§ 652. Origin and history.-Admiralty law and procedure, as they formerly prevailed in England, were under the superintendency of the courts of common law, which had power to keep the courts of admiralty within their jurisdiction, and to restrain and prohibit any excess of power. The proceedings of the admiralty courts were according to the method of the civil law, and were formerly held before the lord high admiral of England and such tribunal was not a court of record. By parliamentary enactments the jurisdiction of these courts has been enlarged and their dignity elevated. They had civil and criminal jurisdiction. In them persons were tried for crimes committed on the high seas or on the coasts of England or its colonies, but as they proceeded without a jury, and the accused was liable to be tried and condemned upon the opinion of a single judge, parliament enacted, in the reign of Henry VIII, that these offenses should be tried by the admiralty court with the aid of three or four of the common-law judges. An indictment was necessary, and the right to trial by jury according to the law of the land was secured to the prisoner.

The system as it prevailed in our colonies gave the vice admirals a much larger jurisdiction than the courts of admiralty in the mother country exercised at that time.

§ 653. Admiralty jurisdiction.-Article 3, section 3, of

the Constitution of the United States, confers admiralty jurisdiction upon the courts of the United States. These courts have declared as the settled doctrine under the constitutional grant of jurisdiction that it means the jurisdiction which had been and was exercised in admiralty in this country prior to and at the time the constitution was adopted, and not admiralty jurisdiction as it was understood in England or Continental Europe. This interpretation, first announced by Judge Story on the circuit, was combatted by other federal judges, but it is now settled law that the jurisdiction embraces the water-borne commerce of the United States conducted on its internal navigable waters as well as on the high seas, and has grown to include all maritime services and contracts, and all injuries when inflicted upon such waters. For a time it was attempted to restrict the jurisdiction to such navigable waters only as where affected by the ebb and flow of the tide, but the Supreme Court has established the doctrine that the constitutional grant extends the jurisdiction not only to such waters, but over all the navigable waters, canals and rivers of the nation and wherever ships float and navigation successfully aids commerce, whether internal or external.

Admiralty jurisdiction as to torts is confined to wrongs committed on the water. It extends to matters happening during voyages between two ports in the same state and to matters happening in foreign waters. Jurisdiction does not depend on citizenship of the parties, and where foreigners appeal to our admiralty courts, their controversies will be adjudicated. All ships are prima facie subject to admiralty jurisdiction, but there are exceptions as to foreign vessels of war belonging to friendly nations, and vessels engaged in the service of a city government. Generally stated, the subjects of maritime jurisdiction are maritime contracts, touching rights and duties appertain

ing to commerce and navigation, and also all torts or injuries of a civil nature committed on navigable waters. As to torts the test of jurisdiction is locality, as to contracts it depends on the subject-matter. Contracts for building vessels and for labor and materials in their construction are not maritime contracts. As to torts, they must be torts for which the vessel is liable, and an assault by one passenger on another is not a subject of admiralty jurisdiction. It is otherwise where the wrong is committed by the officers or crew of the vessel. All prize cases and controversies about the distribution of prizemoney are for the admiralty courts. The jurisdiction of the United States courts in admiralty cases is exclusive, and it is lodged in the district courts. If the district court is improperly proceeding with a cause under claim of admiralty jurisdiction, the Supreme Court may issue its writ of prohibition to restrain it from going further.

§ 654. Admiralty procedure. The forms of procedure in admiralty are prescribed by rules formulated by the Supreme Court of the United States. The pleadings are simple and the rules as to allowing amendments are very liberal. Whenever a vessel or cargo is seized it is common practice to release it if the owner, who is called the claimant, makes a stipulation with security, that he will pay the demand of the plaintiff or libelant, as he is called, if there is an adjudication in his favor. The libel, which is the first pleading filed, must show a case for admiralty jurisdiction, and if it is filed for the benefit of all who are interested in like claims against the vessel it must so state. One peculiarity about the practice is that recoupment is allowed in cases of tort and contract, even when it goes to the extent of compelling contributions among joint tort-feasors. In case of collision the damages may be apportioned according to the degree of

negligence where both vessels are to blame. In taking evidence, the rules are very lax and this results from the nature of the case, the witnesses being seafaring men, and their places of residence and movements being often sudden and uncertain. Unless the statute expressly requires it, there is no jury trial. Where there is a variance between the evidence and pleadings, it will not be fatal unless it is so great as to mislead the court. The decision is against the vessel and all persons over whom the court obtained jurisdiction. Such decrees are good against all the world, so far as the vessel or cargo is concerned, and can not be questioned even in the courts of a country whose vessel has been seized and condemned in a foreign port by a foreign tribunal.

§ 655. Scope of chapter.-We will now consider the order in which civil actions are commenced and prosecuted to final judgment. Owing to the diversity of legislation in the code states and the practice that has grown up in these states under the rulings of the courts, it is manifestly impossible in our limited space to give the order and rules of proceeding and practice in all the states, and we shall content ourselves with some general statements which will apply to most if not all of them.