardly a shade of difference perceptible in the meaning of the words "admiralty" and "maritime," and the significance to be attached to them, in judicial proceedings, when they are employed to designate or define jurisdiction. In English dictionaries also, a similar use appears to have been made of them; and therefore the conclusion is arrived at, philologically, that there is no absolute distinction to be made in the application of these terms, either to courts, judges, or judicial proceedings in the English admiralty. Thus, the argument may be taken to be advanced one step, with plausibility, if not with certainty.

Hence, whether a critical or practical view be taken of the subject, or, if it be viewed historically, since the year 1266, when the term "l'Amiral" first appears to have been adopted to designate the commander of a fleet or naval force, there seems to have been an almost unbroken and uniform usage, both in the courts of common law and admiralty, in fixing the meaning of the words "admiralty and maritime." Indeed, there is

scarcely any variation. From 1272 to 1815, such has been the accepted use of the terms; and no other had ever been claimed until the decision given in De Lovio v. Boit (2 Gall. 398). In that case, the judge for the United States First Circuit Court innovated, or judicially attempted to do so. The learned jurist, then presiding in that court, promulgated a novel doctrine and pronounced a decision, which has since been much controverted, and still remains an open question, never having been as yet reaffirmed in the appellate court.

The words "admiralty and maritime " had previously been deemed to have been employed in the Constitution and general Judiciary Act of the United States, as apparently descriptive of the same identical jurisdiction, and for twenty-six years that hypothesis remained undisturbed. But in pronouncing judgment in De Lovio v. Boit, that the United States district courts, as admiralty courts, might take cognizance of suits on policies of insurance, Mr. Justice Story accompanied that decision by an historical exposition, together with an elaborately prepared opinion, in which he reviewed at length the subject of admiralty jurisdiction and its history; confidently concluding, that there existed a clear distinction in the meaning of the words "admiralty" and "maritime," and that the latter, by the framers of the Constitution, and the early legislators under it in 1789, was used, ex industria, to signify somewhat more than the former term "admiralty," in defining the limit and extent of jurisdiction conferred upon the United States district courts as admiralty courts.

And this result was reached by a process, which may be said to be characteristic of that learned magistrate; but not without manifest misgivings as to the entire

sufficiency of any citable authority for it, though himself, evidently, self-confident of the soundness of his own conclusions, and justice of his own interpretation.

The considerations for which this interpretation seemed to him to be demanded were, juridical logic and national policy; while the only authority, avowedly relied upon, was the forms of commissions, as issued to the English vice-admiralty judges, resident in the British colonial dependencies, prior to the American Revolution.

Now, if these considerations, alleged as demanding such interpretation, be sufficient to warrant it, then it is immaterial whether the cited authority be or be not conclusive. But if, on the other hand, the reasons assigned for the given judicial construction be unsound, or even questionable, then the construction claimed to be just and necessary, may be not only unfounded but unwarranted: and, in that view, any authority which happens to be relied upon, may ultimately become not only material, but absolutely essential to sustain such decision. A mere misinterpretation cannot support any adjudication permanently.

In order to test the value of the authority referred to, it will be proper to examine the issued vice-admiralty commissions, and the mode of issuing them as well as the purpose for which they were ordinarily issued. They were usually quite specific; and enumerated, in detail, numerous subjects, many of which were confessedly within the admiralty jurisdiction, while others are not discovered to have been previously known in any admiralty practice, or to be gathered from any admiralty reports, then or now published; and among these others, 1 Vide Appendix (C).

JUDICIAL OPINIONS SINCE 1815.

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so enumerated, one was expressly so introduced, as may be seen in the commission to which reference is made by the court in De Lovio v. Boit. That subject was policies of insurance, and this alone constitutes the authority upon which the interpretation is founded and the decision sustained.

And from this incident, it seemed to be demanded by national policy and judicial logic, that libels on policies of insurance should be determined by the court to be within the cognizance of the United States district courts, sitting in admiralty, and, from the time of that decision, in 1815, its doctrine has been repeatedly sanctioned in the first circuit, during the period for which the learned magistrate, who first pronounced the decision, continued to preside in the court for that circuit. It was affirmed by Mr. Justice Story in 1822, in the case of Peele v. The Merchants Insurance Co. (3 Mason, 27), and reaffirmed by him in 1842, in the case of Hale v. The Washington Insurance Co. (2 Story, 176). It was acquiesced in by District Judge Davis, and has been expressly adopted and adhered to by Judges Ware and Sprague, as established law and the settled rule of practice in the district courts of the first circuit. Moreover the opinion is claimed to have been sanctioned in the second and third circuits; favored by C. J. Marshall and Mr. Justice Washington; by Mr. Justice Thompson, in the Sloop Mary (1 Paine, 673), and deliberately adhered to by its author twenty-seven years after its original promulgation in 1815.

On the other hand, it has been controverted and doubted by Justices Johnson, Baldwin, Campbell, Daniel, Woodbury, and, it may also be added, by Mr. Justice Curtis in The Gloucester Insurance Co. v. Younger. Cer

tainly these judges have all deliberately questioned the general reasoning by which the opinion was sustained (Mr. Justice Woodbury designating it as "mere dicta"), if they have not positively disavowed the decision.

Beside, Chief Justice Taney, still more recently, in a dissenting opinion, drawn up in behalf of a minority of the Supreme Court (consisting of himself and Justices Wayne, Nelson, and Grier), has expressly said, that this decision of the judge of the first circuit has never as yet been followed by the judge of any other circuit. In the case of Taylor v. Caryl, 21 How. 615, referring to 1 Kent, 407 n., in which the author had given a synopsis of subjects for admiralty jurisdiction, including "insurance," the Chief Justice (Taney) says, "It is stated too broadly, broader than the court has sanctioned; for as regards the jurisdiction in policies of insurance, I believe it has never been asserted in any circuit but the first; and certainly has never been brought here for adjudication."

Since, therefore, it appears that some of these lastnamed judges (Wayne, Nelson, and Grier) were generally supposed to be inclined to favor an extended admiralty jurisdiction, it would seem that the chances for an affirmation of the long controverted decision in De Lovio v. Boit by the appellate court, were at least questionable. What may be the judicial action in this respect, of the new judges, Clifford, Swayne, Miller, Davis, Field, and C. J. Chase, is a problem, of which the public and profession are not yet in possession of means to enable them to judge with reasonable certainty. The present organization of the Supreme Court, with its new elements introduced, may materially change the balance of power; and exhibit, in its future decisions, a novel, if