goods alleged to be forfeited. See Officium Domini v. Pirate Goods, Sel. Pl. II, 84. Here the arrest of the goods had an object other than that of obtaining security for satisfaction of judgment. So, where a prize was libeled by her captors. Gonner v. Pattyson, Id. 106. Yet the proceedings were in much the usual form, and all persons having claim were cited to appear pro interesse suo. See Officium Domini v. Goods ex a Hamburgh Ship, Id. 91. So where forfeiture was sought of a ship and goods belonging to an interloper in a monopoly. Merchant Adventurers Co. v. The Elizabeth George, Id. 150. So where a ship taken by pirates was returned to its true owner. Officium Domini v. The Eugenius, Id. 99. And so, generally, in possessory and petitory actions, where the return of ship or goods was sought by their owner. See Mason v. Trippe, Id. 117. So in cases of salvage. Again, where the ship had been expressly hypothecated, and was arrested to enforce the hypothecation, although the form of process resembled generally that employed to collect an ordinary debt, yet the arrest availed something more than to compel the owner's attendance. See Fleminge v. The Haddocke, Id. 191. Though the form of the decree might be personal or alternative, yet the hypothecation was not without effect upon the practical result of the suit. Again, by reason of the nature of maritime affairs, where the owner of the ship was unknown, the arrest gave a remedy practically unlike that of foreign attachment. If, for example, a ship had been in collision, or had been repaired or supplied on the order of her master, her unknown owner might be liable. In proceeding against the ship he need not be named. In a sense, the arrest of the ship might be no more than security that judgment should be satisfied, yet the practical result of the proceedings was not wholly like that of foreign attachment. Thus, in The Asunta [1902] Prob. Div. 150, 154, Sir Francis Jeune said:

"There is undoubtedly an old practice in the admiralty court of great value, which enables the owners of a ship or cargo in any admiralty action to sue as such, a proceeding which would have been regarded by the courts of common law with professional horror. But the court of admiralty allowed it for a very good reason,-because what they were really dealing with was one ship against another, and, so long as you had the names of the vessels, you had really all that was material."

For these reasons, and doubtless for others, the arrest of the ship in admiralty was deemed more and more a proceeding against the ship itself. The pleadings so describe it in many cases. Indeed, as is shown by the statement of Sir Francis Jeune just quoted, the personification of a ship in the law is to some extent almost an intellectual necessity. This personification has become more and more complete in the admiralty law of England and the United States. See The Thomas P. Sheldon (D. C.) 113 Fed. 779; The S. L. Watson, Id. As time went on, the allegation made by the libelant that he had no hope of redress other thar by arrest of the ship was treated as merely formal, and then abandoned. See Clerke's Praxis (Ed. 1798) p. 37. note. The tendency, probably increasing through the latter part of the sixteenth century, to treat many suits in which the defendant's goods were attached as suits brought against the ship itself, was

greatly strengthened by the action of the courts of common law in granting prohibitions to the court of admiralty. These became more common. Sel. Pl. II, p. xv. More and more the courts of common law got the upper hand. They were more jealous of the jurisdiction of the admiralty over suits in which a personal judgment was sought than where the decree was solely against the ship. The former suits were deemed encroachments, pure and simple, upon the common-law jurisdiction. The latter, it was perceived, sometimes gave a remedy where the court of common law was impotent. See Johnson v. Shippen, 2 Ld. Raym. 982. In 1632 resolutions of agreement were settled before the privy council, and signed by all the judges. The third resolution was as follows:

"If a suit be in the court of admiralty for building, amending, saving or necessary victualling of a ship, against the ship itself and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted though this be done within the realm." Godolphin, Adm. Jur. 157; Sel. Pl. II, p. 15.

Though these resolutions were repudiated some time afterwards by the courts of common law, there is reason to believe that they were observed for a time by both parties to the contest. The court of admiralty thus abandoned to a great extent its jurisdiction over suits in which a personal judgment was sought, while it was left in the enjoyment of undisturbed jurisdiction over suits against the ship itself, where no party defendant was named in the warrant of arrest or citation. Manifestly, a suit for building, repairs, or supplies, in which no defendant was named, could be brought only against the ship built, repaired, or supplied, and so the theory was confirmed that the building, repairing, or supplying a vessel was ground for suit in the admiralty against the vessel, without naming her supposed owner. This was establishedfurther by the statutes of the commonwealth of 1648, c. 112, which provided that "the court of admiralty shall have cognizance and jurisdiction against the ship or vessel with the tackle, apparel and furniture. thereof, in all causes which concern the repairing, victualling, and furnishing provisions for the setting of such ships or vessels to sea." By this act the remedy was expressly limited to the vessel repaired or supplied. See Watson v. Warner, 2 Sid. 161. The statutes of the commonwealth were avoided by the restoration, and the jurisdiction of the court of admiralty was at once narrowed by prohibition, but, as we shall see, the admiralty long asserted its former rights, even if in vain. It seems probable, therefore, that the lien or right to proceed against the vessel for its repairs or supplies which was recognized in English admiralty arose in part from the development of the procedure of the court. There is evidence that it arose also from a recognized principle of substantive admiralty law. It is true that Mr. Marsden observes (Sel. Pl. I, p. lxxii) that "scarcely a trace appears of the modern doctrine of arrest being founded upon a maritime lien." There is considerable trace of a doctrine that a maritime lien was deemed to arise upon a ship repaired or supplied. Thus, in Draper v. The Fortune (1580) Sel. Pl. II, 156, the sentence sets out that cables were "applied and converted to the necessary and beneficial use, reparation, and preservation of the said ship, and that by reason thereof from that time

the said ship was and remained hypothecated for the payment of the price of the same things and goods, and that she now remains hypothecated." See, also, Draper v. The Black Greyhound (1578) Id. 155; Simondson v. Manelli (1597) Id. 185. In Draper v. The Busbye, Id. p. lxx, the ship is said to be tacite hypothecata for necessaries. See Page v. The Blessing of God, Id. p. lxx. In precisely what proportions these two elements, (1) the development of procedure, and (2) the recognition of a tacit or implied hypothecation, operated to produce the theory of an implied lien as it existed in the middle of the seventeenth century, cannot be determined in our present state of knowledge. An examination of the records of the vice admiralty court of the provinces of Massachusetts Bay and Rhode Island in the first part of the eighteenth century shows a condition much like that just described. Libels in personam were common. Sometimes the suit is entitled against the vessel, and the decree is in personam. Sometimes the ship is libeled because the owner or master has failed to satisfy a personal decree. Fitch v. Tudor, Rec. I, 39. In suits between co-owners, the decree is often in rem, though the action is begun personally. In suits in rem for wages the decree may be that the owner pay, and that, if he does not, the vessel shall be sold. Where the vessel is attached, her owner, if accessible, is personally cited to appear. No case has been found in which the ship is libeled for a claim unconnected with her. Recognition of the liability of the ship, as distinguished from that of the owner or master, is common. Thus, in Fitch v. Tudor, the proponents "conceive the said ship is liable to answer and make good the same upon the said master's liability." In Winthrop v. Sloop Africa, I, 132, the decree recites supplies "wherewith the said sloop is affected and for which she is liable." See Hodskins v. Sloop Argyle, I, 114. In Pemberton v. Ship Maunsell, I, 62, the ship is said not to be liable for certain claims, but leave is given to push them against a former owner. It is to be noted that in the practice of these vice admiralty courts the libel was first exhibited and read. It might pray for a personal citation, or for an arrest of the res, or for both. The monition or citation followed. In some cases the master was cited by proclamation at the mainmast of the vessel. Littleton v. James, I, 10. See The Clara, R. I. Adm. Pap. 29. For the proceedings of the colonial court of admiralty in the seventeenth century, see Records of the Court of Assistants, Colony of the Massachusetts Bay, vol. I. As the same court, composed largely of laymen, administered both admiralty. and common law, confusion between the two was natural. Thus a libel brought by the master of a vessel against the vessel and owner for wages and disbursements resulted in a personal decree against the owner and an execution in common form levied on the ship. Skinner v. The Dove (1675) p. 372. See, also, Bromehall v. The John and Benjamin, p. 373; Gretson v. The Pink Expectation, Schinchinke, Owner, pp. 178, 378; and generally passim.

The admiralty jurisprudence of England thus recognized a lien of some sort, or a right to proceed against the vessel, in favor of the materialman for repairs and supplies furnished to her; and this whether they were furnished at home or abroad, in case of exceptional necessity, or in the ordinary course of operations. The earlier cases show

no distinction between foreign and domestic repairs and supplies. Lord Stowell said in The Zodiac, 1 Hagg. Adm. 320:

"In most of those countries governed by the civil law, repairs and necessaries form a lien upon a ship herself. In our country the same doctrine had for a long time been held by the martime courts; but after a long contest it was finally overthrown by the court of common law and by the highest judicature in the country, the house of lords, in the reign of Charles II."

See The Alexander, I Dod. 278.

Even in Lord Stowell's day, although the court of admiralty was prohibited from enforcing a lien upon a vessel in favor of a domestic materialman, yet, if the vessel had been sold for other sufficient causes, and the proceeds were in the registry of the admiralty court, that court was for a time allowed to enforce a lien upon these proceeds. See. The John, 3 C. Rob. Adm. 288. This curious survival arose from the failure of the courts of common law to prohibit the enforcement of a lien upon the proceeds, while they strenuously prohibited the enforcement of a lien upon the vessel. By the admiralty law the lien existed in both cases. It is true, as has been said, that the court of admiralty did not distinguish greatly between a lien proper for supplies and a right to attach a ship by legal process and sell her to satisfy the bill for supplies furnished her. The latter right, though different in theory, yet answers much the same purpose as a lien, and is hardly distinguishable from it, unless a question of priority arises. The suit is regarded as brought against the vessel, not to collect the owner's debts, but to enforce payment of a debt for which the vessel itself is deemed liable. The right to proceed against the ship irrespective of its owner, to hold the ship liable for what were deemed the ship's debts, was in issue, rather than the precise order in which the ship's debts were to be paid. If the ship can thus be proceeded against, a lien of some sort is recognized, though its rank is left undetermined. The case put is not that of a suit brought on a personal liability which is enforced by an attachment of the owner's property on mesne process. The primary suit is against the ship, and it has come to pass that the ship cannot be proceeded against for a debt of her owner unconnected with her. "For the common course of proceedings in the admiralty in cases of this nature is by process to arrest the ship, and 'tis that which brings in the proprietors pro interesse suo, and then the libel follows." Child v. Sands (1693) Carth. 294. See Greenway v. Barker (1613) Godb. 260; Watson v. Warner (1659) 2 Sid. 161. The lien or similar right in the vessel given generally to a materialman by the English system of admiralty law was deemed to cover repairs and supplies wherever furnished. Thus Sir Leoline Jenkins said:

"But the greatest discouragement of all is that of materialmen; such as furnish tackle, furniture, or provisions for the repairing of ships or setting of them out to sea. When they are not paid at the time appointed, they arrest the ship, which will bring all the part owners to answer for it; but if, when they declare in the admiralty, a prohibition be granted, the remedy will be against the master alone, who, tho' he bespoke the materials, is commonly not worth the 20th part of the action. And these materialmen have often offer'd to make it demonstrable before his royal highness that if the ship shall be subject to their arrest without danger of a prohibition (because the contract was upon the land) an 100 sail of ships shall be furnished and set out with more ease and less time than 5 now can be, as the practice of pro

hibiting hath lately been. For there is not any master but may command £1,000 worth of goods upon his ticket in a morning, when the materialmen do know that they may arrest a ship with effect in case he and his owners don't come and give each materialman such money or security as will content him. Whereas, if they be forced for their remedy to common law against the master and his part owner (who are most commonly persons unknown, and at a distance), they had better keep their wares in their shops than pursue so many upon such unequal terms." "But the greatest convenience of all will be the encouragement to materialmen. If they be but secure of their action against the ship, there is nothing in their warehouse but will be forthwith furnished upon the credit of the ship. And if we may believe men of experience, this will contribute more effectually than anything to his majesty's designs for the increase of shipping and the encouragement of navigation. And if the bill before your lordship will naturally produce these effects, as it certainly will, I need not enlarge any other conveniences." Jenkins' Life, vol. I, pp. lxxvi, lxxxiii, lxxxiv.

This argument plainly shows that a personal action to be brought in the court of admiralty against the shipowner was not then desired by the supporters of the admiralty jurisdiction, but only a suit in rem against the ship for both domestic and foreign furnishings. See The Champion, Fed. Cas. No. 2,583. It is true that in 1835 the judicial committee of the privy council in The Neptune, 3 Knapp, 94, 115, said that the maritime law of England had never given a lien for domestic supplies. To this statement it must be replied that a decision of the highest court makes law, but its opinion cannot change past events. The historical error thus made by the privy council has already been demonstrated, and will still further appear.

We have next to consider what were the limits imposed upon this enforcement of the lien for repairs and supplies by courts of common law. In studying the early reports of cases of prohibition, several things must be noted: First. The report was unofficial, and was often prepared with less care than that used at the present time. The report, therefore, is not always quite intelligible. Second. The fact that a prohibition was sought and obtained proves two things: (a) That the admiralty court claimed, and (b) that the common-law court denied, the jurisdiction of the admiralty in the case supposed. The granting of a prohibition proves the claim quite as thoroughly as it proves the denial. Third. The decided cases exhibit a conflict between two courts and two systems of law; a conflict which lasted for several centuries, and in which the court of common law was the stronger, and finally prevailed, while yet the court of admiralty never admitted itself to be in the wrong. In the course of the struggle several compromises were proposed, and the result finally reached had the nature of a compromise, though the admiralty obtained very little of its original claim. The decisions, therefore, are not altogether consistent with each other. The jurisdiction of the admiralty in case of supplies furnished in a domestic port was denied in Leigh v. Burley (1610) Owen, 122, but in Tasker v. Gale (1634) 1 Rolle, Abr. 533, it was said that, if a shipwright sues in the admiral's court for the fittings of the ship for navigation at sea, no prohibition lies. This case has often been quoted to show that the courts of common law recognize the right to sue in the admiralty under the conditions stated. Yet nothing. is plainer than that the courts of common law generally denied the right. The explanation of the statement in Tasker v. Gale is prob