courts over cases of necessaries to ships in British ports, with exceptions to be noticed hereafter. The acts make no distinction between proceedings in rem and in personam as to these

cases.

The sections give jurisdiction in various classes of cases, as wages, salvage, title, &c., and the concluding section of the Act of 1861 is as follows: "The jurisdiction conferred by this act on the high court of admiralty may be exercised either by proceedings in rem or by proceedings in personam." The proper construction of this statute is, that certain classes of transactions occurring in British ports, which the common-law courts held to be not maritime, and excluded by their prohibitions from the jurisdiction of the admiralty courts, are now restored to that jurisdiction, and those courts, administering the admiralty jurisprudence in such cases, will proceed in rem or in personam, according as by that jurisprudence there is or is not a tacit hypothecation in the particular case. Parliament allows the jurisdiction in all cases of necessaries furnished to ships in Brittish ports, not being the "home port," primâ facie, and throws upon the objector the burden of proving that, at the time of the institution of proceedings, there is an owner domiciled in England. If so, the case is left where it stood under the prohibitions of the King's Bench; that is, it cannot be subjected to the admiralty jurisprudence. The conclusion of the whole matter in respect to liens by material-men, for service rendered in British ports, is this: the courts of admiralty held the cases to be within admiralty jurisdiction, subject to admiralty jurisprudence, which jurisprudence gives the tacit hypothecation irrespective of the residence of the owner. The common-law courts held that such cases were not maritime, not subject to the cognizance of admiralty courts, and not to be governed by admiralty jurisprudence. The common-law courts enforced their doctrine by the vis major of prohibitions, and the admiralty courts yielded the cognizance of the cases, under protest, without changing their doctrine that the admiralty jurisprudence gives the liens in question. The effect has been that all cases of repairs in British ports have passed under the common-law jurisprudence, for some six generations, and no tacit hypothecation has been recognized or enforced in England in such cases, for that period, whether the ship was foreign or domestic, whether the owners were aliens or British subjects, and

whether present or absent, and with no reference whatever to what might be their pecuniary credit, or to what the material-men knew or thought about it. At length, Parliament took the matter in hand, and effected a practical settlement of the question. It adopted neither the admiralty side nor the common-law side of the controversy exclusively. It drew a line which neither party to the controversy had drawn. It allowed the admiralty to take jurisdiction of such cases, and to apply to them its jurisprudence, unless the service was rendered at the home port, or it appeared that some owner had an English domicile at the commencement of the suit. If such a domicile appeared, the cases remain where the prohibitions put them, that is, subject to the jurisprudence of the municipal law of England. This is equivalent to a supreme direction that thereafter, if all the owners have foreign domiciles, there is a lien or not according to the principles of admiralty jurisprudence; but if any owner is domiciled in England, the case is to be subject to a system which knows no lien.1 If a future act of Parliament should provide that all cases of repairs and supplies to ships in British ports should be subjects of admiralty jurisdiction, irrespective of the domicile or presence of any owners, the admiralty courts would have to decide whether, according to admiralty jurisprudence, there was or was not a tacit lien in the particular case. They would, doubtless, hold that, by the general admiralty law, as originally and for a long time applied in England, -the mere fact that an owner was domiciled somewhere within the realm, or that the ship was a British vessel, would not exclude the lien. They would have to determine whether the fair result of the later legislative and judicial history of the subject was such as to clearly make the admiralty law of England an exception from that of the rest of the commercial world, in that particular.

We are not unmindful that any person acquainted with admiralty law will find among the dicta, and even the decisions, of British judges, including the common law and chancery judges sitting in Privy Council and there finally deciding admiralty causes, as well as in the writings of commentators, a great deal

1 The English decisions on this statute are inconsistent and unsatisfactory. See The Ella A. Clark, Br. & L. 34; The Two Ellens, L. R. 3 Ad. & Ec. 345, and 4 Pr. C. 161, where a committee of chancery and common-law judges overruled Dr. Philli

more.

that is discordant and perplexing respecting home ports, foreign owners, absent owners, and credit given, presumptions of trusting to the vessel, as well as respecting the lex loci and corpus comitatus; and will sometimes find it said that lien or no lien depends upon the credit given to ship or owner, and that that depends upon whether the owner is present or absent, or upon the place of his domicile. We are sometimes told that if his domicile is anywhere within the realm, there is a conclusive presumption that the work was done on his personal credit. If he lived in London, and the work was done in the Hebrides, it must have been done upon his personal credit only, and exclusive of any reliance upon the ship; which seems to require a further conclusive presumption, that the credit of every man domiciled within the realm must be perfectly good. Again, we are sometimes told that the presumption of personal credit where there is a British owner is only a prima facie presumption, and may be rebutted by proof of the facts, with the implication that, if his credit was bad or unknown at the port of repairs, the tacit hypothecation would arise. Other judges or commentators have referred the whole matter to the principle of lex loci; and have contended that if the transaction, whether tort or contract, took place in England, the question of lien or no lien depended upon the common law of England, even in case of a foreign ship, and, a fortiori, where all the parties in interest, as well as the vessel and the locus in quo, are British. This assumes that there is but one lex loci of England which could be applicable to vessels in British ports, and that that lex was the common law administered in the common-law courts, and does not include the admiralty law as administered in the admiralty courts. Others, again, assuming that there is but one system of jurisprudence in England applicable to such cases, have contended that by that jurisprudence there is a lien for repairs in a British port, if the owners are non-resident, and otherwise not. The best study we have been able to give to this question and its history does not lend countenance to any of these views. It leaves us in the belief that, in respect to repairs in British ports, as in other cases of services or injuries done therein, the controversy has been whether the cases come properly, according to their nature and locality, under the cognizance of the tribunal whose jurisprudence sustains the tacit hypothecation, or under the cognizance of one whose

jurisprudence ignores it, and that Parliament has, at last, intervened and effected a practical settlement, by the test of the domicile of the owner, giving to the former tribunal the cognizance of such cases where no owner is domiciled in England, and to the latter tribunal the cognizance of all others. It will be observed that this practical settlement is absolute and arbitrary, applying the term "home port" in the original and strict sense of neighboring residence. It remits cases of non-resident owners to the admiralty jurisdiction and jurisprudence, and transactions at the home port, or cases in which, at the time of the suit, there are owners domiciled in England, to the common-law jurisprudence, as distinguished from that of the admiralty, and the rights of parties are determined and enforced accordingly.

In Scotland, whose jurisprudence is based on the Roman law, and whose courts have general jurisdiction, and recognize and enforce tacit hypothecations, the question presents itself differently. The courts recognize the hypothec for repairs, without distinction as to the domicile of the owner of the vessel. Toward the close of the last century, when, under the act of Union, an appeal lay to the British House of Lords, a case was taken to that tribunal, the decisions of the Scotch courts overruled, and the new principle introduced, excluding the lien if the repairs were made in the home port of the vessel.1 This decision seems to have been regarded by the Scotch commentators as a piece of judicial legislation, for the purpose of bringing the Scotch law into conformity with that of England. The Act of 19 Victoria, c. 60, applicable only to Scotland, provides that all ports in Great Britain and Ireland shall be deemed home ports of a vessel in case of repairs made in a Scotch port. This is one of those fictions by which British jurisprudence, in way, is fond of reaching its results. sel, in the sense of the maritime law, is the port on arrival at which the vessel ceases to be in itinere, and comes within the actual custody and control of the owner, and the stricter exigencies of commerce lose their influence on the rights of parties. The vis major of the House of Lords alters the Scotch law, and excludes the hypothec for repairs done at the home port, and the vis major of Parliament makes the whole realm one home port in the case of a Scotch material-man. The result of this circuitous

its practical and empirical The "home port" of a ves

1 Hamilton v. Wood, House of Lords, 1789.

action is a rule which, stated scientifically, is that there shall be no hypothec for repairs put upon a British vessel in a Scotch port. But the testimony of Scotland is in favor of the hypothec, as a question of, historic jurisprudence.

We are now brought to the history of the question in the United States. It has long been settled that the tribunals which, under whatever name, administered the admiralty jurisprudence in the American colonies, were not subjected to the restrictions put by the King's Bench, or even by the acts of Parliament, upon the court of the Lord High Admiral in England. It seems equally clear, and is tacitly conceded in the opinion of the court in The Lotawana, that the admiralty jurisprudence was applied to cases of repairs in the ports of the colonies, and there appears no trace of a distinction made by that jurisprudence, as to the maritime lien, based upon the domicile of the owner. And it is also settled that the grant of judicial power over "all cases of admiralty and maritime jurisdiction," given in the Constitution to the judicial department of the republic, is not to be limited or measured by the actual condition to which the King's Bench had succeeded in reducing the Lieutenant of the Lord High Admiral in England proper, at the time of our Revolution. On the contrary, the judicial power of the courts of the republic extends over all cases which are by their inherent nature, and by their judicial history among civilized commercial nations, and especially by the practice in our own colonies, admiralty and maritime causes. It must also be considered as beyond question that when our admiralty courts take jurisdiction of a case, as being an admiralty and maritime cause, they must adjudicate it according to the principles of admiralty jurisprudence, and not according to the jurisprudence of the English common law or of the English chancery. In The Lotawana, it was agreed by the whole court, majority and minority alike, that a case of repairs put upon a vessel engaged in maritime commerce constitutes a cause of admiralty and maritime jurisdiction. The entire course of reasoning in the opinions given by the minority and majority alike assumes that, in such a cause, the rights of parties are to be determined by the admiralty jurisprudence. The only question, therefore, was whether in a case conceded to be within admiralty jurisdiction, and to be governed by admiralty jurisprudence, this tacit hypothecation existed. This statement is of the utmost