Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/1761_r.zip/CHAPTER.2

Text File | 1993-03-21 | 7KB | 115 lines

                            Admiralty

     "The technical niceties of the common law are not regarded. .
. .", 1 R.C.L.  31, p. 422. "A jury does not figure, ordinarily,
in the trial of an admiralty suit. . . the verdict of the jury
merely advisory, and may be disregarded by the court." 1 R.C.L.
40, p. 432. "[The] rules of practice may be altered whenever found
to be inconvenient or likely to embarrass the business of the
court." 1 R.C.L. 32, p. 423. "A court of admiralty. . . acts upon
equitable principles." 1 R.C.L. 17, p. 416.

     "A libel of information [accusation] does not require all the
technical precision of an indictment at common law. If the
allegations describe the offense, it is all that is necessary; and
if it is founded upon a statute, it is sufficient if it pursues the
words of the law." The Emily v. The Caroline, 9 Wheat. 381
(Insertion added).

     "I concur with my brethren in sustaining the decree below, but
cannot consent to place my decision upon the ground on which they
have placed theirs. I think it high time to check this silent and
stealing progress of the admiralty in acquiring jurisdiction to
which it has no pretensions. Unfounded doctrines ought at once to
be met and put down; and dicta, as well as decisions, that cannot
bear examination ought not to be evaded and permitted to remain on
the books to be commented upon and acquiesced in by courts of
justice, or to be read and respected by those whose opinions are to
be formed upon books. It affords facilities for giving an undue
bias to public opinion, and, I will add, of interpolating doctrines
which belong not to the law.
     "I have now said a great deal on this subject, and I could not
have said less, and discharged the duty which I feel I owe to the
community. I am fortifying a weak point in the wall of the
Constitution. Every advance of the admiralty is a victory over the
common law; a conquest gained upon the trial by jury. The
principles upon which alone this suit could have been maintained
are equally applicable to one-half the commercial contracts between
citizen and citizen. Once establish the rights here claimed, and it
may bring back with all the admiralty usurpations of the fifteenth
century. In England there exists a controlling power, but here
there is none. Congress has, indeed, given a power to issue
prohibitions to a district court, when transcending the limits of
the admiralty jurisdiction. But who is to issue a prohibition to
us, if we should ever be affected with a partiality for that
jurisdiction?
     "I therefore hold that we are under a peculiar obligation to
restrain the admiralty jurisdiction within it proper limits.
     ". . . (t)hat in case of contracts it has no jurisdiction at
all in personam, except as incident to the exercise of its
jurisdiction in rem."  J. Johnson, concurring remarks in Ramsay v.
Allegre (1827), 12 W. 611, 614.

     "(B)y attempting to introduce the admiralty jurisdiction of
the civil law,. . . a foundation is laid for interminable conflicts
of jurisdiction between the courts of the state and the Union.
     "It is vain to contend that the 7th Amendment will be any
efficient guarantee for the right, in suits at common law, if an
admiralty jurisdiction exists in the United States commensurate
with what is claimed by the claimant in this case. Its assertion
is, in my opinion, a renewal of the contrast between legislative
power and royal prerogative, the common and the civil law striving
for mastery; the one to secure, the other to take away, the trial
by jury, judicial power must first annul the 7th Amendment or
judicial subtlety transform a suit at common law into a case of
admiralty and maritime jurisdiction, before I take cognizance of
such a case as this without a jury."
Bains v. The Schooner James & Catherine (1832), 2 Fed. 410, pp.
565-566.

     "(A)nd I have Craddock's case, and Leigh and Burleigh's case,
in which the court of Admiralty was expressly prohibited from
proceeding in personam, in behalf of material-men. I should think
here I have a right to demand, if from the whole library of law
books, and God knows that we have enough of them already, "camel
loads", a single attempt to proceed in personam, upon a contract in
the admiralty, except for seaman's wages, since the date of the
resolutions of 1682, can be extracted. Adjudged cases cannot be
found, because, since the antique cases to which I have referred,
the right has been abandoned. Dicta enough can be produced, and
some of those very modern.
     "Godbolt speaks of the process in rem, as the only process
issuable in the first instance from the admiralty.
     "In the addition of Abbott which I have quoted, in a note upon
the case of Hoar v. Clement, p. 136, case arising on a contract for
necessities, it is admitted, "that the court of admiralty had no
jurisdiction over the person in that case."
     "In Keble's Reports, p. 500, quoted by Brown, it is expressly
said, "that without a stipulation, the admiralty has no
jurisdiction at all over the person." (p. 629).
     "Let the cases be searched from the remotest period down to
the time of Menetone v. Gibbons, 3 T. R. 267, and the ground of
prohibition, and of recovery, under the 2nd of Henry IV, will be
found to be the competency of the common law to enforce the
contract. This is the principle by which even their jurisdiction in
rem is controlled, and hence it follows that in no case in which
they are prohibited from proceeding in rem can they have the action
in personam."  Ramsay v. Allegre (1827), 12 W. 611.

     "What boots it, that I am protected by that Constitution from
having the obligations of my contracts violated, if the legislative
power can create a contract for me, or render binding upon a
contract which was null and void in its creation? To give efficacy
to void contract is not, it is true, violating a contracting, but
it is doing infinitely worse; it is advancing to the very extreme
of that class of arbitrary and despotic acts which bear upon
individual rights and liabilities, and against the whole of which
the Constitution most clearly intended to interpose a projection
commensurate with the evil."  Satterlee v. Mathewson, 2 P. 380,
414, 415, J. Johnson dissenting.

     "The jurisdiction of the admiralty depends, or ought to
depend, as to contracts upon the subject matter, i. e., whether
maritime or not;. . . "  DeLovio v. Boit, 2 Gall. 398, Fed Cas. No.
3,776.