law. Mr. Justice Washington, who was upon the bench at the time of The General Smith, when referring to it five years afterwards, in The President,1 does not treat it as having decided that the maritime law gave no lien in the case of a domestic ship, but as having been decided upon the local jurisprudence of Maryland, which was the common law, and seems to consider it probable that the maritime law makes no distinction based on the domicile of the owner, either in England or America, certainly, as still an open question. The same view of The General Smith seems to have been taken by Mr. Justice Thompson in The Robert Fulton,2 by Judge Betts in The Hilarity 3 and in The Infanta, and by Judge Hopkinson in The New Brig.5 If we are right in our view of the character and scope of the decision in The General Smith, it was practically overruled in The Lotawana. For, holding that no lien had been secured under the Civil Code of Louisiana, which would have settled the question in this case, as it did in The General Smith, the court takes up, as the point on which the case must turn, the question whether there is a lien by the general maritime law. In other words, while The General Smith decides that there is no lien upon a domestic vessel, unless given by the local law of the state, in The Lotawana the court makes the case turn upon the point whether, in the absence of a lien by the law of the state, there is one by the general maritime law of the republic. It is not surprising that at so early a period as 1819, the Supreme Court should have held that the law of a state must govern a case of repairs done within its limits upon a vessel belonging to its inhabitants. The court was then under the influence of a false analogy, which governed it from the beginning, until the cases of The Commerce and The Belfast,7 after 1861, when the analogy was discarded. This was the supposed analogy between the legislative power over commerce, which the Constitution gives to Congress, and the judicial power, which it gives to the courts. of the republic over all admiralty and maritime causes. The former being confined to foreign and inter-state commerce, it became a kind of axiom of the court that its admiralty and maritime jurisdiction had the same limitation. This was announced by 1 4 Wash. p. 456. 6 1 Black, 574. 2 1 Paine, 625. 7 7 Wall. 624. 31 Bl. & How. 90. Mr. Justice McLean, in The Lexington,1 and afterwards in Nelson v. Leland; 2 Mr. Justice Nelson, in The Fashion, and again in The Goliah. It was not until the cases of The Commerce, in 1861, and The Belfast, in 1868, that, in opinions delivered by Mr. Justice Clifford, the analogy, as a measure and test of admiralty jurisdiction, was discarded, and that jurisdiction placed upon its true ground, the maritime character of the transaction, irrespective of state lines, decisions for which it is not too much to say that the gratitude of the profession and the public are due. It would, indeed, have been very unreasonable to hold that, if the State of Texas had extended to the Pacific, a ship bound from Galveston round Cape Horn to her supposed Pacific coast would not be the subject of admiralty jurisdiction, when a steamer would be subject to it which was plying hourly between New York City and Hoboken. This notion that the admiralty jurisprudence of the courts of the republic should not be applied to cases which concerned only the interests of parties residing in the state within whose territory the transaction occurred, received a good deal of aid and countenance from the jealousy of national authority as against state authority, then existing, and from what still remained of the early bias against the court of admiralty. The removal of these supposed limits to the application of admiralty jurisprudence, and the dying out of this bias and prejudice, account for the course taken in The Lotawana, in disregarding the local law of the state as a final test, and trying the claim by the test of the general maritime law. If our view of The General Smith is correct, it follows that the court was not entitled to treat that case as a direct and conclusive authority on the point in issue, namely, whether the lien existed by the general maritime law. Certainly the court had an opportunity to throw great doubt upon its authority on that point, and to feel itself justified in treating the question as an open one, in view of the great changes made in the treatment of all analogous questions of admiralty jurisprudence since 1819. Mr. Justice Clifford, in his opinion, with frankness, and with a brave disregard of the esprit de corps of the court (if we may intimate that there be such a thing), presents these changes, these aban 16 How. 344. 3 Allen v. Newberry, 21 How. 244. 2 22 How. 50. 4 McGuire v. Card, 21 How. 248. donments of long-cherished maxims, these retractions of dicta and reasonings, all tending in one direction, and warranted by one scientific and philosophic principle, as reasons why the court should not allow itself to be fettered by a case so old, if not antiquated, as The General Smith, the opinion in which, he says, "is more unsatisfactory than any one ever given, in a commercial case, by that learned judge." That such should have been the history of admiralty decisions in this country is not surprising, and is not discreditable to our judges. Admiralty jurisprudence is peculiar in its origin, history, principles, and methods. Although, as Chief Justice Marshall said, "it is as old as navigation itself, and, as it has existed for ages, is applied by our courts to the cases as they arise;" still it has been, until recently, in America as in England, a.kind of exotic, whose character and habits are known to but few. It requires a kind of acclimation, and a habitude in its atmosphere, to enable a jurist to deal with it easily and instinctively. Familiarity with it was for a long time confined to a few lawyers on the seaboard. And there has hardly been time, since its extension to the great lakes and rivers, for a professional generation in the interior to come to maturity under its influence. Our lawyers have been educated under the two prevailing systems of jurisprudence, the common law and chancery; and the more thoroughly they are imbued with the spirit of those systems, the less likely is it that, at middle life, they can become really good admiralty jurists, by the occasional study and treatment, in a special and sporadic way, of such admiralty causes as drift into the gurges vastus of constitutional, statutory, common-law, and chancery causes, upon which our federal judiciary is embarked. Sometimes a judge, as is the case of Mr. Justice Clifford, feeling that his administration is to be chiefly in a maritime circuit, will address himself, with pride and satisfaction, to this department of study and practice; but it cannot be expected, and ought not to be required of all, or even of many judges, beyond the district courts of certain localities. It is creditable to our judges that, educated under other systems, and burdened by a greater variety of subjects than any tribunals of modern times have had to deal with, they have brought into form, and placed upon deep and wide foundations, the admiralty jurisprudence, however slowly, and after however many conceded mistakes, the work has been accomplished. It may be asked why, if our view of The General Smith is the correct one, it should have so long been accepted as an authority against the lien. It is enough to say, in reply, that the decision precluded the raising of the question. The effect of remitting all claims for maritime liens on domestic ships to the local law of each state was the same, practically, as would have been the effect of a decision that there was no lien by the general law. Then, the Admiralty Rule XII., of 1844, forbade proceedings in rem in the case of repairs on domestic ships, unless a lien was given by the local law, and, as amended in 1859, it forbade all proceedings in rem for repairs put upon domestic ships, whether the local law gave a lien or not; and this rule was in force until amended in 1872. Therefore the question could not be raised, except in defiance of a rule of the Supreme Court. We have no doubt that this rule was a usurpation, for it undertook to settle law by abstract rules, and to forbid persons from attempting to avail themselves of an interest and privilege vested in them, by the only method possible to them, indeed, by a method which was an essential part of the right. We cannot doubt that it would have been the duty of a district judge to ignore the rule, if a litigant had insisted upon trying his right. But such a contest was not likely to be provoked. After explaining the rule as correcting an erroneous decision,1 and two years afterwards denying that it was intended to correct any error, and defending it on the ground that a proceeding in rem was only a matter of process, and one of several methods of enforcing rights, which the court could regulate by rule,2 then defending it on the ground that the enforcement of a state lien in a federal court was a matter of mere comity, which the Supreme Court could regulate by rules,3the court came at last to see that the rule was not defensible on any ground. As an attempt to lay down law and correct past decisions on the rights of parties, it was a usurpation. As it is now admitted that "a lien is a right of property, and not a mere matter of procedure; "4 that a proceeding in rem is "not a simple remedy, but a substantial right, of which, if a party is deprived, he in effect loses his lien; "5 and as it began to be seen that "no 1 Mr. Justice Nelson, in The Goliah, 21 How. 248. 2 Chief Justice Taney, in The St. Lawrence. 4 Mr. Justice Bradley, in The Lotawana. 5 The Kate Tremaine, 5 Benedict, 69. Ibid. rule of court could, in my opinion, destroy the right of this libellant to his procedure in rem against the vessel for this demand," 1 the Supreme Court felt that it could not be defended as a regulation of practice. Having acknowledged in The St. Lawrence and The Potomac that it is competent for a state legislature, in certain cases, to create a maritime lien enforceable in a court of admiralty of the United States; and having decided, in The Moses Taylor, The Hind, and The Belfast, that the right to enforce a maritime lien is exclusive in the courts of the republic,-it was in vain to say that a citizen of the United States having such a lien, enforceable only in the admiralty courts of the republic, entered those courts as a matter of comity, at the discretion of the judge, which might be regulated by rule. So, in 1872, all the prohibitory part of the rule was repealed, and no obstacle was put in the way of parties claiming maritime liens testing their rights in the admiralty courts. So strong was the belief in the right to a lien. for repairs on ships engaged in maritime commerce, irrespective of the state domicile of an owner, that suits to enforce such liens sprung up immediately in almost all parts of the country; and the district judges entertained the suits, and almost, if not quite, without exception, sustained the liens, or, at least, treated the question as fairly open, and a decision in their favor by the Supreme Court as quite probable.2 We are not aware that there has been one decision in a district court adverse to the lien, since the modification of the rule. This seems to us a sufficient answer to the suggestion of acquiescence in the doctrine of The General Smith. There are difficulties on the subject of domestic ships and home ports, as distinguished from foreign ships and stranger ports, especially under our system of general and state governments, to which the attention of jurists and legislators ought to be given. The "home port," as we have said before, formerly meant, and still properly ought to mean, and means, under the Act of 24 Vict., the port at which the vessel returns to the custody of her owner, and is no longer in itinere. At that port, the enterprise is usually ended, and it is often uncertain what a ves 1 Feronia, 17 Am. L. T. R. 622. Sce also The Eledora, 2 Ben. Ad. R. 35. 2 The Augusta, 5 Pac. Law Rep. 230; Hoffman, J., in note to The Harrison, 2 Abb. U. S. Rep. 74; The Commonwealth, 6 Chig. L. News, 334; The Champion, 7 ib. 1; The J. A. Travis, ib. 275, &c. |