As a preliminary to the understanding of this question, it must be borne in mind that wherever the common law of England is the substratum of jurisprudence, the question of the distribution of functions between courts arises, which arises nowhere else. The courts of the English common law cannot deal with a maritime lien by any direct proceedings for the purpose. If a case of repairs to a ship is submitted to the jurisdiction of the common law, it can be dealt with only as a contract between individuals, ending in a personal debt, which the debtor may be compelled to pay out of any property he may have, and his obligation has no more connection with the ship on which the repairs were made, than it has with the debtor's house or bank stocks. Consequently, to say that a certain case of repairs, or certain classes of cases, are subject solely to the jurisprudence of the common law, is to say that they are attended by no tacit hypothecation or maritime lien. To say that they can be dealt with only in courts of common law, is to say that, whether there be a maritime lien or not, it cannot be enforced. Therefore, in the countries whose jurisprudence is that of the common law, distinct tribunals have been organized, whose jurisprudence recognizes and whose procedures can deal with the maritime lien. These tribunals are known in those countries as courts of admiralty, or courts having admiralty jurisdiction. The admiralty jurisdiction implies and carries with it the admiralty jurisprudence and the admiralty methods and procedures. As Judge Story said: "The truth is, the admiralty and maritime jurisdiction of the courts of the United States given by the Constitution covers not merely the cognizance of the case, but the jurisprudence and principles by which it is to be administered." In England and the United States, therefore, to say that a given case of repairs on a ship is of common-law jurisdiction exclusively, is to withdraw the case from the operation of all those principles of admiralty law which are peculiar to that jurisprudence, and from its peculiar methods necessary for their enforcement. While, to say that the case is one of admiralty jurisdiction, is to say that a party in interest may invoke the peculiar jurisprudence and the peculiar procedures of the admiralty law, administered only in admiralty tribunals. But in countries whose general juris

1 The Chusan, 2 Story, p. 464.

prudence is based upon the Roman law, this distinction of tribunals does not exist, or is not essential; because tacit hypothecations, arising by force of law, as a property or interest in the thing, and effectuated by proceedings in rem, are a part of the general jurisprudence, and can be dealt with by the ordinary tribunals. Such is the case in the maritime parts of the continent of Europe and in Scotland. In those countries, there is but one question, has the actor, or party proceeding, by our general jurisprudence, the right or property in or to the thing which he claims? In England, the question is quite different. If he claims the tacit hypothecation, the first question is, to which system of jurisprudence is his case to be referred? If to the common law exclusively, he can have no such lien, whether his work was done upon a ship or a stage-coach. If it is to be referred to the maritime law, he may or may not have that property or privilege, according to the principles of that law. The noted contest in England between the courts of common law and the court of admiralty, though in form a struggle for the cognizance of classes of cases by the respective courts, was, in its essence, a struggle between two systems of jurisprudence. If the case was one to be governed by the admiralty jurisprudence, it went of necessity into the admiralty court. If it was not to be governed by the admiralty jurisprudence, it must fall to the cognizance of the courts of common law or of chancery. In England, the jurisprudence involved the jurisdiction of the tribunal, and the jurisdiction of the tribunal involved the jurisprudence. It was generally agreed that the test as to which system ought to govern the case was the maritime or terrene character of the transaction. The admiralty courts contended that if the transaction related directly to and was a part of maritime commerce, it was to be governed by the admiralty jurisprudence administered in their courts. In this category they included services rendered or injuries done to vessels engaged in maritime commerce. Accordingly, they claimed jurisdiction over a collision occurring in a British port, or repairs done to a ship in a British port; and, obtaining jurisdiction over the case, they applied to it the admiralty jurisprudence, recognized the maritime lien in the one case as well as in the other, and enforced it by those methods which in England are peculiar to admiralty courts. On the other hand, the courts of common

law contended that the test whether the transaction was maritime or terrene, should be the locality in which the contract was made, or, if there was no contract, in which the act was done. And they admitted that if the locality was the high seas, strictly speaking, the cause was maritime; but they contended that if the locality, although within the ebb and flow of the tide, was yet within the body of a county from which a jury could be drawn, the transaction was terrene, and they contended that every thing within a line drawn between the headlands of a port was within the body of the county. Accordingly, a collision between two ships in the harbor of Portsmouth, whether British or foreign ships, was a terrene transaction, to be governed by the jurisprudence of the British common law, and not by that of the admiralty. The same was the case with repairs put upon a vessel at anchor in the harbor, whether she be a British or a foreign ship. Those courts further contended that if an express contract was made upon land for services to be rendered at sea, that contract was to be adjudicated upon the principles of the common law, and not of the admiralty. They applied this claim to shipping articles, bills of lading, and bottomry bonds, as well as to contracts for repairs. Undoubtedly, the Parliament sometimes lent itself to the common-law side of the struggle, and statutes were made, in early times, intended to take classes of cases from the operation of admiralty jurisprudence, and confine them to that of the common law. The struggle then became, to a great extent, over the construction of these statutes. [It ought not to be necessary to say here, that, in construing contracts and obligations relating to ships and cargoes, the common law recognized a great deal of the law-merchant of the commercial world, and administered it in its courts; but it did not, and could not, enforce or deal directly with the tacit hypothecations of admiralty law, and denied their existence in transactions which were subject exclusively to the jurisprudence of the common law.] Now, it is essential to observe that the common-law courts did not fall into the inconsistency of admitting a transaction to be maritime, and therefore subject to the jurisdiction of admiralty courts, and yet demand that those courts should adjudicate it by the principles of the common law. Nor did they fall into the other fallacy of claiming exclusive jurisdiction over the transaction in their own courts, and yet admit it to be maritime. The

jurisdiction of the court and the jurisprudence to be administered went hand in hand.

Having made clear, as we trust, our view of these preliminary considerations, essential to a proper understanding of the subject, we will proceed to a short statement of its history in England. The controversy was, to which system of jurisprudence shall the subject of repairs to sea-going vessels, in British ports, be referred? The admiralty courts contended that the transaction was essentially maritime, and that a party in interest had a right to invoke the admiralty law. The common-law courts contended that the transaction was not maritime, in the sense of a test between the two systems, and must be referred only to the common law. The admiralty courts admitted that the materialman might, if he saw fit, and, perhaps, must, take his case into the common law, if he wished to vindicate only such rights and privileges as the common law gave him, to wit, a judgment for damages against the other contracting party. But they contended that there were attached to the transaction the rights and privileges which the general maritime law gave, and which the common law did not give and could not enforce, among which was the tacit hypothecation of the ship. The true view of this controversy seems to us to be that the common-law courts admitted that if the transaction came within the admiralty jurisdiction, it was subject to the admiralty jurisprudence, and that that jurisprudence gave the tacit hypothecation in such case; and the admiralty court admitted that if the transaction was solely one of common-law jurisdiction, the common-law jurisprudence followed it, and there could be no tacit hypothecation. The question was not whether, under a single and common system of jurisprudence, there was or was not a tacit hypothecation of a vessel for repairs put upon her in a British port. It was whether the case should be referred to the system which gave the hypothecation, or to the system which withheld it; and that depended upon the inherent nature of the transaction out of which the case arose, as being maritime or not maritime, and the struggle was mainly over what should be the test of what was a maritime transaction. A good deal of confusion has arisen from supposing that the controversy was as to whether, in a confessedly maritime transaction, admitted to be within the jurisdiction of the admiralty, and to be governed by admiralty jurisprudence, the tacit hypoth

ecation arose where the repairs were done in the port of the owner's residence. In the case of The Neptune,1 where a vicechancellor and a judge of a court of bankruptcy, as a committee of the Privy Council, overruled the decision of a judge of admiralty, the bankruptcy judge takes a different view of the question, and thought the controversy must have been as to whether the general maritime law of England gave the lien, and that the objection made by the common-law courts was that the admiralty court misunderstood its own jurisprudence. But we cannot think that this is the correct view. The question was as to which system of jurisprudence governed the case. If the common-law courts had permitted the court of admiralty to take jurisdiction over repairs in a British port by proceedings in personam, and prohibited its proceeding in rem, there might have been some color for the view taken in The Neptune. But they prohibited its taking cognizance of such a case in any way. So, if they had permitted the admiralty court to enforce the lien in the case of foreign vessels, and prohibited its doing it in the case of British vessels, there would be still more color to the position. But they prohibited proceedings in case of foreign vessels, as well as of British vessels, and in personam as well as in rem. The only doctrine which makes the action of the common-law courts logical and consistent is that their position had nothing to do with the nationality of the ship, or the residence of the owner, but made the locality of the transaction conclusive against its maritime character, and therefore precluding cognizance of it by the admiralty courts and the consequent admiralty jurisprudence.

As under the peculiar political system of England, the Court of King's Bench, representing the common-law jurisprudence, has the power of prohibition over the court of admiralty, the contest was practically settled by the vis major; and, under the prohibitions, the admiralty court ceased to take cognizance of cases of repairs on ships in British ports, whether foreign ships or British ships, whether to enforce a personal obligation or a maritime lien. Within this generation the supreme power of Parliament has been brought to bear upon the subject. The Acts of 3 & 4 Vict. (1840) and 24 Vict. (1861), may be described as having generally restored the jurisdiction of the admiralty

1 3 Knapp, P. C. 94.