A TREATISE ON THE LAW OF MARITIME PROPERTY AND CONTRACTS. BOOK III. ON THE LAW AND JURISDICTION OF ADMIRALTY. INTRODUCTORY. IN treating of the Law of Admiralty, we necessarily encounter some topics which have already received more or less consideration in the chapters on Shipping, and those on Insurance. This is especially true of questions of prize, of blockade, of neutrality, of contraband, and generally of all those which grow out of a state of war. When these questions present themselves directly, they are, for the most part, within the exclusive jurisdiction of admiralty. And the same thing is true of salvage and collision and some other topics. But all these questions come before other courts in a collateral and incidental way; as in cases of Insurance, and in others involving the law of Shipping. Then, these other courts generally look to courts of admiralty for the determination of the law; and accepting the law thus ascertained, they confine themselves to applying it to the cases before them. For this reason, it has been necessary to present these rules of Admiralty Law in those chapters on the Law of Ship ( 495 ) ping, and on Insurance, which relate to them. But we do not on that account, omit them wholly here; we retain them, however, only so far as is necessary to exhibit a systematic view of this subject. And we now present in reference to them, whatever views would seem to be suggested by their relation to the law of admiralty. CHAPTER I. THE EXTENT OF THE JURISDICTION OF ADMIRALTY. SECTION I. THE EXTENT AS DETERMINED BY PLACE. THE jurisdiction of the court of admiralty in England, is undoubtedly, aside from the jurisdiction conferred by recent statutes, confined to places outside the body of a county, and within the ebb and flow of the tide; being permanent where the tide always flows, and existing in any place between high and lowwater mark when the tide covers that place, and ceasing to exist there when the tide leaves that place.1 The admiralty powers 1 1 Blacks. Comm. 110; 4 id. 268; Constable's Case, 5 Coke, 106, 107; Barber v. Wharton, 2 Ld. Raym. 1452; 2 East, P. C. 803. See also 1 Kent, Comm. 366. But even if the locus be on the water and on a place where the tide never leaves the shore bare, admiralty is excluded of jurisdiction, if it be within the body of any county. This is by virtue of the statutes of 13 Rich. II. ch. 5, and 15 Rich. II. ch. 3, which were passed with a view of restraining the jurisdiction of the courts of admiralty. One of the reasons why these courts were obnoxious was, that they did not have a trial by jury, but followed the forms and were governed by the rules of the civil law, which was dreaded and detested by the English people; perhaps, because it was introduced by the clergy and used by them for their own aggrandizement. The civil law was especially fitted for the municipal form of government, but was antagonistic to the feudal system. See Pritchard's Digest, Preface; Wynne's Life of Sir L. Jenkins, p. 78; Thierry, Conquête de l'Angleterre, Vol. IV. p. 334-339; Browne, Civ. & Adm. Law, Vol. II. p. 91. There has been great contention in regard to the construction of the statutes of Rich. II. Anciently the judges depended upon the fees of their courts for their emoluments, and the common law courts, having the highest power, put such a construction on the statutes as very much abridged the rightful power of the admiralty; but the admiralty lawyers never acquiesced in this usurpation, and have recorded their protests against the deprivation of their authority. As the King's Bench has the controlling power, their decisions must be taken as the law of England, and they have held that the "bodies of counties" from which admiralty jurisdiction is excluded, comprehend all |