a policy of insurance is one of those maritime contracts within this jurisdiction."

He says the question is historical, not to be settled by reasoning a priori, which would lead to "theoretical anomalies."

Although in the case of Younger, Judge Curtis followed the practice of his circuit, and upheld the jurisdiction in policies of insurance, he did so "holding himself free to go into it at large, and with all the aids of more recent investigations, when it shall arise in the appellate court."

Mr. Justice Campbell, in Jackson v. Steamboat Magnolio, 20 How. 335, referring, in giving a dissenting opinion, to the case of De Lovio v. Boit, said: "The question of jurisdiction arose on a libel founded on a policy of insurance, and the jurisdiction of the court was sustained. I believe I express a general, if not universal opinion of the legal profession, in saying that this judgment was erroneous. I understand Judge Curtis to intimate the existence of such an opinion in The Gloucester Ins. Co. v. Younger, 2 Curt. 322."

Mr. Justice Daniel, who uniformly controverted the pretensions for an extended admiralty jurisdiction, and never, while on the bench, lost an opportunity to protest, but invariably dissented from the whole court, also understands Mr. Justice Curtis to expressly disavow his predecessor's decision in De Lovio v. Boit.

Here may well be recorded a particular and general regret that, as in the case of The John Perkins (21 L Rep. 87), the distinguished jurist, presiding in the first circuit, did possibly adhere too tenaciously to a precise technical rule, in order to reverse a seemingly fair admiralty decision of Judge Ware; so, in the case of The

Gloucester Ins. Co. v. Younger (2 Curt. 322), the same circuit judge appears to have surrendered too readily his obvious legal convictions, in order to conform to a questionable practice, prescribed by a single precedent, and that sustained only in the first circuit where it was first pronounced.

The professional regret is more poignant, inasmuch as the court, by following its judicial convictions, in this latter case, would have secured (what many desired) a final rehearing of the decision in 1815 before the Appellate Court at Washington, the loss of which all now must deeply lament.

Though the precise question, whether the district courts of the United States could, in admiralty, take cognizance of suits or libels on policies of insurance, has not been directly passed upon by the Appellate Court, nevertheless, the subject of admiralty jurisdiction, in general, has often been before that court, and elaborately discussed by its individual members when incidentally brought there for consideration; and whenever so discussed, great learning and much research have been exhibited in such discussion. The chief and prominent topics so dealt with have usually been Writs of Prohibition in England, and when upheld; the effect of the restraining Acts of the 13th and 15th of Richard II. (now repealed); the Ordinance of Hastings in 1272; the Agreement of 1575; and Coke's answer to its seventh Article; the Resolutions of 1632; the Acts during the period of the English Commonwealth of 1648; the Restoration, and the consequent repeal of those Acts in 1660; the legislation by Parliament in 3 & 4 Wm. IV.; also in 3 & 4 Vict. chap. 65, and 17 & 18 Vict. chaps. 78 and 104; the old English tests of locality, infra corpus

34

ACTION OF AMERICAN

comitatus and infra primos pontes; nature of the Contract and Tort; contests of the Civil and Common-law Courts in England; the United States Constitution; the General Judiciary Act of the United States in 1789; also that of February 26, 1845; States rights, and right of trial by jury generally.

While the great struggle was going on in England, and after the "Lex Mercatoria" had been published, and the acts of 1648, under the Commonwealth, were adopted, the subject of admiralty and maritime law also occupied the attention of the Colonists in America. In Massachusetts, as early as 1650 and 1651, this subject was noticed by its Legislature.

In the Massachusetts Records, vol. iii. page 193, it appears that the General Court, May 23, 1650, deemed the "Commonwealth defective for want of Lawes in marytime affayers; but as there were many good lawes in our land, in the French nation and other kingdoms and nations," it therefore ordered a committee to peruse the "Lex Mercatoria," so that this court might adopt such as it approved.

But that committee, not having met, on October 14, 1651, the court thereupon appointed Mr. Nowell and the Auditor-General to act and report to the next General Court. If any report was ever made, no definitive action was taken by the General Court, until October 14, 1668 (Mass. Rec., vol. iv. part 2, page 388), when it adopted the first admiralty code in this State, which will be found printed in full in Appendix (D). While it indicates that the rights of owners, duties of masters and mariners, average, collision, damage, punishments, desertions, negligence, proper equipment and supplies for vessels, etc., were cognizable by this maritime court;

COLONISTS IN MASSACHUSETTS.

35

which was constituted expressly "for the better ordering" of "the navigation and maritime affairs" of this jurisdiction, then "growne to be a considerable interest," still the title of insurance is not named or even alluded to.

In 1672 (ibid. p. 575), it was ordered that "henceforth all cases of admiralty shall be heard and determined by the Court of Assistants, and to be issued by the bench without a jury," unless for cause satisfactory to the

court.

In this review of a single decision, the judicial ability of its author, his learning and labors, are duly appreciated and fully recognized.

Perhaps to the comments of others, one other reference should be added, rather by way of suggestion than as an assumption or implication, that any important matter had been left unconsidered, or overlooked by those who had hitherto entered upon and seemingly exhausted the discussion; and this reference may or may not have force and effect in fixing the meaning of the terms "Admiralty" and "Maritime," and limiting or qualifying their significance in defining jurisdiction.

In Great Britain, neither the Admiralty Court, known as the High Court of Admiralty, nor the appellate admiralty courts, known as that of the Lords Commissioners, Delegates, or Judicial Committee of the Privy Council, appear to have ever, at any time, taken cognizance of cases arising on policies of insurance.

But, on the contrary, for this particular class of cases, at the period when Sir William Blackstone prepared his Commentaries, there had existed in London, a special court, denominated "The Court of Policies of Insurance." Vide 43 Elizabeth, chap. 12.

36

COURT FOR INSURANCE IN ENGLAND.

In the chapter on Courts of Special Jurisdiction (3 Black. 74, 75), that learned commentator gives an account of this special court, which will be found in full in the Appendix (E).

At first, these matters of assurance were submitted in London to a course of arbitration by "grave and discreet merchants" appointed by the Lord Mayor; but "divers persons" having "withdrawn themselves from this course," "had driven the assured to bring separate actions at law against each assurer:" and, therefore, by an enabling act, Parliament empowered the Lord Chancellor to "grant a Standing Commission to the Admiralty Judge, Recorder, two Doctors of the Civil Law, two common lawyers and eight merchants; three of whom could determine summarily these causes, subject to appeal solely to the Court of Chancery." Although the admiralty judge was one of this mixed commission of fourteen persons, and, on appeal, the decision of any three of them could be revised, in Chancery, yet no such power to review, revise, or reverse was ever delegated to the Lords Commissioners in Admiralty, to the Delegates, or Judicial Committee of the Privy Council.

Under these circumstances, may it not present a grave question for any one, whether policies of insurance were even by implication, embraced within the admiralty and maritime jurisdiction of England? And, if not, certainly such jurisdiction could not be deemed to have been conferred on the United States district courts, by the Constitution of the United States or the General Judiciary Act of 1789, unless by a violent and forced interpretation of the phraseology, "admiralty and maritime jurisdiction."