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had been prosecuted, the jurisdiction would have been maintained by the Supreme Court. The decisions of Judge Sprague, Judge Ware, and Judge Lowell, of the District Court, and the opinions of Mr. Dunlap, Mr. Benedict, and Judge Conkling.

Against these, is only the doubt of Mr. Chief Justice Taney, above referred to, which does not amount even to a dictum.

The weight of authority is decidedly in favor of the jurisdiction ; indeed, there is an utter absence of authority against it, even in England. There is no case on record known, in which the Court of Admiralty has refused to entertain jurisdiction over the subject, or in which the courts of common law have prohibited it. In all admiralty commissions, insurance is mentioned as a matter over which jurisdiction is to be exercised ; and in Scotland, the Court of Admiralty, under a similar commission constantly entertains such jurisdiction.

All that can be said about the exercise of the jurisdiction by the English court is, that, practically, it has not been resorted to. Certainly this is no argument against such exercise in the courts of another nation, having jurisdiction over all maritime contracts, which has been resorted to and exercised for more than fifty years in matters of insurance.

The Supreme Court has definitively established the rule that the admiralty jurisdiction is not limited to those cases over which the English court practically exercised jurisdiction at the time of the Revolution, and has declared that it extends to all maritime cases, when not restrained by statute. The only question then is, whether or not marine insurance is a contract concerning matters of navigation, trade, commerce, &c.; or, in other words, a maritime contract.

There can be only one answer; and the jurisdiction follows of course, if there is any regard due to reason, consistency, and settled practice.

It has been suggested that the question of admiralty jurisdiction is in a measure historical, and to be determined by the practice of the colonial courts of admiralty; and that this was what was contemplated by the framers of the Constitution.

If there had been a known, uniform, and established practice in the thirteen colonies, this suggestion might deserve consideration. It is not known that there was any such practice, and probably it varied in the court of each colony. It is known, however, that the commissions by which these courts were created, conferred jurisdiction in the broadest terms. See one quoted in 2 Gallison, page 470, note, and several in the records of the Vice-Admiralty Court of Massachusetts.

It seems more probable that the framers of the Constitution intended to create a Judiciary which might exercise jurisdiction over all maritime causes, leaving Congress to define or limit its exercise as deemed expedient, and that Congress thought proper to vest it in the district courts without limitation, only saving to suitors the right to resort to the courts of common law in matters over which they could exercise jurisdiction.

It has been held that the grant of jurisdiction, in the Constitution and statute, is not to be limited by the practical jurisdiction of the English Admiralty, for one reason, — because such a construction would add words of limitation to the general words used in the Constitution. The same objection would exist against the application of a rule derived from the practice of the colonial courts.

If, however, this rule were adopted, it would not, so far as known, limit the jurisdiction. In Massachusetts, under the first charter, admiralty jurisdiction was not reserved to the crown, but was vested in the Court of Assistants. In Ancient Charters (App. 716), will be found a code regulating the rights and duties of mariners, owners, masters, freighters, contributors, &c.; and the last article of the chapter provides that “all cases of admiralty shall be heard and determined by the Court of Assistants

without jury, unless the court shall see cause to the contrary. Provided, always, this act shall not be interpreted to obstruct the just plea of any mariner or merchant impleading any person in any other court, upon any matter or cause that depends upon contract, covenant, or other matter of common equity, in maritime affairs.In other words, the Court of Assistants was vested with admiralty jurisdiction over all maritime cases of contract, covenant, or other matter of equity, reserving to the courts of common law concurrent jurisdiction, as is done by the Judiciary Act.

What the practice was under this law is not known. When the second charter was granted, in 1691, admiralty jurisdiction was reserved to the crown, and was exercised by judges appointed by it.

Until lately, little was known as to the practice of the vice

admiralty courts of Massachusetts. Only one volume of its records, not half filled, was to be found in the office of the United States District Court: the cases in which relate to matters of prize and revenue and wages. The other volumes were supposed to have been taken to Halifax, at the time of the evacuation of Boston, and to have been lost or destroyed. Lately, two volumes have come to light, and have been deposited in the library of the Boston Athenæum: they are the second and third volumes, beginning in 1718. The first is still missing. The one in the clerk's office, the fourth, extends from 1740 to 1744; and the rest are also missing.

An examination of these two volumes discloses that the court exercised jurisdiction over all maritime cases. Besides numerous suits for wages, and liberations, and assaults, they contain records of over fifty cases of libels on maritime contracts. There may be found libels for contribution, both in rem and in personam; on charter-parties, on contracts of affreightment for freight, for nondelivery or damage to goods; between owners for an account; by masters in rem for wages and disbursements; against a mate for non-performance of his contract; for surveys, condemnations, and sales ; of material-men, for supplies in home port in rem; against mate, for error in making a bill of lading; by builder of a ship, for its price in rem, after it had been delivered; by passengers, and various other cases. In one case, a consignee sued a master for non-delivery: he answered that the goods were thrown overboard for the common safety; the court found that the jettison was justifiable, and sent the case to commissioners to adjust the average. The case is like that of Dupont v. Vance, except that there, the libel was in rem, here, it was in personam.

Another case resembles Taylor v. Carryl. It was a suit in rem by an assignee of a master and mate, for wages, &c. The libel alleged that the vessel had been attached by a creditor at common law. The court ordered the marshal to take possession and sell; and, after satisfying the claim of the libellant, to pay the residue into the registry, to answer the claim of the attaching creditors. In Taylor v. Carryl, a divided court held that an attachment at common law could not be so subjected to a maritime lien.

If a similar jurisdiction was exercised in the admiralty courts of the other colonies, there would be no doubt as to what the framers of the Constitution had in mind; but this can only be learned from an examination of their records, if any are in existence, which is not known.

| 19 How. 162.

2 20 How. 583.

There is one case reported in Pennsylvania, - Talbot's case, – which shows that the Court of Admiralty of that province exercised jurisdiction over all maritime cases.

An Act of Assembly gave the judge of admiralty cognizance of all suits of maritime jurisdiction not cognizable at common law. Literally construed, this would have limited the jurisdiction to matters of prize. But the Supreme Court held that it could not have been so intended, and that the true construction was, that the jurisdiction embraced all suits of a maritime nature not properly cognizable at common law, and, consequently, all those properly of maritime jurisdiction over which the common law had usurped or otherwise obtained jurisdiction : thus extending the jurisdiction to the largest limit ever claimed for it.

It appears from the “ Federalist,” that, in the convention, no disposition was shown to deny the National Judiciary the cognizance of maritime cases; and it does not appear that any objection was made to this grant in the State conventions which adopted the Constitution.2

If the jurisdiction, known to have been exercised by the admiralty courts before the Revolution, is to be taken as the rule, it must be admitted that every case which can properly be defined as maritime, is a proper subject for the jurisdiction of the United States District Court; and, of course, marine insurance.

It will be found, on examining these records, that no objection was made to the extensive jurisdiction exercised. It seems to have been considered as a matter about which there could be no doubt. In one case only was there a plea to the jurisdiction. A master sued in rem in the home port for wages and disbursements. Such a plea was interposed and overruled.

The jurisdiction claimed by Judge Story, Judge Ware, and others, for the admiralty courts of the United States, is not something new and before unknown, but is no more extensive than that exercised by the colonial courts.

The extension of the admiralty jurisdiction by Parliament, so

1 2 Dall. 94.

? See Elliott's Debates.

much complained of before the Revolution, related exclusively to revenue cases.

An argument in favor of a general jurisdiction of the United States courts in admiralty, may be drawn from the power vested in Congress to regulate commerce.

By virtue of this, Congress may legislate on all commercial matters; it may enact a code of commerce, regulating all affairs of navigation, affreightments, averages, marine insurances, and other maritime matters, and has exercised this power to some extent in those acts which limit the liability of ship-owners, provide for the registration of ships, regulate the carriage of passengers, &c.

It would seem that the jurisdiction of the maritime courts of the United States should be co-extensive, and should embrace all commercial and maritime matters which Congress has the power to regulate. The remedies afforded by the United States courts of common law and equity are not adapted to all maritime cases, especially where a lien exists; and as their jurisdiction generally depends on the residence of the parties, it is doubtful whether they could exercise it in all cases; and there might be the anomaly of a government with power to make laws and no tribunals to administer them, and this without remedy, for Congress has vested in the courts it created all the admiralty jurisdiction which the Constitution authorized it to confer. The power is exhausted, and if the United States courts have not jurisdiction over all maritime cases, they cannot acquire it, except by an amendment of the Constitution. If this were attempted, it would be difficult to find words sufficient to create a more ample jurisdiction than those used in the Constitution and consequent act of Congress.

If these courts have not jurisdiction over all maritime contracts and cases, it is not for want of law, but by reason of judicial construction and legislation, limiting the general terms used in the law.

But it may be said that, in Cutler v. Rae, the Supreme Court decided that general average is not a matter of admiralty jurisdiction, and that, a fortiori, a contract of insurance cannot be.

If the contract, or quasi contract, of general average is not within the jurisdiction, it does not necessarily follow that an

1 7 How. 729.

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