1. An entry on the record of an admiralty case that, on the
return of a process of attachment, Mr. B. "appears for the
respondent, and has a week to perfect an appearance and to answer"
is an appearance, the entry being followed by the execution by the
respondent or his agents of different bonds, reciting "that an
appearance in the case had been entered."
2. A district court of the United States, when acting as a court
of admiralty, can obtain jurisdiction to proceed in
against an inhabitant of the United States not
residing within the district (within which terms a corporation
incorporated by a state not within the district is meant to be
included), by attachment of the goods or property of such
inhabitant found within the district.
Atkins filed a libel in the District Court for the Eastern
District of New York in a cause civil and maritime against the
Fibre Disintegrating Company, styling it "a corporation duly
incorporated," but not saying by what state incorporated nor
anything else about it, the company having in fact been
incorporated by the State of New Jersey, a state not within the
limits of any Judicial District of New York, but on the contrary
forming in itself the Judicial "District of New Jersey."
The libel was on a charter party of the ship Hamilton,
executed in New York, and was to recover:
1. Freight due the ship for bringing a cargo from Kingston and
Port Morant in the Island of Jamaica.
2. For demurrage for the ship while getting a cargo.
3. For damage to the ship by getting on a reef at Port
Page 85 U. S. 273
It alleged that the company had chartered the ship to proceed to
Kingston, a deep-water and safe port for a full cargo, freight to
be paid at a price named; that twenty running lay days were allowed
for loading, and, for any delay beyond that, $100 per day
demurrage; that if a full cargo should not be provided at Kingston,
then the company had the privilege of sending the vessel to a
second safe port; that the company, in violation of the charter,
had sent the ship to Port Morant, an unsafe port, whereby the
vessel was delayed and, by the unsafeness of the port, got aground
and was damaged.
It prayed for process and a citation to appear, and if the
defendants should not be found, that an attachment might issue
against their property in the district.
Process according to the prayer issued accordingly, June 14,
1866, returnable June 20th, 1866.
The process was returned as follows:
"Respondents not found in my district, and I attached all the
property of respondents found in their factory in Red Hook Point,
in the City of Brooklyn."
"A. F. CAMPBELL, United States Marshal"
"June 20, 1866"
The record, under date of this same 20th of June, noted a return
of the service, with an entry thus (Mr. Beebe being a proctor of
"Mr. Beebe appears for the respondent, and has a week to
and to answer."
And on the same day with Mr. Beebe's action, the said 20th, a
motion was made on the part of the defendants, with stay of
proceedings, to show cause why the property attached should not be
discharged, the ground of this motion being that the business of
the company was carried on at Brooklyn, in the Eastern District of
New York, and that its officers were all at its factory there
during business hours, and that service of process could have been
made on them, but that such service had purposely not been made in
order to attach property. The hearing of the motion being
Page 85 U. S. 274
the defendants, by consent, were allowed to give stipulations
for value and to take the property attached, without prejudice to
the motion already made, and with an agreement that if the motion
to discharge the property should be granted, the stipulations
should be cancelled.
The stipulation for costs, acknowledged July 6, 1866, contained
a recital that "an appearance had been filed in the cause by the
said Disintegrating Company." The stipulation for value, which was
signed by the president of the company and two of the directors and
which was acknowledged July 7, 1866, contained a recital that
an appearance had been duly filed by said Fibre Disintegrating
and provided for notice of the final decree to Beebe,
Dean, and Donohue, proctors for the claimants of the property
attached, and the defendant,
and the papers were signed and
endorsed "Beebe, Dean, and Donohue, proctors."
The motion to discharge the property attached was never decided.
But a motion was made in March, 1867, to set aside and vacate the
clause of attachment contained in the motion and all proceedings
under it, this
motion being based upon this clause in the
eleventh section of the Judiciary Act:
"And a CIVIL SUIT shall be brought before either of said courts
against an inhabitant of the United States by any original process
in any other district than that whereof he is an inhabitant or in
which he shall be found at the time of serving the writ."
The ground of the application was that the respondents at the
time of the issuing and serving the process were nonresidents of
the Eastern District of New York, and had not been found therein at
the time of serving the writ.
The motion was opposed by the libellants, who argued that a
cause in the admiralty was not a "civil suit" within the meaning of
the clause relied on, and therefore that the clause did not apply,
while for the rest, that the proceeding by attachment against an
absconding, absent, or nonresident debtor was one, they argued,
inherent in courts of
Page 85 U. S. 275
admiralty and practiced from the earliest times. In support of
this view, reliance was had on Clerke's Praxis,
an old but
authoritative book of the time of Elizabeth, and on Browne's
Civil Law and Law of Admiralty.
translated, read thus:
"SECTION 24. If the defendant so conceals himself, or perhaps he
is absent from the Kingdom, that he cannot be arrested, then if he
shall have any goods, wares, or ship, or any part of a ship, or
boat upon the sea or within the flow and reflow of the sea, then a
warrant is to be taken out to this effect to arrest such goods or
such a ship &c., belonging to N. -- that is, to the defendant
debtor -- in whosesoever hands they may be, and to cite, with such
goods, N., the debtor, specially, and all others generally who have
or pretend to have any right or interest in the raid goods, to
appear on such a day to answer the plaintiff in a certain civil and
Browne's language [Footnote
] was thus:
"Let us lastly suppose that a person against whom a warrant has
issued cannot be found, or that he lives in a foreign country; here
the ancient proceedings of the admiralty court provided an easy and
salutary remedy. . . . They were analogous to the proceedings by
foreign attachment under the charters of the Cities of London and
Dublin. The goods of the party were attached to compel his
Opposed to this, it was said that the present cause was palpably
a "civil suit;" that the clause of the eleventh section relied on,
therefore, did apply. But that if this were otherwise, and if there
were no statutory prohibition, that the attachment ought to be set
aside; for that while the ancient usage of the admiralty allowed
the process of attachment if the defendant concealed himself, or
had absconded, or were an alien nonresident -- to which cases the
language of Clerke and Browne, as of other writers, applied --
neither such ancient practice nor any proper practice allowed it,
nor would the language of either of the authors cited justify it in
application to a case where the defendant was not alien
Page 85 U. S. 276
to the United States (in whose courts the case was), had not
concealed himself, and had not absconded, but contrariwise was a
person (an artificial person), incorporated by one of the United
States, owing and paying allegiance to the government, and neither
absent nor concealed nor absconding, but contrariwise again, at its
own home in an adjoining judicial district of the United States,
the District of New Jersey, in the Third Federal Circuit, where by
crossing the Hudson it could be sued just as well as, and much more
properly and effectively than, where it had been sued, to-wit, in
the Eastern District of New York, in the Second.
The district court denied the motion to vacate and set aside the
attachment. [Footnote 2
The defendants then put in their answer averring performance of
the charter party and the acceptancy of the cargo; that the second
port had been voluntarily accepted as a safe port by the master,
and also setting up that they were a foreign corporation,
incorporated under the laws of New Jersey, and not residents of the
Eastern District of New York, and that the libel did not allege
that they resided or were in the district.
The district court, after full argument, considering that the
company, so far as the proceeding against it individually was
concerned, had by the appearance and action of its proctor come
into court, and considering further that the merits were with the
libellants, decreed against it individually for $13,302, an amount
found due by a master; and considering also that the proceeding was
not "a civil suit" within the meaning of the clause in the eleventh
section and that, independently of the prohibition there contained,
the ancient usage of the admiralty did authorize the attachment as
an inherent power of the court, decreed against the property
seized; or to speak, in this particular case, more literally,
decreed that the stipulators should cause the stipulations which
they gave on the discharge of the property from seizure, to be
Page 85 U. S. 277
On appeal, the circuit court reversed the decree.
As to the matter of appearance -- remarking that it was
according to the ancient practice in admiralty in cases of
attachment not to recognize anything as an appearance but putting
in of bail -- it thought that what had been done by Mr. Beebe was
not to be regarded as a general appearance; that, on the contrary,
he had been allowed time "to perfect an appearance," and had
immediately moved to set aside the proceeding as unauthorized; that
this motion being denied and the respondent compelled to answer,
the answer was made by setting up again an invalidity; and that the
libellants had stipulated expressly that the subsequent bond for
value should not operate as a waiver of the respondent's
Upon the other and greater question -- whether a court of
admiralty in one judicial district of the United States can obtain
jurisdiction against an inhabitant of another district by an
attachment of his goods -- the circuit court also disagreed with
the district court, and accordingly the whole decree was reversed.
From that reversal the case was now on appeal here, there being
in this Court less dispute perhaps about the merits and about
whether there was a sufficient "appearance" to authorize a decree
against the corporation than whether the
proceeding was a "civil suit" within the meaning of the clause
already quoted of the eleventh section of the Judiciary Act, and if
it was not, whether the inherent power of the court of admiralty
authorized an attachment in a case like that here issued, and where
the defendant was not an alien, nor absent from his own home, nor
absconding, nor anywhere concealed.
What answer should be given to the first part of this chief
question, it was admitted on both sides, was a matter which
received light from certain provisions in the Constitution and also
from enactments of Congress other than the exact clause of the
eleventh section, on which the question turned.
Page 85 U. S. 278
Some of these may be recited.
The Constitution, as sent forth by the Convention of 1787, and
as adopted, in the same article [Footnote 4
] which ordains:
"That the judicial power of the United States shall extend to
all cases of admiralty and maritime jurisdiction:"
"The trial of all crimes, except in cases of impeachment, shall
be held in the state where the said crime shall have been
And as amended in 1789, by the first Congress: [Footnote 5
"In criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial by an impartial jury of the state and
district wherein the crime shall have been committed."
Passing now to legislative enactments. The "Act to establish the
Judicial Courts of the United States," commonly called the
Judiciary Act, and passed September 29, 1789, [Footnote 6
"SECTION 9. That the district courts shall have, exclusively of
the courts of the several states, cognizance of all crimes and
offenses that shall be cognizable under the authority of the United
States, committed within their respective districts, . . . where no
other punishment than whipping &c., is to be inflicted:"
"And shall also have exclusive original cognizance of all
civil causes of admiralty and maritime jurisdiction,
including all seizures under laws of impost . . . where the
seizures are made on waters which are navigable from the sea by
vessels of ten or more tons burden, within their respective
districts, as well as upon the high seas. . . ."
"And shall also have exclusive original cognizance of all
seizures on land or other waters than as aforesaid made, and of all
for penalties incurred under the laws of the United
"And shall also have cognizance concurrent with the courts of
the several states or the circuit courts, as the case may be, of
where an alien sues for a tort only in
violation of the law of nations or a treaty of the United States:
Page 85 U. S. 279
"And shall also have cognizance, concurrent as last mentioned,
of all suits at common law
where the United States sue and
the matter in dispute amounts, exclusive of costs, to the sum or
value of $100:"
"And shall also have jurisdiction, exclusively of the courts of
the several states, of all suits against consuls or
except for offenses above the description
"And the trial of issues in fact, in the district courts, in all
causes except civil causes of admiralty and maritime
shall be by jury."
Next in order of matter comes the eleventh section, in which is
found the clause upon which the case turned:
courts shall have original cognizance,
concurrent with the courts of the several states, of all suits
of a civil nature, at common law or in equity,
when the matter
in dispute exceeds, exclusive of costs, the sum or value of $500
and the United States are plaintiffs or petitioners, or an alien is
a party, or the suit is between a citizen of the state where the
suit is brought and a citizen of another state."
"And shall have exclusive cognizance of all crimes and offenses
cognizable under the authority of the United States, except where
this act otherwise provides, or the laws of the United States shall
otherwise direct, and concurrent jurisdiction with the district
courts of the crimes and offenses cognizable therein; but no
person shall be arrested in one district for trial in another, in
any civil action, before a circuit or district court. And no civil
suit shall be brought before either of said courts against an
inhabitant of the United States by any original process in any
other district than that whereof he is an inhabitant or in which he
shall be found at the time of serving the writ.
"SECTION 21. From final decrees in a district court, in
causes of admiralty and maritime jurisdiction
matter in dispute exceeds the sum or value of $300 . . . an appeal
shall be allowed to the next circuit court to be held in such
"SECTION 22. Final decrees and judgments in civil
in a district court, where the matter in dispute
exceeds the sum or value of $50, . . . may be reexamined and
reversed or affirmed
Page 85 U. S. 280
in a circuit court holden in the same district upon a writ
So far as to the Judiciary Act.
"An act to regulate processes in the courts of the United
States" -- a temporary Process Act -- passed September 29, 1789,
] five days after
the passage of the Judiciary Act, enacted:
"That until further provision shall be made, and except where by
this act or other statutes of the United States
otherwise provided, the forms of writs and executions . . . and
mode of process, and rates of fees, . . . in the circuit and
district courts, in suits at common law,
shall be the same
in each state respectively as are now used . . . in the Supreme
Court of the same."
"And the forms and modes of proceeding in causes of equity
and of admiralty and maritime jurisdiction shall be according to
the course of the civil law.
And "An act for regulating processes," &c. -- the Permanent
Process Act -- of May 8th, 1792, [Footnote 8
"SECTION 2. That the forms of writs, executions, and other
process, . . . and the forms and modes of proceeding in suits:"
"In those of the common law shall be the same as are now used in
the said courts respectively in pursuance of the act entitled 'An
act to regulate processes in the courts of the United States' [the
last above-quoted act]:"
"In those of equity and in those of admiralty and maritime
jurisdiction, according to the principles, rules, and usages which
belong to courts of equity and to courts of admiralty respectively,
as contradistinguished from courts of common law, except so far as
may have been provided for by the act to establish the judicial
courts of the United States, subject, however, to such alterations
and additions as the said courts respectively shall, in their
discretion, deem expedient or to such regulations as the Supreme
Court of the United States shall think proper from time to time by
rule to prescribe to any circuit or district court concerning the
By an Act of 23d August, 1842, [Footnote 9
] in the nature of a process act, it is
Page 85 U. S. 281
"That the Supreme Court of the United States shall have full
power . . . to prescribe, regulate, and alter the forms of writs,
and other process to be used and issued in the district and circuit
courts, . . . and the forms and modes of framing and filing libels,
bills, and answers, and other proceedings, and pleadings in suits
at common law, or in admiralty, or in equity, and generally to
regulate the whole practice of the said courts.
Under the power given by these acts, the said court, by its
second Rule in Admiralty, provided that:
"In suits in personam,
the mesne process may be by a
simple warrant of arrest of the person of the defendant in the
nature of a capias; or 'by a warrant of arrest of the person of
the defendant, with a clause therein that if the cannot be found to
attach his goods and chattels,'
&c., or by a simple
monition in the nature of a summons to appear and answer. "
Page 85 U. S. 296
MR. JUSTICE SWAYNE recapitulated the facts of the case and
delivered the opinion of the Court.
The libel is founded upon a charter party and seeks to recover
freight earned by the ship Elizabeth Hamilton
a cargo of bamboo from Kingston and Port Morant, in the Island of
Jamaica; for demurrage while the ship
Page 85 U. S. 297
was obtaining the cargo, and for damages to the ship by getting
on a reef when leaving Port Morant.
The libel alleges that the respondents are a corporation and
have property in the district, and prays for process against them
and, if they were not found, that a foreign attachment issue
against their property in the district, and for a decree for the
amount claimed, with interest and costs. The libel was filed on the
13th of June, 1866. On the day following, a citation was issued
with a foreign attachment clause. On the 20th of the same month,
the marshal returned that the respondents were not found in his
district and that he had attached all the property found in their
factory at Red Hook Point, in the City of Brooklyn. In a journal
entry of the same date, it is stated: "Mr. Beebe appears for
respondent, and has a week to perfect appearance and to answer." On
the 19th of July following, the respondents executed a stipulation
for costs. It recited that "an appearance has been filed in said
cause by said disintegrating company." On the same day, the
proctors for the libellants consented that the property attached
should be discharged from custody upon the respondents' giving a
stipulation for its value in the sum of $25,000, and they agreed
that in case the judge should grant the motion to discharge the
property, the stipulation should be cancelled, and that "the
stipulation for value is given without prejudice to such motion."
The stipulation for value was thereupon filed. That also recited
"that an appearance has been filed by said company." On the 3d of
May, 1867, the respondents filed their answer. Among other things,
it averred that they were a foreign corporation, created by the
laws of New Jersey and were not residents of the Eastern District
of New York, and that it was not alleged in the libel that they
were either found in the district or resided in the district, and
they craved the same benefit and advantage as if they had formally
excepted to the libel. It does not appear that the motion to
discharge the attachment was ever decided. But by an entry of the
22d of March, 1867, it appears that a motion had been made to
vacate the attachment
Page 85 U. S. 298
clause in the monition and all the proceedings under it upon the
ground that under the circumstances, the eleventh section of the
Judiciary Act of 1789 denied jurisdiction to the court, and that
the motion was overruled. The cause was heard in the district court
upon the merits on the 16th of December, 1867. The court made an
interlocutory decree disallowing the claim for damages to the ship,
but referred the case to a commissioner to ascertain the amount
which the libellants were entitled to recover in respect of their
other claims. The commissioner made his report. No exception was
taken by either party. The court confirmed the report and decreed
accordingly. The libellants appealed from so much of the decree as
refused them damages for the injury sustained by the ship in
leaving Port Morant. The respondents appealed from the whole
decree. The circuit court reversed the entire decree, and the
libellants thereupon appealed to this Court. The case is thus
brought before us.
The statement of the case which we have given shows that the
defendants entered their appearance without reservation. If there
could be any doubt upon the subject, it is removed by their
repeated subsequent recognitions of the fact. This made their
position just what it would have been if they had been brought in
regularly by the service of process. In this aspect of the case,
all defects were cured and the jurisdiction of the court over their
persons became complete. [Footnote 10
] This warranted the decree in
for the amount adjudged to the libellants.
But the stipulation for value was entered into subject to the
motion to discharge the property attached, the stipulation to be
cancelled if the motion prevailed. Though this motion was not
decided, the subsequent motion, founded upon the eleventh section
of the Judiciary Act, took its place and had the same effect. The
latter motion was overruled, and the decree required the
stipulators to perform
Page 85 U. S. 299
their undertaking. The circuit court reversed the decree by
reason of the facts relied upon in support of the motion to vacate.
If the attachment clause was void for want of jurisdiction in the
district court to issue it, the seizure of the property was a
trespass, and the stipulation a nullity, irrespective of the
reservation which it contained. These considerations render it
necessary to examine the case both as to the merits and the
jurisdictional question thus presented.
In regard to the merits -- after a careful examination of the
record -- we have found no reason to dissent from the views of the
learned district judge by whom the case was heard. [Footnote 11
] However full might be our
discussion, we should announce the same conclusions. They are
clearly expressed and ably vindicated in his opinion. To go again
through the process by which they were reached would be a matter
rather of form than substance.
The question of jurisdiction is of a different character, and
requires more consideration.
The Constitution [Footnote
] declares that the judicial power of the United States shall
extend to "all cases of admiralty and maritime jurisdiction."
The Act of Congress of the 24th of September, 1789, [Footnote 13
] known as the Judiciary
Act, provides that
"The district courts . . . shall have also original cognizance
of all civil causes of admiralty and maritime
including all seizures under all laws of impost,
navigation, or trade of the United States, where the seizures are
made on waters which are navigable from the sea by vessels of ten
or more tons burden, within their respective districts as well as
upon the high seas."
The Short Practice Act of September 29, 1789, [Footnote 14
] required that
"The forms and modes of proceedings in causes
Page 85 U. S. 300
of equity and of admiralty and maritime jurisdiction shall be
according to the course of the civil law."
By the second section of the Practice Act of 1792, [Footnote 15
] it was declared
"That the forms of writs, executions, and other process shall
be, in suits in equity and in those of admiralty and maritime
according to the principles, rules, and usages
which belong to courts of equity and to courts of admiralty
respectively, as contradistinguished from courts of common law,
except so far as may have been provided for by the act to establish
the judicial courts of the United States, subject, however, to such
alterations and additions as the said courts respectively shall, in
their discretion, deem expedient, or to such regulations as the
Supreme Court of the United States shall think proper, from time to
time, by rule to prescribe to any circuit or district court
concerning the same."
The Act of the 23d of August, 1842, [Footnote 16
] authorized the Supreme Court "generally
to regulate the whole practice" of the circuit and district courts
in all their proceedings.
This controversy turns upon the eleventh section of the
Judiciary Act of 1789. The importance of the section in this case
induces us to set it out in full:
"The circuit court shall have original cognizance, concurrent
with the courts of the several states, of all suits of a civil
nature, at common law or in equity,
when the matter in dispute
exceeds, exclusive of costs, the sum or value of $500, and the
United States are plaintiffs or petitioners or an alien is a party,
or the suit is between a citizen of the state where the suit is
brought and a citizen of another state, and shall have exclusive
cognizance of all crimes and offenses cognizable under the
authority of the United States, except where this act otherwise
provides, or the laws of the United States shall otherwise direct,
and concurrent jurisdiction with the district courts of the crimes
and offenses cognizable therein; but no person shall be arrested in
one district for trial in another, in any civil action,
before a circuit or district court. And no civil suit shall be
Page 85 U. S. 301
either of said courts, against an inhabitant of the United
States, by any original process in any other district than that
whereof he is an inhabitant, or in which he shall be found at the
time of serving the writ.
"Nor shall any district or circuit court have cognizance of any
suit to recover the contents of any promissory note or other chose
in action in favor of an assignee unless a suit might have been
prosecuted in such court to recover the said contents if no
assignment had been made, except in cases of foreign bills of
exchange. And the circuit courts shall also have appellate
jurisdiction from the district courts, under the regulations and
restrictions hereinafter provided."
The prohibition to bring a "civil suit" against an inhabitant of
the United States in a district other than that whereof he is an
inhabitant or in which he shall be found is the hinge of the
controversy between these parties. The appellees maintain that a
cause of admiralty jurisdiction is a "civil suit" within the
meaning of this prohibition. The appellants maintain the contrary.
Our views coincide with those of the appellants, and we will
proceed to state succinctly the considerations which have brought
us to this conclusion.
It may be admitted that an admiralty case is a civil
in the general sense of that phrase. But that is not the
question before us. It is whether that is the meaning of the phrase
as used in this section. The intention of the lawmaker constitutes
the law. [Footnote 17
thing may be within the letter of a statute and not within its
meaning, or within its meaning though not within its letter.
] In cases
admitting of doubt, the intention of the lawmaker is to be sought
in the entire context of the section -- statutes or series of
statutes in pari materia.
Page 85 U. S. 302
The general language found in one place may be restricted in its
effect to the particular expressions employed in another if such,
upon a careful examination of the subject, appears to have been the
intent of the enactment. [Footnote 20
The first paragraph of the eleventh section defines the
jurisdiction of the circuit court as extending to "all suits of a
civil nature, at common law or in equity, where," &c. The
criminal jurisdiction of the circuit court is next defined. Then
follows the provision that no one shall be arrested in one district
for trial in another "in a civil action" before a circuit or
district court, and next the prohibition here in question.
Construing this section down to the second prohibition,
inclusive, by its own light alone, we cannot doubt that by the
phrase "civil suit," mentioned in this prohibition, is meant a suit
within the category of "all suits of a civil nature at common law
or in equity," with which the section deals at the outset. This
view derives further support from the ninth, twenty-first, and
twenty-second sections of the act. The ninth section gives to the
district court its admiralty jurisdiction, its common law
jurisdiction, and its criminal jurisdiction. With reference to that
first named, the language is "of all civil causes of admiralty
and maritime jurisdiction.
" As to the second, it is "of
all suits at common law,"
&c. The twenty-first section
allows appeals from the District to the circuit court "in
causes of admiralty and maritime jurisdiction
where the matter
in dispute exceeds the sum of three hundred dollars." The
twenty-second section provides "that final decrees and judgments
in civil actions
" where the matter in dispute exceeds
fifty dollars, may be reviewed in the circuit court upon error. The
distinction is thus made between admiralty and other civil actions,
and the terms "causes of admiralty and maritime
are applied to the former, and the phrases
and "suits at common law"
Page 85 U. S. 303
We think the conclusion it inevitable that the terms civil
in the eleventh, and civil actions,
twenty-second section, were intended to mean the same thing. The
meaning of the phrase employed in the latter admits of no doubt.
The language there is "civil actions," and it is used to
distinguish them from "causes of admiralty and maritime
jurisdiction," provided for in the preceding section. The
twenty-first and twenty-second sections are in pari
with the eleventh, and throw back a strong light upon
the question arising under the latter. We think it dispels all
darkness and doubt if any could otherwise exist upon the
Our attention has been called to other instances in the laws of
Congress where the same phrases are used for the same purposes of
distinction between admiralty and other causes. It is unnecessary
to refer to them in detail. The argument could not be strengthened
by further support drawn from that quarter.
The use of the process of attachment in civil causes of maritime
jurisdiction by courts of admiralty, as in the case before us, has
prevailed during a period extending as far back as the authentic
history of those tribunals can be traced. "Its origin is to be
found in the remotest history of the civil as well as of the common
law." [Footnote 21
rules by which it was regulated in the English admiralty are found
in Clerke's Praxis,
a work still of authority, published
in the time of Elizabeth.
Browne, in his Civil and Admiralty Law, [Footnote 22
"Let us, lastly, suppose that a person against whom a warrant
has issued cannot be found, or that he lives in a foreign country;
here the ancient proceedings of the admiralty court provided an
easy and salutary remedy, though according to Huberus, not
authorized by the example of the civil law; they were analogous to
the proceedings by foreign attachment under the charters of the
Cities of London and Dublin. The goods of the party were attached
to compel his appearance. . . .
Page 85 U. S. 304
This process of attachment went not only against those in the
actual possession of himself, his factors or agents, but also
against those in the hands of his debtors, since the maxim taken
from the Justinian Code was debitor creditoris est debitor
As in the practice of our courts of admiralty, the attachment of
the goods or credits gave jurisdiction, and the cause proceeded to
decree whether the defendant appeared or not.
The Constitution, in the grant of the admiralty jurisdiction,
refers to it as it existed in this and other maritime countries at
the time of the adoption of that instrument. It was then greatly
larger here than in England. The hostility of the common law courts
there had wrought the reduction. [Footnote 23
While the mode of proceeding in the admiralty courts of the
United States was required by the Practice Act of 1789 to be
according to the course of the civil law, the process of attachment
to compel the appearance of an absent defendant had the sanction of
that system of jurisprudence. [Footnote 24
] It has the sanction of the Act of 1792,
because it is according to the principles, rules, and usages which
belong to courts of admiralty. It has also the sanction of the Act
of 1842. Under that act, this Court, at the December Term, 1844,
prescribed "rules of practice for the courts of the United States
in admiralty and maritime jurisdiction on the instance side." The
second of those rules is as follows:
"In suits in personam,
the mesne process may be by a
simple warrant of arrest of the person of the defendant in the
nature of a capias, or by a warrant of arrest of the person of the
defendant, with a clause therein that if he cannot be found to
attach his goods and chattels to the amount sued for, or if such
property cannot be found, to attach his credits and effects to the
amount sued for in the hands of the garnishees
Page 85 U. S. 305
named therein, or by a simple monition in the nature of a
summons, to appear and answer to the suit, as the libellant shall
in his information pray for or elect."
The fourth and thirty-seventh rules relate to the same subject.
The process in question in the case before us was issued according
to the formula prescribed in the second rule, and that rule did not
transcend the authority in pursuance of which it was framed.
This subject came under the consideration of the District Court
of South Carolina, sitting in admiralty, in 1802. [Footnote 25
] The court held, without
qualification, that it had the power to issue the process of
attachment to compel the appearance of an absent defendant, and
In the case of The Invincible,
] decided in 1814, Mr. Justice Story
"The admiralty may therefore arrest the person or the property,
or by foreign attachment the choses in action, of the offending
party, to answer ex delicto.
The question was elaborately considered by this Court in
Manro v. Almeida.
] It was unanimously held that the power
existed as an established mode of admiralty procedure and an
element of admiralty jurisdiction. This case was decided in
In 1841, in Clarke v. New Jersey Steam Navigation
Mr. Justice Story said: "Ever since the elaborate examination of
this whole subject, in the case of Manro v. Almeida,
question has been deemed entirely at rest."
In the New Jersey Steam Navigation Company v. Merchants'
determined by this Court in 1848, the defendant was a corporation
foreign to the locality of the suit. Jurisdiction was obtained, as
in the case before us, by attachment. Another question of
jurisdiction was argued with exhaustive learning and ability, but
the point here under consideration was not adverted to either by
the Court or the counsel.
Neither in the rules of this Court nor in either of the
Page 85 U. S. 306
referred to is there any reference, express or implied, to the
eleventh section of the Act of 1789. It does not seem to have
occurred to anyone that the limitations in that section could have
any application to proceedings in admiralty.
These facts are full of significance. They are hardly less
effectual than an express authoritative negation upon the subject.
The case of Ex Parte Graham
] is relied upon by the counsel for the
appellee. It was decided by Mr. Justice Washington in 1818. Graham
was arrested in Pennsylvania under process for contempt, issued in
a prize case pending in the District Court of Rhode Island. Mr.
Justice Washington ordered his discharge upon two grounds: (1) that
process would not run in such a case from Rhode Island into
Pennsylvania; (2) that the prohibitions in the eleventh section of
the Act of 1789, as to the locality of arrests and suits, applied
as well to suits in admiralty as to other civil actions. It is a
sufficient answer to the second proposition that it was clearly
overruled by this Court in Manro v. Almeida.
Washington sat in that case, and must then have changed his
opinion. His silent concurrence admits of no other
The earliest case exactly in point, maintaining the proposition
contended for by the appellee, to which our attention has been
called, is Wilson v. Pierce.
] It was decided by the learned district
judge of California in 1852. He adopted the view of Judge
Washington, and ruled accordingly. This case was followed by two
others, one of them being the case before us. [Footnote 33
] The other one arose in the District
of Connecticut, and is said not to have been reported. The cases
upon the other side are numerous. We shall refer to but two of
them: Cushing v. Laird
] and Smith v. Milne.
] The opinion of the court in
each of these cases is learned
Page 85 U. S. 307
and elaborate. Two eminent American law writers have taken the
same view of the subject. [Footnote 36
] They hold that the prohibition in question
does not apply to suits in admiralty.
Decree of the circuit court reversed and the case remanded
with directions to affirm the decree of the district
At the same time was argued the case of New England Mutual
Insurance Company v. Detroit & Cleveland Steam Navigation
a case from the Circuit Court for the Northern
District of Ohio and involving the question arising in the
preceding case under the eleventh section of the Judiciary Act of
1789. It was decided in favor of the appellants, the court
referring to the opinion above printed as controlling it.
Dissenting, JUSTICES MILLER and STRONG. The briefs filed in this
last case, by Messrs. Willey, Cary, and Terrill, for the
appellants, and by Mr. G. B. Hibbard, contra,
leave of the Court, filed also in the preceding case.
Volume 2, page 434; and see
pages 333 and 433.
1 Benedict 118.
Of course, in the view taken in the circuit court, no discussion
about merits was necessary.
Article III, section 2.
1 Stat. at Large 73.
1 Stat. at Large 93.
4 Cranch 421; Knox v.
Atkins v. Fibre Disintegrating Co.,
2 Benedict 381.
Article 3, § 2.
1 Stat. at Large 76.
1 Stat. at Large 276.
United States v.
3 How. 563.
Slater v. Cave,
3 Ohio St. 85; 7 Bacon's Abridgment,
title Statutes, 1, 2, 3, 5.
11 Wheat. 389; Dubois v. McLean,
McLean 489; 1 Cooley's Blackstone 59; Doe v. Brandling,
Barnewall & Cresswell 643; Stowel v. Zouch,
14 Pet. 198, 39 U. S. 199
Miller v. Salomons,
7 Exchequer 546; Same Case
error, 8 id.
778; Waugh v. Middleton, ib.,
10 Wheat. 473.
Vol. 2, page 434.
Manro v. Almeida, supra; 46 U. S.
5 How. 455; New Jersey Steam
Navigation Company v. Merchants' Bank,
6 How. 389;
1 Black 527; The
12 How. 454; Insurance
Company v. Dunham,
11 Wall. 24; Story on the
Constitution § 1666.
Manro v. Almeida, supra.
Bouysson & Holmes v. Miller & Ryley,
2 Gallison 41.
1 Story 537.
12 Wheat. 206.
3 Washington's Cir.Ct. 456.
15 Law Reporter 137.
7 Blatchford 555.
3 American Law Times Reports 50.
Abbot's Admiralty Reports 373.
2 Parsons's Maritime Law 686, note; 2 Parsons' Shipping and
Admiralty 390; Benedict's Admiralty § 425.