Taylor v. Carryl/Dissent Taney

by Roger B. Taney

United States Supreme Court

61 U.S. 583

Taylor  v.  Carryl

Mr. Chief Justice TANEY, Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CLIFFORD, dissented.

Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CLIFFORD, concurred with Mr. Chief Justice TANEY in the following dissenting opinion:

I dissent from the opinion of the court. The principle upon which the case is decided is so important, and will operate so widely, that I feel it my duty to show the grounds upon which I differ. This will be done as briefly as I can; for my object is to state the principles of law upon which my opinion is formed, rather than to argue them at length.

The opinion of the court treats this controversy as a conflict between the jurisdiction and rights of a State court, and the jurisdiction and rights of a court of the United States, as a conflict between sovereignties, both acting by their own officers within the spheres of their acknowledged powers. In my judgment, this is a mistaken view of the question presented by the record. It is not a question between the relative powers of a State and the United States, acting through their judicial tribunals, but merely upon the relative powers and duties of a court of admiralty and a court of common law in the case of an admitted maritime lien. It is true that the court of admiralty is a court of the United States, and the court of common law is a court of the State of Pennsylvania. But the very same questions may arise, and indeed have arisen, where both courts are created by and acting under the same sovereignty. And the relative powers and duties of a court of admiralty and a court of common law can upon no sound principles be different, because the one is a court of the United States and the other the court of a State. The same rules which would govern under similar circumstances, where the process of attachment or a fieri facias had issued from a Circuit Court of the United States exercising a common-law jurisdiction, must govern in this case. The court of admiralty and court of common law have each their appropriate and prescribed sphere of action, and can never come in conflict, unless one of them goes outside of its proper orbit. And a court of common law, although acting under a State, has no right to place itself within the sphere of action appropriated peculiarly and exclusively to a court of admiralty, and thereby impede it in the discharge of the duties imposed upon it by the Constitution and the law.

There are some principles of law which have been so long and so well established that it is sufficient to state them wihout referring to authorities.

The lien of seamen for their wages is prior and paramount to all other claims on the vessel, and must be first paid.

By the Constitution and laws of the United States, the only court that has jurisdiction over this lien, or authorized to enforce it, is the court of admiralty, and it is the duty of that court to do so.

The seamen, as a matter of right, are entitled to the process of the court to enforce payment promptly, in order that they may not be left penniless, and without the means of support on shore. And the right to this remedy is as well and firmly established as the right to the paramount lien.

No court of common law can enforce or displace this lien. It has no jurisdiction over it, nor any right to obstruct or interfere with the lien, or the remedy which is given to the seaman.

A general creditor of the ship-onwer has no lien on the vessel. When she is attached (as in this case) by process from a court of common law, nothing is taken, or can be taken, but the interest of the owner remaining after the maritime liens are satisfied. The seizure does not reach them. The thing taken is not the whole interest in the ship. And the only interest which this process can seize is a secondary and subordinate interest, subject to the superior and paramount claims for seamen's wages; and what will be the amount of those claims, or whether anything would remain to be attached, the court of common law cannot know until they are heard and decided upon in the court of admiralty.

I do not understand these propositions to be disputed.

Under the attachment, therefore, which issued from the common-law court of Pennsylvania, nothing was legally in the custody of the sheriff but the interest of the owner, whatever it might prove to be, after the liens were heard and adjudicated in the only court that could hear and determine them. The common-law process was not and could not be a proceeding in rem, to charge the ship with the debt, for the creditor has no lien upon her, and the court had no jurisdiction over anything but the owner's residuum.

The whole ship could not be sold by them, so as to convey an absolute right of property to the purchaser. And even what was seized was not taken to subject it to the payment of the debt, but merely to compel the owner to appear personally to a suit brought against him in personam in the court which issued the process of attachment. It was ancillary to the suit against him personally, and nothing more. The vessel would be released from the process, and restored to him, as soon as he gave bail and appeared to the suit; and she would be condemned and sold only upon his refusal to appear. But, according to the laws of the State and the practice of the common-law court, twelve months or more might elapse before the vessel was either sold or released from the process.

The question, then, is simply this: can a court of common law, having jurisdiction of only a subordinate and inferior interest, shut the doors of justice for twelve months or more against the paramount and superior claims of seamen for wages due, and prevent them from seeking a remedy in the only court that can give it? I think not. And if it can be done, then the paramount rights of seamen for wages, so long and so constantly admitted, is a delusion. The denial of the remedy for twelve months or more after the ship has arrived is equivalent, in its effect upon them, to a denial of the lien; substantially and practically it would amount to the same thing. And it is equally a denial of the right of the court of admiralty to exercise the jurisdiction conferred on it by the Constitution and laws of the United States.

Now it is very clear, that if this ship had been seized by process from a common-law court of the United States for a debt due from the owner, the possession of the marshal under that process would have been superseded by process from the admiralty upon a preferred maritime lien. This I understand to be admitted. And if it be admitted, I do not see how the fact that this process was from a common-law court of a State, and served by its own officer, can make any difference; for the common-law court of a State has no more right to impede the admiralty in the exercise of its legitimate and exclusive powers, than a common-law court of the United States. And the sheriff, who is the mere ministerial officer of the court of common law, can have no greater power or jurisdiction over the vessel than the court whose process he executes. He seizes what the court had a right to seize; he has no right of possession beyond it; and if the interest over which the court has jurisdiction is secondary and subordinate to the interest over which the admiralty has exclusive jurisdiction, his possession is secondary and subordinate in like manner, and subject to the process on the superior and paramount claim. It is the process and the authority of the court to issue it that must determine who has the superior right. And if the one is to enforce a right paramount and superior to the other, it is perfectly immaterial whether the first process was served by a sheriff or the marshal. Nor does it make any difference when they are served by different officers of different courts. In the case of the Flora, 1 Hagg., 298, the vessel had been seized by a sheriff upon process from the Court of King's Bench. She was afterwards, and while in possession of the sheriff, arrested upon process from the admiralty on a prior maritime lien, and was sold by the marshal while the sheriff still held her under the common-law process. The sale by the marshal was held to be valid by the King's Bench. It is true, that the creditor at whose suit the vessel was seized by the sheriff consented to the sale, and claimed to come in for the surplus after paying the maritime lien. But if the marshal could not lawfully arrest while she was in the possession of the sheriff, he could not lawfully sell under that arrest, nor while the sheriff still held possession, and no consent of parties would make it a valid marshal's sale, and give a good title to the purchaser, if the sale was without authority of law. The validity of these proceedings was brought before the courts by the ship-owner, and earnestly litigated. The Court of King's Bench sanctioned the sale, not upon the ground that the creditor consented to it, but upon the ground that the marshal acted under a court of competent authority, (see note 301,) and they refused to interfere with the surplus which remained after payment of seamen's wages, which had been paid into the registry of the admiralty, even in behalf of the creditor who had seized under their own process. The King's Bench do not seem to have supposed there was any conflict of jurisdiction in the case, or that their process or officer had been improperly interfered with by the marshal, nor did the King's Bench hold that there was any incongruity in the possession of the sheriff and the marshal at the same time. On the contrary, it was conceded on all hands that the possession of the sheriff was no obstacle to the arrest by the marshal, nor any impediment in the way of the admiralty, when exercising its appropriate and exclusive jurisdiction, in enforcing claims prior and superior to that of the attaching creditor. Is there any substantial difference between that case and the one before us? I can see none.

Chancellor Kent, in his Commentaries, states the principle with his usual precision and clearness, and in a few words. In vol. 1st, 380, speaking of the lien for seamens' wages, he says: 'The admiralty jurisdiction is essential in all such cases, for the process of a court of common law cannot directly touch the thing in specie.' And in my judgment the process of the court of common law in this case did not touch the interest of the seamen in the ship.

But it seems, however, to be supposed, that the circumstance that the common-law court was the court of a State, and not of the United States, distinguishes this case from that of the Flora, and is decisive in this controversy. And it is said that the Royal Saxon, being in possession of an officer of a State court, under process from the court, she was in the possession of an officer of another sovereignty, and was in the custody of its law, and that no process could be served upon her, issuing from the court of a different sovereignty, without infringing upon the rights of the State, and bringing on unavoidably a conflict between the United States and the State.

If, by another and different sovereignty, it is meant that the power of the State is sovereign within its sphere of action, as marked out by the Constitution of the United States, and that no court or officer of the United States can seize or interfere with property in the custody of an officer of a State court, where the property and all the rights in it are subject to the control of the judicial authorities of the State, nobody will dispute the proposition. But if it is intended to say that, in the administration of judicial power, the tribunals of the States and the United States are to be regarded as the tribunals of separate and independent sovereignties, dealing with each in this respect upon the principles which govern the comity of nations, I cannot assent to it. The Constitution of the United States is as much a part of the law of Pennsylvania as its own Constitution, and the laws passed by the General Government pursuant to the Constitution are as obligatory upon the courts of the States as upon those of the United States; and they are equally bound to respect and uphold the acts and process of the court of the United States, when acting within the scope of its legitimate authority. And its courts of common law stand in the same relation to the courts of admiralty, in the exercise of their judicial powers, as if they were courts of common law of the United States. The Constitution and the laws, which establish the admiralty courts and regulate their jurisdiction, are a part of the supreme law of the State; and the State could not authorize its common-law courts to issue any process, or its officers to execute it, which would impede or prevent the admiralty court from performing the duties imposed upon it, on exercising the power conferred on it by the Constitution and laws of the United States. The State courts have not, and cannot have, any jurisdiction in admiralty and maritime liens, to bring them into conflict with the courts of the United States. This principle appears to me to rest on the clear construction of the Constitution, and has been maintained by eminent jurists.

Precisely the same question now decided came before the Circuit Court of Massachusetts twenty years ago, in the case of certain logs of mahogany, Thomas Richardson, claimant, reported in 2d Sumn., 589; and also before the District Court of the State of Maine, thirty years ago, in the case of Poland et al. v. the freight and cargo of the brig Spartan, reported in Ware's Rep., 143; and in both of these cases the point was fully considered and decided by the court; and in both it was held that a previous seizure under a process of attachment from a State court could not prevent the admiralty from proceeding in rem to enforce the preferred liens of which it has exclusive jurisdiction.

In the case in the Circuit Court of Massachusetts, Mr. Justice Story says: 'A suit in a State court by replevin or by attachment can never be admitted to supersede the right of a court of admiralty to proceed by a suit in rem, to enforce a right against that property, to whomsoever it may belong. The admiralty does not attempt to enter into any conflict with the State court, as to the just operation of its own process; but it merely asserts a paramount right against all persons whatever, whether claiming above or under the process. No doubt can exist that a ship may be seized under admiralty process for a forfeiture, notwithstanding a prior replevin or attachment of the ship then pending. The same thing is true as to the lien on a ship for seamen's wages, or a bottomry bond.'

I quote the words of Mr. Justice Story, because he briefly and clearly states the principle upon which the jurisdiction of the respective courts is regulated, and upon which I think this case ought to be decided. The Constitution and laws of the United States confer the entire admiralty and maritime jurisdiction expressly upon the courts of the General Government. And admiralty and maritime liens are therefore outside of the line which marks the authority of a common-law court of a State, and excluded from its jurisdiction. And if a common-law court sells the vessel to which the lien has attached, upon condemnation, to pay the debt, or on account of its perishable condition, it must sell subject to the maritime liens, and they will adhere to the vessel in the hands of the purchaser, and of those claiming under him.

Upon what sound principle, then, of judicial reasoning can it be maintained, that although the process of a common-law court cannot reach the maritime liens, yet, by laying hold of some other interest, it can withdraw them from admiralty for an indefinite period of time? It cannot issue its mandate to the admiralty, not to proceed upon those liens; but, according to the present decision, it may take the lien out of its power and out of its jurisdiction. I cannot be persuaded that a court which, by the Constitution of the United States, has no jurisdiction over the subject-matter-that is, the maritime lien-can directly or indirectly prevent or delay the court which, by the Constitution, has exclusive jurisdiction, from fulfilling its judicial duty, or the seamen from pursuing their remedy, where alone they can obtain it.

But the decision of this court in the case of Hagan v. Lucas, 10 Pet., 400, it is said, is the same in principle, and must govern the case now before us. If this were the case, I should yield to its authority, however reluctant I might feel to do so. But in my judgment the point decided in that case has no analogy whatever to the questions arising in this In the case of Hagan v. Lucas, a judgment had been obtained in the State court of Alabama against certain defendants, and an execution issued, upon which certain slaves were seized by the sheriff as the property of the defendants. Lucas, the defendant in this writ of error, claimed the property as belonging to him; and, under a statute of Alabama, the property was restored to him by the sheriff, upon his giving bond for the forthcoming of the slaves, if it should be found that they were the property of the persons against whom the execution was issued. And proceedings were thereupon had, to try before the court the right of property, according to the provisions of the State law. Pending these proceedings, a judgment was obtained in the District Court of the United States against the same defendants, and an execution issued, which the marshal levied on the same property that had been seized by the sheriff. Lucas thereupon appeared in court, and again claimed the slaves as belonging to him, and at the trial exhibited proof that the proceedings to try the right of property under the sheriff's levy were still pending and undetermined in the State court. Both the court below and this court held, that under these circumstances the property could not be taken in execution by the marshal upon process from the District Court of the United States.

But what was the principle upon which that case turned? and what resemblance has it to the questions we are now called on to consider?

Here were two courts of common law, exercising the same jurisdiction, within the same territorial limits, and both courts governed by the same laws. Neither court had any peculiar or exclusive jurisdiction over the property in question, nor of any peculiar right or lien upon it. The State court had the same power with the District Court to hear and decide any question that might arise as to the rights of property of any person, and to protect any liens and priorities of payment to which the property or its proceeds were liable. In a word, they were courts of concurrent and co-ordinate jurisdiction over the subject-matter; and if the plaintiff in the District Court had any preferred interest in the property, or any superior or prior claim, he could have asserted that claim in the State court, and have obtained there the same remedy and the same protection of his rights, and as effectually and speedily, as the court of the United States could have afforded him.

And this court, in deciding the case, did nothing more than adhere to a rule which, I believe, is universally recognised by courts of justice-that is, that between courts of concurrent jurisdiction, the court that first obtains possession of the controversy, or of the property in dispute, must be allowed to dispose of it finally, without interference or interruption from the co-ordinate court. And this rule applies where the concurrent jurisdictions are two courts of the United States or two courts of a State, or one of them the court of a State and the other a court of the United States. It was no new question when the case of Hagan v. Lucas came before this court; but an old and familiar one, upon which courts of concurrent jurisdiction have necessarily uniformly acted, in order to prevent indecorous and injurious conflicts between courts in the administration of justice. Indeed, this principle seems hardly to have been disputed in that case. The arguments of counsel are not given in the report. But, judging from the opinion delivered by the court, the main question seems to have been, whether the slaves were not released from execution by the bond given by Lucas, and the bond substituted in their place. The court, under the authority of a case decided in the State court of Alabama, held that they were not released from the sheriff's levy, and therefore applied the familiar rule in relation to courts of concurrent jurisdiction.

But how can the case of Hagan v. Lucas influence the decision of this? If Pennsylvania had an admiralty or any other court with jurisdiction over maritime liens, and the attaching creditor had proceeded in that court, undoubtedly the same principle would apply. But the State has no such court, and can have none such under the Constitution of the United States. The jurisdiction of the District Court is exclusive on that subject, and the line of division between that and the courts of common law is plainly and distinctly drawn. And when the District Court proceeded to enforce the lien for seamen's wages, it interfered with no right which the creditor had acquired under the process of attachment, nor with any right of property, subject to State jurisdiction; and when the District Court, acting within its exclusive and appropriate jurisdiction, proceeded to enforce the preferred and superior right of seamen's wages, it claimed no superiority over the State court; it merely exercised a separate and distinct jurisdiction. It displaced no right which the attaching creditor had acquired under the State process, nor in any degree lessened his security. Nor did it interfere with any right over which the State court had jurisdiction. If the liens were paid without sale, his attachment still held the ship. If she was sold, his right, whatever it was, adhered to the surplus, if any remained after discharging the liens. And if the State court passed judgment of condemnation in his favor, he would be entitled to receive from the registry of the admiralty whatever was awarded him by the State court, if there was surplus enough after paying the superior and preferred claims for maritime liens. I can see no conflict of jurisdiction; nor can there be any, if each tribunal confines itself to its constitutional and appropriate jurisdiction.

But my brethren of the majority seem to suppose, that the principle decided in Hagan v. Lucas goes farther than I understand it; and that it has established the principle, that where a ship, within the limits of a State, is attached by an officer of a State, under process from a State court, no process can be served upon it from a District Court of the United States, while it is held under attachment by the sheriff; and that the sheriff might lawfully repel the marshal, if he attempted to serve a process n rem, although it was issued by the District Court of the United States, to enforce a paramount and a superior claim, for which the ship was liable, and which the District Court had the exclusive right to enforce, and over which the State court had not jurisdiction.

If this be the principle adopted by this court, and be followed out to its necessary and legitimate results, it must lead them further, I am convinced, than they are prepared to go. For it might have happened, that after this vessel was seized by the sheriff, and while she remained in his possession, it was discovered that she was liable to forfeiture, or had incurred some pecuniary penalty which was by law a lien upon her, and process issued by the District Court to arrest her, in order to enforce the penalty or forfeiture. In such a case, no one, I presume, would think that the sheriff had a right to keep out the marshal, and prevent him from arresting the ship; nor would such an arrest, I presume, be regarded as a violation of the sovereignty of the State, nor an illegal interference with the process or jurisdiction of its courts. Yet if it be admitted that the marshal may under such process lawfully take possession and control of the vessel, upon what principle of law does it stand? Simply upon this: that the rights of the United States under the Constitution are paramount and superior to the right of the attaching creditor. And as the District Court has exclusive jurisdiction to decide upon them, and enforce them, and the State court no jurisdiction over them, the State court cannot lawfully interfere with the process of the District Court, when exercising its exclusive jurisdiction to enforce and maintain this paramount and superior right.

But is not the claim for mariners' wages superior and paramount to the claim of the general creditor, at whose suit the attachment issued? Has not the District Court the exclusive power to enforce and maintain this right, and is not the State court without jurisdiction upon the subject? It is true, that the seaman's right is not regarded as of equal dignity and importance with the rights of the United States. But if the proposition be true, that after the vessel was seized by the sheriff she was in the custody of the law of the State, and no process from the District Court would authorize the marshal to arrest her, although it was issued upon a higher and superior right, for which the ship was liable, and over which the State court had no jurisdiction, the proposition must necessarily embrace process to enforce the superior and prior rights of the United States, as well as the superior and privileged rights of individuals; for the District Court has no right to trespass upon the sovereign and reserved rights of a State, or to interfere unlawfully with the process of its courts, because the United States are the libellants, and the process issued at their instance. In this respect, the United States have no greater right than an individual. And if the Royal Saxon might have been arrested by the marshal to enforce the higher and superior right of the United States in the appropriate court, I can see no reason why he might not upon the same grounds make the arrest to enforce and protect the higher and superior right to mariners' wages. I think it will be difficult to draw any clear line of distinction between them, and, in my opinion, the process may be lawfully executed by the marshal in either case. I agree with the majority of my brethren in regarding it as among the first duties of every court of the United States carefully to avoid trespassing upon the rights reserved to the States, or interfering with the process of their courts when they are exercising either their exclusive or concurrent jurisdiction in the matter in controversy. And with the high trusts and powers confided by the Constitution to the Supreme Court, it is more especially its duty to abstain from all such interference itself, and to revise carefully the judgments of the inferior courts of the United States whenever that question arises, and to reverse them if they exceed their jurisdiction. But I must add, that while in my judgment this court should be the last court in the Union to exercise powers not authorized by the Constitution, it should be the last court in the Union to retreat from duties which the Constitution and laws have imposed.

It has been suggested that this was a foreign ship, and the seamen foreign seamen, and that they are not therefore embraced in the act of Congress which gives a lien upon the vessel for seamen's wages. But this provision of the law was nothing more than an affirmance of the lien which was given by the maritime law in England from the earliest period of its commercial jurisprudence, and indeed by the maritime law of every nation engaged in commercial adventures. And the English law was brought with them by the colonists when they migrated to this country, and was invariably acted on by every admiralty court, long before the act of Congress was passed.

It is true, that it is not in every case obligatory upon our courts of admiralty to enforce it in the case of foreign ships, and the right or duty of doing so is sometimes regulated with particular nations by treaty. But as a general rule, where there is no treaty regulation, and no law of Congress to the contrary, the admiralty courts have always enforced the lien where it was given by the law of the State or nation to which the vessel belonged. In this respect the admiralty courts act as international courts, and enforce the lien upon principles of comity. There may be, and sometimes have been, cases in which the court, under special circumstances, has refused to interfere between the foreign seamen and ship-owner; but that is always a question of sound judicial discretion, and does not affect the jurisdiction of the court, and, like all questions resting in the judicial discretion of the court below, (such as granting or refusing a new trial, continuing a case, or quashing an execution,) it is not a subject for revision here, and furnishes no ground for appeal, or for impeaching the validity of the judgment. The District Court undoubtedly had jurisdiction of the case, if in its discretion it deemed it proper to exercise it.

Indeed, there appears to have been no special circumstances brought to the notice of the court to induce it, upon international considerations, not to interfere. There was no objection on the part of the foreign ship-owner or master; but, on the contrary, a general desire that the court should do so. And certainly this circumstance was not even adverted to in the State or District Court, and had no influence upon the opinions of either.

It is perhaps to be regretted that this question of jurisdiction did not arise between two courts of common law, but has arisen between the admiralty courts of the United States and a common-law court of the State. I am sensible, that among the highest and most enlightened minds, which have been nurtured and trained in the studies of the common law, there is a jealousy of the admiralty jurisdiction, and that the principles of the common law are regarded as favorable to personal liberty and personal rights, and those of the admiralty as tending in a contrary direction. And under the influence of this opinion, they are apt to consider any restriction upon the power of the latter as so much gained to the cause of free institutions. And as there is no admiralty jurisdiction reserved to the States, and the administration of justice in their courts is confined to questions of common law and chancery, the studies and pursuits of the jurists in the States do not generally lead them to examine into the history and character of the admiralty jurisdiction; nor to inquire into its usefulness, and indeed necessity, in every country extensively engaged in commerce. Their opinions are naturally formed from common-law decision, and common-law writings and commentaries. And no one has contributed more than Lord Coke to create these opinions. His great knowledge of the common law, displayed in his voluminous writings, has made him a high authority in all matters concerning the administration of justice. And every one who in early life has passed through the usual studies of the common law, feels the influence of his opinions afterwards, in all matters connected with legal inquiries. The firmness with which he resisted the encroachments of the Crown upon the liberty of the subject, in the reigns of James I and Charles I, has added to the weight of his opinions, and impressed them more strongly and durably upon the mind of the student. But before we receive implicitly his doctrines on the admiralty jurisdiction, it may be well to remember that in the case of Smart v. Wolf, 3 T. R., 348, where the opinions of Lord Coke were referred to upon a question of admiralty jurisdiction, Mr. Justice Buller said: 'with respect to what is said relative to the admiralty jurisdiction in 4 Inst., 135, that part of Lord Coke's work has been always received with great caution, and frequently contradicted. He seems to have entertained not only a jealousy of, but an enmity against, the jurisdiction.'

I need not speak of the weight to which this opinion is entitled, when judicially pronounced by Mr. Justice Buller in the King's Bench, in deciding a well-considered case then before the court.

Every one who has studied the history of English jurisprudence generally, and who has not confined his researches to the decisions of the common-law courts, and the commentaries of writers trained in them, is aware that a very grave contest existed for a long time, as to the relative jurisdictions of the Court of King's Bench and the admiralty after the passage of the statutes of Richard II, which are so often referred to. And this controversy was continued with unabated zeal on both sides after the passage of the statutes of Henry IV and Henry VIII, on the same subject.

It is not my purpose to discuss the points on which the courts differed. I refer to the controversy merely to show that the construction given to the English statutes by the King's Bench, and which finally narrowed so much the jurisdiction of the English admiralty, was earnestly disputed at the time by many of the most distinguished jurists of the day. Indeed, the decisions of the King's Bench were by no means uniform, and the opinions of comon-law judges on the subject widely differed. This appears by the opinion of the twelve judges, given to the King in Council, according to the usage of the English Government at that period of its history, and also by the ordinance of the Parliament in 1648, both of which materially differed from the decisions made before and afterwards in the King's Bench. I refer to these opinions particularly because they show, past doubt, that the construction placed upon the English statutes, now so confidently assumed to have been the admitted one at the time, was, in fact, for several generations, earnestly disputed by legal minds of the highest order, and was at length forced on the admiralty by the controlling power of the King's Bench; for, whatever justice or weight of argument there might be on the part of the construction of the admiralty judges, the power was in the King's Bench. It exercised not merely the ordinary appellate authority of a superior court, but it issued its prohibition, forbidding any other court to try a suit brought in it where the judges of the King's Bench denied the jurisdiction of the inferior court, and claimed the right to have the case tried before themselves.

How, and under what influences, such a power would be exercised, from the reign of Richard II to that of Henry VIII, we may readily imagine. It was a period when England was divided by the rival claims of the houses of York and Lancaster to the crown, and was often convulsed by civil wars, not upon questions of civil liberty or national policy, but merely to determine which of the claimants should be their king; and when the monarch who succeeded in fighting his way to the throne framed his policy, and appointed the officers, civil as well as military, with a view to maintain his own power, and destroy the hopes of his adversary, rather than with any desire to promote the liberties of the people, or establish an enlightened and impartial administration of justice in his courts. And as the king was presumed to preside in person in the King's Bench, and the judges held their offices at his pleasure, no reader of history will doubt the temper and spirit in which power was exercised.

But we are not left to conjecture on that subject. The same efforts and means that were successfully used to break down the court of admiralty, were also used at the same time, and by the same men, to restrict the powers of the court of chancery, but not with the like success. And the same reasons were assigned for it-that is, that it proceeded upon the principles and adopted the practice of the civil law, and had no jury, and was on that account unfavorable to the principles of civil liberty, whilst the proceedings at common law supported and cherished them. These hostile efforts against the chancery continued until the reign of James I, and were made with renewed vigor in the time of Lord Ellesmere, who was appointed Lord Keeper by Queen Elizabeth, the Chancellor by James I.

A brief passage from the life of Lord Chancellor Ellesmere, by Lord Campbell, will tell us how far the earlier decisions of the Courts of King's Bench on the statutes of Richard II, Henry IV, and Henry VIII, which are so often pressed upon us, ought to be respected as just interpretations of these statutes, and also how far we ought to regard those judges as high and impartial jurists, seeking only to maintain free institutions when they give judgments restraining the jurisdiction of other courts.

The passage I quote from Lord Campbell is in his 2d vol. Lives of the Chancellors, 184, 185, London edition of 1845, where, after stating that few of his (Lord Ellesmere's) judgments had come down in a shape to enable us to form an opinion of their merits, but that they were said to have been distinguished for sound learning, lucid arrangement, and great precision of doctrine, he proceeds in the following words:

'The only persons by whom he was not entirely approved were the common-law judges. He had the boldness to question and correct their pedantic rules more freely than Lord Keeper Puckering, Lord Keeper Bacon, or any of his predecessors, had done, and not unfrequently he granted injunctions against executions on common-law judgments, on the ground of fraud in the plaintiff, or some defect of procedure by which justice had been defeated. He thus not only hurt the pride of these venerable magistrates, but he interfered with their profits, which depended mainly upon the number of suits brought before them, and the reputation of their respective courts. These jealousies, which begun so soon after his appointment, went on constantly increasing, till at last, as we shall see, they produced an explosion which shook Westminster Hall to its centre.'

We need nothing further to show what respect is due to the opinions of judges actuated by such motives.

The legislation of England, however, in the present age, when the principles of civil liberty and enlightened jurisprudence are better understood, shows that the restrictions upon the admiralty jurisdiction, imposed by the King's Bench, have been found unsuitable to the wants of a great commercial people, and that the enlargement of that jurisdiction is not regarded, at the present day, as adverse to the march of liberal and free institutions. And the decisions of the King's Bench having been too firmly established, by repeated adjudications, to be removed by judicial authority, Parliament interposed, and by the statute of 3d and 4th Victoria, passed in 1840, restored to the court many of the most important powers in civil cases that had been wrested from it by the decisions in the King's Bench. The courts of common law proved to be far less suited for such controversies. And it is no small evidence of the soundness of the doctrines heretofore upheld by this court, that with the powers restored by Parliament, the English admiralty now exercises nearly the same jurisdiction which this court had previously maintained to be the appropriate and legitimate power of a court of admiralty. A synopsis of the jurisdiction of the English admiralty, as now established, is stated in 1 Kent's Com., 371, 372, in the notes. But it is proper to remark, that in stating in these notes the admiralty jurisdiction as recognised in the United States, I think it is stated too broadly-broader than this court has sanctioned; for, as regards the jurisdiction in policies of insurance, I believe it has never been asserted in any circuit but the first, and certainly has never been brought here for adjudication.

This brief review of the long contest in England, between the Courts of King's Bench and the admiralty, seemed to be necessary, as it shows past doubt that the efforts of the former to take away the jurisdiction of the latter, and to compel the suitors to seek redress in the King's Bench, did not arise from any anxiety to preserve free institutions, and that the charges made against the admiralty, of favoring despotic principles, and usurping powers which did not belong to it, are without foundation. It shows, moreover, that the persevering encroachments of the King's Bench, and its unwarranted construction of the English statutes, were constantly disputed and opposed by enlightened jurists. The contest was carried on to a very late period, with varying decisions, in the Court of King's Bench itself, upon the subject, and no certain and definite line of jurisdiction in admiralty appears to have been fixed and established, even at the period of the American Revolution, and indeed not until the passage of the late act of Parliament.

And if we are to look to England for an example of enlightened policy in the Government, and a system of jurisprudence suited to the wants of a great commercial nation, or a just and impartial administration of the laws by judicial tribunals upon principles most favorable to civil liberty, I should not look to the reigns of Richard II, or of Henry IV, or Henry VIII, for either. And I should rather expect to find examples worthy of respect and commendation in the England of the present day, in her statute of 3d and 4th of Victoria, in the elevated and enlightened character of its present courts of justice, and in their mutual respect and consideration for the acts and authority of each other, without any display of jealousy or suspicion.

As to the unfavorable tendencies of the admiralty jurisdiction, it is perhaps sufficient to say, that under the Constitution of the United States it has no criminal jurisdiction; nor is the suitor without the protection of a trial by jury, if the legislative body which creates the court and regulates its powers think proper to give the right. There is nothing in the character and proceedings of the admiralty incompatible with the trial by jury. And, indeed, it has already been given to a certain extent by the act of Congress of 1845, and may at the will of Congress be given in every case, if it is supposed the purposes of justice require it.

I can therefore see no ground for jealousy or enmity to the admiralty jurisdiction. It has in it no one quality inconsistent with or unfavorable to free institutions. The simplicity and celerity of its proceedings make a jurisdiction of that kind a necessity in every just and enlightened commercial nation. The delays unavoidably incident to a court of common law, from its rules and modes of proceeding, are equivalent to a denial of justice where the rights of seamen, or maritime contracts or torts, are concerned, and seafaring men the witnesses to prove them; and the public confidence is conclusively proved by the well-known fact, that in the great majority of cases, where there is a choice of jurisdictions, the party seeks his remedy in the court of admiralty in preference to a court of common law of the State, however eminent and distinguished the State tribunals may be.

The opinions of Lord Coke, in all matters relating to the laws and institutions of England, were deeply impressed upon the English nation, and for a long time exercised a controlling influence. But with the advance of knowledge, and a more enlightened judgment in the science of government and jurisprudence, the courts of justice have not shut their eyes to errors committed under the influence of prejudice or passion. This is evident from the language of Mr. Justice Buller hereinbefore mentioned, by the respect shown to the jurisdiction and authority of the admiralty in the case of the Flora, in 1st Hag., and by the recent act of Parliament, and I can see no good reason for fostering in the common-law courts of this country, whether State or Federal, opinions springing from prejudices which arose out of the conflicts of the times, and which tend to create jealousies and suspicions on their part, and produce discord instead of harmony and mutual good feeling in the tribunals of justice. These jealousies and suspicions of Lord Coke undoubtedly grew out of the vehement conflicts, personal as well as political, in which he was so prominently engaged during all his lifetime. They have been discarded and disowned in the courts of the country from which we derived them, and also emphatically repudiated by the stat. of 3 and 4 of Victoria.

And believing, as I do, upon the best consideration I am able to give to the subject, that the decision and the principle upon which the opinion of the court founds itself is inapplicable to the case before us, and that if it is carried out to its legitimate results it will deprive the admiralty of power, useful, and indeed necessary, for the purposes of justice, and conferred on it by the Constitution and laws of the United States, I must respectfully record my dissent.