Page images

courts of admiralty should have cognizance of all maritime contracts, and by the Constitution and laws they are granted it, and a contract is not the less maritime in its character because it relates to a navigation wholly within State boundaries."

The same conclusion is reached by the court of one of the Western Districts.1

In the above cases the distinction is taken that the voyage was performed out upon the high seas; and a doubt is raised, if the decision in the case of Maguire v. Card is intended to apply to inland waters generally. The court also say, that if this case turned alone upon the fact that the voyage was between ports of the same State, it must be held to overrule the case of The New World v. King.

A careful and candid examination of the cases referred to, and of that of The Hine, affords no ground, we think, for these opinions, nor for the decisions in which they are expressed. The case of The Emma Johnson is directly in conflict with that of The Nev Jersey S. N. Co.; the case of Maguire v. Card reaffirms the case of Allen v. Newberry; and in both, the doctrine is explicitly stated, that admiralty has no jurisdiction over matters concerning the purely internal trade of a State ; that this restriction was probably suggested by the limitation in the Constitution of the power in Congress to regulate commerce; that there can be no good reason given for extending jurisdiction over this commerce, and that such has been the doctrine from the case of Gibbons v. Ogden downwards.

If this restriction is confined to matters of contract, there can be no conflict in the decisions of the Supreme Court, as claimed in the case of The Sarah Jane.

The case of The New World v. King was a libel for an alleged marine tort, in a voyage from Sacramento to San Francisco, resulting from the bursting of a boiler flue and the escape of steam.

In the case of The Commerce, it is laid down in the strongest terms that the only requisite for admiralty jurisdiction to attach to cases of tort, is, that the locus should be on navigable water, eren if within the body of a county.

Is that clause of the Constitution, which leaves internal commerce to State regulation, sufficient to exclude the jurisdiction of the United States, when it is decided in the case of The Genesee Chief, that the Act of 1845, extending jurisdiction, would be void, if it depended upon the clause of the Constitution conferring upon Congress the power to regulate commerce among the States ? “ The jurisdiction of the United States cannot be made to depend on regulations of commerce. They are entirely distinct things, having no necessary connection with each other.” 1

i Boston Herald, June 1, 1868.

However this may be, we think the decisions of the Supreme Court afford no authority for the cases of The Emma Johnson and The Sarah Jane ; and this position of the district courts must be considered as directly in conflict with them.

If the foregoing conclusions are correct, the Admiralty Jurisdiction of the United States is exclusive, by the process in rem, over all civil maritime causes arising in voyages between ports of different States, on tide water, and waters therewith connected; and over all matters arising in voyages between ports of one State, excepting maritime contracts.

i The Commerce, 1 Black, 574.


The rapid fluctuations of values, and the consequent speculation, induced by the Legal Tender Act, have had as their natural concomitant an almost equally widespread disturbance of morals among the classes most nearly exposed to their pernicious influences. The result has been apparent in an unwonted frequency of frauds and defalcations among bank officers, conducted with extraordinary skill and audacity, and often involving sums of enormous magnitude. The public, through the banks, and not less than the banks, have been severe sufferers by these acts. It is notorious that the stock of a banking corporation, paying the same dividends as a railroad corporation, nevertheless sells much lower in the market. The difference marks the insecurity which capitalists generally consider attendant upon bank property, by reason of its peculiar liability to plunder by un principled officials. It would be idle to say that, in all cases, this evil could be averted by a correct and widely disseminated knowledge of the precise legal powers and duties of the various officers of a bank. But it is equally certain that such a knowledge would block in the inception a large proportion of the fraudulent acts of such officers, would even more frequently prevent them from becoming the tools of designing men by questionable and invalid stretches of authority, and would thus save vast sums of money in the outset, and crippling litigation afterward. Ignorance on this subject throws wide the door to frauds, originating both within and without the corporations. In 1841, Judge Rogers, of Pennsylvania, said, “perhaps many of the disasters which have lately befallen those institutions [banks], have arisen from the assumption of power by the cashier and president.” The remark which was true in 1841, is much more true in 1869.

But no sooner does one undertake to collate the authorities which go to define and limit the powers of bank officers, than he is struck with the unusual multitude of entirely novel questions which in all reason must be expected sooner or later to arise, and each of which will require a suit and a decision, perhaps several suits and decisions, for its complete settlement. Probably in no other department of the law does the ground traversed bear so small a proportion to that yet unexplored. Many causes combine to produce this state of affairs.

Chief among them is the fact that the precise sphere of each officer has never, in this country, been accurately defined by statute. This is not only a great but an entirely unnecessary misfortune. It is a matter in which we differ materially from the English. With them, the banking business is, in all its executive departments, in great measure regulated by enacted law; and the matters not provided for in the public statutes are commonly fixed in the deed of settlement of each company. Many functions of the “manager” and of the " public officer” are allotted to them by acts of Parliament. The remainder are customarily set forth in the deed; and it is only when both these sources fail, which is not often the case with incorporated companies, that by-laws, votes, usages, and such unsatisfactory repositories, have to be examined. With us, it is far otherwise. We are remitted to the rules and methods of the common law if we wish to discover what in England is discovered by the simple inspection of a general statute, or an almost equally accessible deed of settlement. If we wish to learn the legality of an act of a cashier, we must look to the common law of agency; we must search through a multitude of decisions; we ought to consult the by-laws of the bank, and perhaps even the votes of the directors; and frequently we must seek for evidence of usage among the banks of the same place, and even of the previous usage of the individual bank. All this laborious process often involves inconsistencies and contradictions, and brings us to no sure and safe result. In England, the same doubt, in nine cases out of ten, would be promptly solved by the examination of a few sections of parliamentary acts. The consequences of the respective systems are inevitable. The banks and bankers in England, and the persons dealing with them, conduct their business on a comparatively sound basis of rules, for the most part familiar, or at least easily ascertained. In the United States, precisely the contrary case daily vexes and harasses the merchant. The litigation which we have gone through on the various questions concerning the powers and duties of bank officers has been very extensive, and yet, as already stated, has made but a faint impression on the huge bulk of the subject. In England, they at least VOL. III.


appear to have prospered better. Their system is by no means thoroughly carried out. But the success which has attended the partial initiation of such a scheme furnishes good promise of the advantage which may reasonably be expected to result from its fuller execution. The English love to spend a long time in completing an undertaking; but their leisurely pace has already put them far in advance of ourselves ; and the imperfect development of their system, already attained, has brought great benefits to their business community which our merchants still long for in vain. When we established our national banks we might have cured the defect, which, under the previous regime of State banks, could not have been easily managed. We could have done the whole business at a stroke ; the opportunity was better than Eng. land has ever or will ever enjoy. But our national antipathy to the extension of governmental supervision over the affairs of individuals is answerable, and may long continue answerable, for our neglect of an obvious duty.

This legislation, if it could be effected, would utterly sweep away a custom already widely extended, still rapidly spreading, and daily proving itself to be a perfect hot-bed of litigation. This custom arises from the desire of business men to do for themselves what the government will not do for them ; from their effort by the aid of a system of established rules to introduce regularity, uniformity, and certainty into their dealings with each other. With the abolition or desuetude of the ancient system of guilds, the non-professional classes became for a time intermingled in a promiscuous society. But of late, the old taste for segregation has again sprung up in great strength. It appears now in the formation in each considerable city of a “Board,” “ Exchange," or other species of association, which is in fact little else than a new development of the ancient guild. Such are the “Brokers' Boards," the “Corn-dealers’ Exchanges,” and among banks the “ Association of the Clearing House.” Every such association soon establishes its peculiar code, to govern the dealings of its members inter se. The advantage of belonging to the association, and of adopting its rules, is usually found to be such that the great majority of the brokers, the corn-dealers, the bankers, &c., join their respective fraternities, and recognize and respect their rules in the conduct of their daily affairs. Yet the discrepancy between these merchant-made rules and the rules of law is often great and irreconcilable. As rules,

« PreviousContinue »