ably to be found in the fact that the case was decided only two years after the compromise resolutions of 1632 had been entered into, and while they were yet deemed to be in force. By these resolutions the jurisdiction of the admiralty was recognized in libels for building and for domestic supplies, and the decision in Tasker v. Gale followed the resolutions. Again, it was admitted that suit could be brought in the admiralty upon a hypothecation of the ship made at sea. The longest debate between the common law and the admiralty concerned the right to sue in the admiralty upon a hypothecation made in a foreign country on land. In Bridgeman's Case, Hob. 11, Id. (1615) Moore, 918, a prohibition was granted against a suit in the admiralty to hold a ship for money borrowed at Seville by the master. The prohibition seems to have issued because the money was borrowed on land, and so the suit was deemed to be beyond the admiralty jurisdiction, inasmuch as that jurisdiction was limited by the statute of Richard II to matters arising upon the high seas. "The admiralty court hath no power over any case at land, for both by the nature of the court and by the statute it is only to meddle with things arising upon the high seas.' It is true that in the opinion mention was also made of the right of the master to pledge the ship in case of necessity, but the chief justice recognized that the decision went altogether upon the want of jurisdiction of the admiralty court, and not upon substantive admiralty law. He said, "I am of opinion clearly that, if this case had been within the jurisdiction of the admiralty, that we should not prohibit them because they gave sentence against our law in this point of impawning, for it shall be presumed according to their law, or else to appeal." See Jenkins' Life, I, 83. So, in Cradock's Case (1610) 2 Brownl. & G. 37, "it was cited to be adjudged that, if a contract be made at Roan, in France, that shall not be tryed in the admiral court, for that it was made upon the land, and not upon the sea." See Johnson v. Shippen, 2 Ld. Raym. 982; Thomlinson's Case, 12 Coke, 104. In Cossart v. Lawdley (1688) 3 Mod. 244, a prohibition was issued in case of a hypothecation, and a suit was ordered to be brought at common law upon the necessity of borrowing; but, when a suit was brought against the original libelant under the statute of Richard II, Chief Justice Holt seems to have decided for the defendant, saying that there was no color for the prohibition, as the matter was triable only in the admiralty court, though the hypothecation was in a foreign land. Corset v. Husely, Comb. 135, Holt, 48. This construction of the statute of Richard II, which permitted the admiralty to take jurisdiction of a suit against a ship upon a bottomry bond made abroad and on land, became the established law. See Lister v. Baxter (1726) 2 Strange, 695; Watkinson v. Bernardiston (1726) 2 P. Wms. 367. That the right to sue in the admiralty for advances, repairs, and supplies depended altogether upon the territorial jurisdiction of the admiralty, and not upon substantive admiralty law, is further illustrated by Godfrey's Case, Latch. 11 (Temp. Jac. I), where it is said that, if the ship lies at anchor, wanting victuals, and sends to J. S. to bring victuals, then the contract is made on the ship, therefore upon the sea, and so the matter is triable in admiralty; otherwise if the contract is made on land, and the victuals are afterwards sent to the ship. Here the ownership and situation of

the vessel, the nature of the supplies, the necessity of victuals, and all concomitant acts are precisely the same, yet the right to libel the ship is made to depend wholly upon the technical locus contractus. See Thomlinson's Case (1605) 12 Rep. 104; Cradock's Case (1610) 2 Brownl. & G. 37. The case of Tucker v. Cappes (1625) 2 Rolle, 492, 497, illustrates the confusion into which the courts of common law sometimes fell concerning matters of admiralty and foreign law. The question did not concern a lien, but apparently a suit for demurrage. One judge observed incidentally, referring to the colony of Virginia, that the admiral's court has jurisdiction of acts done in all countries except England, because all other countries are governed by the civil law. See Delabroche v. Barney (1589) 3 Leon. 232; Ball v. Trelawny (1641) Cro. Car. 603. In Watson v. Warner (1659) 2 Sid. 161, it was stated that by the rules a person could be attached in the admiralty as well as the ship. In that case the court was governed by the statute of the commonwealth above referred to, and some rules may have been made thereunder of which no record can now be found; otherwise it would seem that the reporter must have misunderstood the case. In Smith v. Tilly (1665) 1 Keb. 708, after the restoration, and at a time when the statutes of the commonwealth were not in force, the court was divided concerning the granting of a prohibition in the matter of a libel against a ship for provisions and wages, "which hath been in these cases so constantly used, but in other cases it's against the parties. But per cur. this is but a device, and the parties may come in and be admitted pro interesse, as if the original process were against them. I Cr. 296 (the resolutions of 1632) is an anomalous collection, and by this course, if the butcher or baker sue or be sued for meat sold to the master, it should be in the admiralty, which would be inconvenient. But there not appearing any rule for prohib. adj." Page 712: "The court were divided Hyde & Wyndham against Twisden & Keeling, that this libel against a ship for provisions is as good as for mariners' wages; but by Keeling this is but by sufferance, because they are poor men and going to sea. Also Wyndham doubted that a ship may be pawned in England, but by Keeling clearly it cannot be pawned in England, but only by distress beyond sea." The case shows that the want of jurisdiction in the admiralty over a libel for domestic supplies was not yet completely settled. The resolutions of 1575 and 1632 and the statutes of the commonwealth had somewhat affected legal opinion. Moreover, the common-law judges, or at least their reporters, began to confound the question of jurisdiction with that of substantive law. In Coomes v. Jenkinson (1675) 3 Keb. 398, the jurisdiction of the admiralty under the conditions supposed was denied, and prior statements to the contrary were declared to be "exploded opinions." See Merryweather v. Mountford (1676) 3 Keb. 552; Hoare v. Clement (1684) 2 Show. 338, which cases show that the admiralty still claimed jurisdiction. That the right to sue in the admiralty depended, not upon substantive law, but upon the place where the contract was made, is still further illustrated by cases in which a foreign ship was repaired in England. Here the necessity of repair, the absence of the owner, and other circumstances were the same as those attending the repairs of an English ship abroad. Yet the court

of admiralty was deemed to be without jurisdiction. Thus, in Justin v. Ballam (1702) 1 Salk. 34, a foreign ship in distress purchased supplies at Ratcliffe upon the Thames. The ship was libeled in the admiralty, and in arguing the question of prohibition counsel for the libelant relied upon a case which sustained the jurisdiction of the court over a libel against an English ship hypothecated in Holland. The court of king's bench observed:

"By the maritime law the contract of the master implies an hypothecation, but by the common law it is not so, unless it be so expressly agreed. In the Case of Coster there was an express hypothecation, and that was in a place where hypothecations were allowed good. For that reason we allowed the jurisdiction of the admiralty in that case, for there was no remedy at common law; but in this case there is nothing but a mere common contract at land."

A prohibition was therefore issued. See Benzen v. Jeffries (1697) I Ld. Raym. 152. The Henrich Bjorn, 11 App. Cas. 270, 282. In defending the jurisdiction of the court of admiralty, Zouch observes:

"Some amongst us as take upon themselves to determine that to the jurisdiction of the admiralty of England no special or certain causes do belong. So the Lord Hobard in Audley and Jenning's Case affirmes that their jurisdiction is not in respect of any certain cases, as the causes of Tithes and Testaments are in the Spiritual Courts, but only in respect of place; and no doubt but Sir Edward Cook and others, who talk so much of altum mare, are themselves perswaded and would perswade others to be of that opinion." Zouch, Adm. p. 28.

The language of the common-law courts, indeed, does not always distinguish between matters of jurisdiction and of substantive law. Thus Lord Mansfield said:

"Work done for a ship in England is supposed to be on the personal credit of the employer. In foreign parts the captain may hypothecate the ship." Wilkins v. Carmichael, 1 Doug. 101.

And Lord Hardwicke said:

"If at sea, where no treaty or contract can be made with the owner, the master employs any person to do work on the ship, or to new rig or repair the same, this, for necessity and encouragement of trade, is a lien upon the ship, and in such case the master, by the maritime law, is allowed to hypothecate the ship." 2 P. Wms. 367. See Ex parte Shank, 1 Atk. 234.

Very likely Lord Hardwicke meant no more by this expression than to say that the master abroad might hypothecate the vessel by bottomry. With all respect for these great judges, it must be said frankly that their dicta, if taken literally, represent neither the old admiralty law of England nor the common law, but merely the resultant of the two as worked out through a conflict of territorial jurisdiction. The admiralty law gave a lien upon the ship whether the work was done in England or not. The common law gave no lien upon the ship whether the work was done in England or not. See Buxton v. Snee, I Ves. Sr. 154; Menetone v. Gibbons, 3 Term R. 267. By the courts of common law, as has been said, the court of admiralty was at last allowed jurisdiction of a suit on bottomry bond made in the course of a voyage, whether executed on land or at sea. Lord Kenyon observed that the practice had been settled since the days of Lord Raymond. "Then, if the admiralty has jurisdiction over the subject-matter, to say that it is necessary for the parties to go upon the sea to execute the in

strument borders upon absurdity." Id. 269. Mr. Justice Buller further observed, "The question whether the court of admiralty has or has not jurisdiction depends on the subject-matter." Id. These statements just quoted illustrate the confusion, before referred to, of jurisdiction and substantive law, and they directly contradict the statute of Richard II, and the well understood and established practice of the courts of common law in preceding centuries. The jurisdiction of the English court of admiralty, as declared by the courts of common law, depended generally, as Zouch says, not upon the subjectmatter, but upon the locality. The jurisdiction of the admiralty over bottomry bonds made in a foreign land was an exception introduced for convenience, like that which admitted suits for seamen's wages. From early times, indeed, the courts of common law permitted seamen to sue in the admiralty. Later they decided that a master could not sue there, though the court of admiralty was ready to take jurisdiction. The distinction depended, not upon any difference in the substantive law of the admiralty, but merely upon the fact that the courts of common law had, as a matter of convenience and mercy (Abb. Shipp. [7th Am. Ed.] 820, 830; Ewer v. Jones, 6 Mod. 25; The Mariners' Case, 8 Mod. 379), permitted the jurisdiction of the court of admiralty in one case, while denying it in the other. The court of admiralty then was permitted by the courts of common law to exercise (1) jurisdiction of matters arising upon the high seas (this jurisdiction never having been denied), and (2) jurisdiction of suits for seamen's wages and of suits upon bottomry bonds made in foreign countries (this jurisdiction being exceptional and allowed only for the sake of convenience). Further exceptions must be created by statute. Saving for manifest exceptions, the jurisdiction was made to depend, not upon subject-matter, but upon locality.

After the attempt had failed to get relief in the admiralty, and to hold the ship itself for repairs and supplies, the materialmen had to resort to courts of common law, and there to bring suit against the owners. The right of a materialman to sue the owner on a contract entered into by the master depended upon the law of agency. If the master, as agent, had authority to bind his principal, and in making the contract acted within the scope of his authority, the owner was bound; not otherwise. Maritime law and custom were properly resorted to in order to determine the scope of the master's authority. "Eyre, J., held there was no difference between a land carrier and a water carrier, and that the master of a ship was no more than a servant to the owners in the eye of the law, and that the power he has of hypothecation, etc., is by the civil law." Boson v. Sandford, 2 Salk. 440. At first it seems that the authority of the master was presumed. "It was held that prima facie the repairer of a ship has his election to sue the master who employs him or the owners, but, if he undertakes it on a special promise from either, the other is discharged." Garnham v. Bennett, 2 Strange, 816. Later it was said that, if the owner was absent, the master could bind him, but, if he was present, the contract bound only the master. "Under the general authority which the master of a ship has, he may make contracts and do all things necessary for the due and proper

prosecution of the voyage in which the ship is engaged. But this authority does not usually extend to cases where the owner can himself personally interfere, as in the home port, or in a port in which he has beforehand appointed an agent who can personally interfere to do the thing required. Therefore, if the owner or his general agent be at the port, or so near it as to be reasonably expected to interfere personally, the master cannot, unless specially authorized, or unless there be some usual custom of trade warranting it, pledge the owner's credit at all, but must leave it to him or to his agent to do what is necessary. But, if the vessel be in a foreign port, where the owner has no agent, or if in an English port, but at a distance from the owner's residence, and provisions and other things require to be provided promptly, then the occasion authorizes the master to pledge the credit of the owner." Arthur v. Barton, 6 Mees. & W. 138, 143. And, if the port of repairs was not far distant from the owner's port, the jury was to determine if the supplies were obtained for the necessary use of the vessel upon credit given to the owner; i. e., if the master, in pledging the owner's credit, was acting within the scope of his agency. The nearness of the owner was an element in determining if the purchase of supplies without consulting him was reasonably necessary. In other words, the presence or absence of the owner was a circumstance bearing upon the authority of the master to bind him. See Edwards v. Havill, 14 C. B. 107; Robinson v. Lyall, 7 Price, 592; Beldon v. Campbell, 6 Exch. 886; Johns v. Simons, 2 Q. B. 425; Webster v. Seekamp, 4 Barn. & Ald. 352; Cary v. White, 5 Brown, Parl. Cas. 325.

The liability of the owner of a vessel in contract for the acts of his authorized agent is a thing quite different from a lien arising from the act of repairing or of supplying. This appears from the cases in which the legal owner of a vessel was held not liable for the acts of the master duly appointed, upon the ground that, notwithstanding the legal ownership, the master was not his agent. Thus, where the vessel was under a charter which provided that the charterer should repair, the owner was held not bound, though the materialman knew nothing of the charter. Reeve v. Davis, 1 Adol. & E. 312; Frazer v. Marsh, 13 East, 238. Although these cases have no direct bearing upon the lien of the materialman, yet in the diminished state of the English admiralty jurisdiction, which prevented an action directly against the vessel, the lien and the owner's liability were confused. Thus, in Rich v. Coe, 2 Cowp. 636, 639, Lord Mansfield said: "Whoever supplies a ship with necessaries, has a treble security: (1) The person of the master; (2) the specific ship; (3) the personal security of the owners, whether they know of the supply or not." And see Farmer v. Davies, 1 Term R. 108; Reeve v. Davis, 1 Adol. & E. 312. It is possible that the theory of a right to proceed against the ship was connected with the theory, sometimes discussed, that the master, though the agent of the owners, could not bind them beyond the value of the ship. See Yates v. Hall, 1 Term R. 73, especially the opinion of Mr. Justice Buller. Probably the latter theory arose from a confusion between the general maritime law and the common law of agency. Certainly it is foreign in the latter, and it leads