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themselves against tacit liens. The opinion suggests that if it is desirable to have these liens, the object can be better reached through the legislation of Congress, which can put judicious conditions and restrictions upon the liens, when creating them, by prospective action. If Congress can create the lien, it can qualify and restrict it when recognized by a judicial decision, as well as when creating it. Besides, is it certain that Congress has full power over the subject? Its power to regulate commerce is confined to foreign and inter-state commerce. We cannot doubt its power to create or extend maritime liens in the case of vessels engaged in foreign or inter-state commerce. Can it do so in respect to vessels not so engaged? And would it not be difficult to determine whether a vessel was engaged in such commerce, or in purely state commerce, when in the custody of her owner in what is strictly her home port, when her voyage has ended, or when she is laid up for the season, - conditions under which most repairs at home are made ?
The misfortune attending the decision is that it leaves open the subject of liens on domestic vessels for repairs to state legislation, and reopens the embarrassing questions to which we have referred, of home ports, the domicile of ships, shipowners and lessees, of the limits of the power of Congress, and of the effect of state liens upon American vessels subject to the general maritime law of the republic. If the decision had been the other way, all these questions would have been removed, the whole subject would have been simplified, and, if experience should show the need for restrictions or qualifications, they could be imposed by Congress, either alone, or aided by state legislation, if the principles and practice of the courts would not adequately meet the requirement.
1. The general maritime law of the commercial world gives a tacit hypothecation for repairs upon vessels, and this is irrespective of the domicile of the owner.
2. In England, the contest has been between the two systems of jurisprudence, administered by distinct tribunals. not as to whether the admiralty law of England corresponded with the general admiralty law, or, as an exception therefrom, refused the lien in the case of domestic vessels. The contest
was as to which system of jurisprudence, with its corresponding tribunals, should be referred all such transactions as repairs, collisions, &c., occurring in English ports. If they were to be referred to the municipal jurisprudence administered by the courts of the common law, there was no tacit hypothecation, and this was irrespective of the domicile of the owner or of the national character of the ship. If, on the other hand, they were properly subjects of admiralty jurisdiction, the admiralty jurisprudence went with it, and the maritime lien followed, also irrespective of the national domicile of the owner.
3. The contest was practically settled by the superior power of the common-law courts, which prohibited the admiralty courts from taking jurisdiction over any case of repairs done in England, and this was irrespective of the national domicile of the owner. The admiralty courts submitted under protest. Parliament at last intervened, and adjusted the matter upon the basis that, if the repairs were done at the home port, or there was British ownership, the subject should be adjudged by the common law; otherwise, by admiralty law.
4. The admiralty courts of the American colonies, and of the republic under the constitution, not being bound either in jurisdiction or in jurisprudence by the above-named restrictions put upon the Lord High Admiral's court in England, seem, as a general thing, not to have recognized any distinction in respect to this lien founded upon the state domicile of the owner, or even upon the home port, in its strict sense.
5. In 1819, in the case of The General Smith, the Supreme Court decided that when repairs were made in a port of a state in which the owner resided, the transaction and the interests involved being local and internal, the rights of parties were to be determined, not by the general maritime law of the republic, but by the local municipal law of the state, as exclusive of the former.
6. In 1872, the prohibitions and restrictions under the Admiralty Rule XII. having been removed by an amendment of the rule, the subject was left open for adjudication. Suits were immediately brought in various districts for the enforcement of this lien, in the belief that the change in the rule indicated an intention to acknowledge the lien, or in the expectation that it would be acknowledged on principle.
7. In The Lotawana, the Supreme Court have held, or necessarily implied, that in a case of repairs upon an American vessel engaged in maritime commerce, the rights of parties are to be adjudged by the general maritime law of the republic, and not by the local municipal law of the state. Yet, if the former does not give a lien, and the latter does give it, the parties may have the benefit of it in the admiralty court, if it be in its nature an admiralty lien.
8. The Lotawana decides, or necessarily implies, that there may be cases of transactions, maritime in their character, and coming within admiralty jurisdiction, as to which it is competent for a state legislature to give an admiralty lien ; and that, when so given, it is a property or interest which parties have a right to take into the admiralty courts of the republic for adjudication.
9. The Lotawana decides that where repairs are made at the home port of the owner, the maritime law of the United States, whatever it may be elsewhere, gives no maritime lien. The case was one of a “home port,” in the strict sense; and the court state the doctrine as applicable only to a case of repairs at “ the hone port," without defining the term. The decision is not necessarily an authority on the point whether the term “ home port” is co-extensive with the geographic limits of the state in which is the owner's political domicile ; or, in another form, whether there is no lien if the owner's domicile is in the same state of the Union in which is the port of the repairs.
10. The questions still remain open, - What is the home port ? What bearing upon it have the state domicile of the owner, his national domicile, his municipal domicile, or his place of business? What bearing upon it have the port of the vessel's registration, to which she “ belongs,” under our navigation laws, the state domicile of a lessee or a mortgagee in possession ? And what is the test of home port, where the port to which the vessel belongs includes parts of different states, and the domicile of the general owner or special owner corresponds with neither the limits of the port nor those of either state ?
11. It is matter of serious consideration whether Congress can create a maritime lien in case of transactions relating to vessels not connected with foreign or inter-state commerce; and, whether, if it cannot, a state legislature can.
THE SUPREME COURT.
For several years there have been constantly repeated complaints concerning the condition of business, and the manner in which it is transacted, in the Supreme Court of the United States. It is said that the arrears, which have been growing for a long time, are now so great that two years at least will be required to hear the cases already on its list. An appeal therefore takes not less than two years, besides the interval, often considerable, which occurs between the judgment appealed from and the transmission of the cause to the Supreme Court, and again between the hearing and the decision on the appeal. By far the greater part of this delay is made necessary because the Court is unable, by reason of the accumulations of work, to give its attention to matters as they are brought before it; and there are grounds for believing that for the same reason cases do not receive. enough consideration. Questions of law are not always treated with the precision which great care would give, and which ought to mark the judgments of the highest court of appeal. This carelessness appears sometimes in the conclusions arrived at, sometimes in the language in which they are expressed, sometimes from the too frequent presence of dissent among the judges. The evil is a l'eal and serious obstacle to the administration of justice, and is weakening the beneficial influence of the Court, and the respect in which it is held. The determination of appeals ought always to occupy enough time to ensure a full and careful examination and consideration. A hasty decision, or a judgment carelessly expressed, often produces an indefinite amount of mischief to the public, far exceeding any injustice which may be done to the parties by one which is absolutely wrong. Promptness in deciding, so far as it is consistent with proper deliberation, is no less to be aimed at.
1 “Of the 830 cases on the docket of the United States Supreme Court for the term closed last month, 310 were disposed of, and opinions given in 210. Of the 75 cases in which the Government are a party, one-half were reassigned for the next term.” - International Revenue Record, May 31, 1875.
It is not surprising that the Court should be behind hand with its work, nor that the number of appeals is increasing. When we consider that the existing system is substantially that which was established as adequate to the requirements of the nation at the end of the last century, and that scarcely any change has been made which would give the Court power to dispose of a greatly augmented business, and when we reflect on the growth of the country in population, wealth, and trade during the last seventy-five years, we can but wonder that the trouble is not far greater. It is probable that the business of the Court will continue to increase with the growth of the country, and that provisions which may be adequate for it now, will be unequal to the needs of half a century hence. The necessity exists for some arrangement by which appeals may be heard promptly, and so determined that the decisions will command general confidence. This necessity is so great that some effort at improvement must soon be made. It will be easy to find temporary expedients, which will lighten the labors of judges for a time, and may have the appearance of being improvements; but at the same time they may take away much of the real efficiency and value of the tribunal. One attempt has been made by an act of this year,"
,'which we shall have occasion to mention; but it cannot be regarded as a comprehensive, final, or entirely satisfactory measure. Remembering what the jurisdiction of the Supreme Court is, surely it is possible that some means may be found of providing for the present wants, the principle of which may also be applicable to future necessities. But, before considering this subject, it may be well to place before our minds what we conceive to be the purpose of such a court and its main advantages, so that they may not be sacrificed by any attempts at improvement in matters of detail or temporary convenience.
Until an entirely different mode is devised for dispensing justice, an essential part of the system will be a court of appeal, with a jurişdiction extending over all the territory which is subject to the laws which it interprets and administers. The only court in this country which has such a jurisdiction is the Supreme Court. No institution is more important to the welfare of the subject than that, and nothing is more worthy of attention than to make sure of the advantages which may be derived from it. If all the courts are confined to local jurisdictions, whether of cir