Law,Equity and Admiralty
English common law was not uniformly accepted as "the law of the land" in the time of the framers. The fact is that when the Constitution was ratified there was a significant school of though which held that statute law popular in France, rather than common law, was the standard best used. And despite the claim that common law was used to protect the common man, it was widely held in the time of the framers than that common law was the province of the landowner and the lord of the manner. This belief added to the unpopularity of strict English common law in many circles. In fact the uniform acceptance of English common law is belayed by the expressed rejection of English common law as the basis of law in Connecticut, New York, New Jersey and the Kentucky Territory. In addition this expressed rejection of English Common Law, many states, Virginia and Delaware, in particular, said in their state Constitutions that all common law existing prior to 1776 in their state remained in force as long as they were not repugnant to "the rights and privileges as expressed" in their state constitutions. A few states, the best example being Massachusetts, had a long history of statue law which ran well counter to English Common law. The supremacy of statue law and Constitutions to common law is an unquestioned fact of law.
It is no wonder that the framers set the Constitution up as the "Supreme law of the Land"
In the Federalist Papers # 80,which addresses Article IV you will see that there is not only no mention of Blackstone , but that there is also no mention of the notion that the privileges and immunities in Article IV include freedom from taxes on personal income. Instead the operative section says:
"It may be esteemed the basis of the Union, that ``the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.'' And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, [my emphasis] it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. "
It is no wonder that in light of these historical facts the Supreme Court in Paul v. Virginia, 8 Wall. (75 U.S.) 168 , 180 (1869) that Article IV, Section 2 does not maintain and preserve any and all common law privileges, but rather: "It was undoubtedly the object of the clause [section 2] in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States: it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition of and enjoyment of property, and in the pursuit of happiness; and it secure to them in other State the equal protection of their laws.”
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The New Jersey Constitution of 1776 makes no declaration that common law is the law of the land.
The Pennsylvania, North Carolina, Virginia Constitutions of 1776 makes no such declarations. However they do preserve the right to jury trials.
The Delaware Constitution of 1776 establishes the supremacy of it constitution and statue to common law.
In Article 25. it says " The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention"
The Maryland Constitution of 1776 gives some credence to your claim in Section III.. ". . .the inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances,. . .
However the supremacy of statue law was affirmed;
". . . except such [common, or English law] as may have since expired, or have been or may be altered by facts of Convention, or this Declaration of Rights-subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.
The Vermont Constitutions of 1776 and 1786 fail to declare common law the law of the land. Both preserved the right to "a speedy public trial by an impartial jury of the country" and the 1786 document established courts every county.
The Massachusetts Constitution of 1780 makes no declaration of common law supremacy, but like the Virginia, North Carolina and Pennsylvania Constitutions of 1776 it preserves the right to jury trials.
The document goes on to clearly establish the authority of state government to make and enforce its body of laws:
"The General Court shall forever have full power and authority to erect and constitute judiciaries and courts of record, or other courts, to be held in the name of the Commonwealth, for the hearing, trying, and determining of all manner of crimes, offenses, pleas, processes, plaints, actions, matters, causes and things, whatsoever, arising or happening within the Commonwealth, or between or concerning persons inhabiting, or residing, or brought within the same; whether the same be criminal or civil, or whether the said crimes be capital or not capital, and whether the said pleas be real, personal, or mixed; and for the awarding and making out of execution thereupon: To which courts and judiciaries are hereby given and granted full power and authority, from time to time, to administer oaths or affirmations, for the better discovery of truth in any matter in controversy or depending before them.
And further, full power and authority are hereby given and granted to the said General Court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution,. . . "
The verbose and wondering New York Constitution of 1777 set up a system of courts including a Supreme Court, Admiralty Courts, county courts, probate courts, but did not establish common law courts or declare common law the law of the land.
The Georgia Constitution of 1777 preserved the right to jury trials and established a system of courts under its sovereign power. Common law was not declared the law of the land.
The South Carolina Constitution of 1778 established a court of admiralty, justices of the peace nominated by the state senate and house, and commissioned by the governor and commander-in-chief.
All other judicial officers were chosen by ballot of the senate and house of representatives, and, except the judges of the chancery court which were commissioned by the governor and commander-in-chief.
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Statutes have precedence over the common law.
Summary Equity jurisdiction has precedence over the common law.
Martial law is not military law.
Martial law is not admiralty law or maritime jurisdiction.
Admiralty is a good example of imperial law such as the Codes of Justinian whose doctrines provided medieval jurists with a sophisticated model for contracts, rules of procedure, family law, testaments, and a strong monarchical constitutional system. We find today, a vast number of parallels between the old Roman codes and modern codes.
Military law applies only to the military; but 'martial law' is made here to apply to all.
'Martial law' overrides the civil law, equity and the common law but each may exist under martial law at the discretion of the political power.
Military law does in no respect either supersede or interfere with the civil law of the realm, and that the former is in general subordinate to the latter ; while 'martial law' overrides them all.
Civil-law systems are based mainly on statutes (legislative acts). The majority of civil-law countries have assembled their statutes into one or more carefully organized collections called codes.
Most modern law codes can be traced back to the famous code that was commissioned by the Roman Emperor Justinian I in the A.D. 500's. Justinian's code updated and summarized the whole of Roman law. It was called the Corpus Juris Civilis, meaning Body of Civil Law. For this reason, legal systems that are based on the Roman system of statute and code law are known as civil-law systems. This use of the term civil law should not be confused with its use as an alternate term for private law. Civil-law systems include both private law and public law.
“Civil Law. ‘Civil Law,’ ‘Roman Law,’ and ‘Roman Civil Law’ are convertible phrases, meaning the same system of jurisprudence.” Black’s Law Dictionary (4th ed., 1957 & 1968), p. 312.
"The Constitution of the United States, while retaining other Roman principles of public law, departed Rome altogether in separating Church from State." Philip P. Wiener, ed., Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas (New York: Charles Scribner's Sons, 1973), vol. 3, p. 690.
“Examinations of witnesses upon Interrogatories,” he [John Adams for Hancock’s counsel] added, “are only by the Civil Law. Interrogatories are unknown to the common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them.” Adams’s argument in “Sewal v. Hancock,” in Wroth and Zobel, II, 194-207. Leonard W. Levy, Origins of the Fifth Amendment (Macmillan Publishing Company, 1986), p. 398. . .
Trial, following the civil-law tradition with which the maritime law is closely connected, was to the judge rather than to a jury, and procedure was rather non-technical and simple, though perhaps no more so than under any modern code. Grant Gilmore and Charles L. Black, Jr., The Law of Admiralty (N.Y.: Foundation Press, Inc., 1975), p. 35.
“Under the Roman Civil Law, which postulates the State as of divine origin, all-wise and all-powerful, it becomes the duty of the State to seek to achieve happiness for all its subjects, in such manner as it may dictate, and, to that end, its own wisdom must override all private judgment in prescribing regulations for the whole range of human endeavor. Under this latter policy, an extensive system of administrative law, with its particular and varied regulations, enforced by innumerable agents, boards and commissions, becomes necessary and inescapable.
“An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact, as well as the law, to review and re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law.” Joseph Story, A Familiar Exposition of the Constitution of the United States (1840), (Regnery Gateway, Inc., 1986), §379, p. 272.
Appeal borrowed from civil law.——The appeal as practiced in the English courts of equity, admiralty and ecclesiastical jurisdiction, is borrowed from the civil law. The effect of such appeals is to remove the whole proceeding, and generally, though not always, to open both the law and the facts for re-examination. Republic of Texas v. Thomas I. Smith, No. XVI Dallam’s Decisions 407 (1841).
“Jus emmins” is a term of the civil law used to designate the supreme power of the state over its members and whatever belongs to them. Gilmer v. Lime Point, 18 Cal. 229, 250 (S.Ct. 1861). jus eminens. (Civil law.) The supreme power of the state over its members and whatever belongs to them. Ballentine’s Law Dict., 2nd ed. 1948.
“The judicial power, under the proposed constitution, is founded on well-known principles of the civil law, by which the judge determines both law and fact, and appeals are allowed from the inferior tribunals to the superior, upon the whole question; so that facts as well as law, would be re-examined, and even facts brought forward in the court of appeals; and to use the words of a very eminent civilian—‘The cause is many times another thing before the court of appeals, than what it was at the time of the first sentence.’ “That this mode of proceeding is the one which must be adopted under this constitution, is evident from the following circumstances:
1st. That the trial by jury, which is the grand characteristic of the common law, is secured by the constitution only in criminal cases.
2d. That the appeal from both law and fact is expressly established, which is utterly inconsistent with the principles of the common law and trials by jury. The only mode in which an appeal from law and fact can be established, is by adopting the principles and practice of the civil law, unless the United States should be drawn into the absurdity of calling and swearing juries, merely for the purpose of contradicting their verdicts, which would render juries contemptible and worse than useless.
3d. That the courts to be established would decide on all cases of law and equity, which is a well-known characteristic of the civil law, and these courts would have cognizance not only of the laws of the United States, and of treaties, and of cases affecting ambassadors, but of all cases of admiralty and maritime jurisdiction, which last are matters belonging exclusively to the civil law, in every nation in Christendom.” The Pennsylvania Minority: The Address and Reasons of Dissent of the Minority of the Convention of the States of Pennsylvania to their Constituents, Cecelia M. Kenyon (ed.), The Antifederalist (Boston: Northeastern University Press, 1985), pp. 49-50.
Statutable, or Statutory. That which is introduced or governed by statute law, as opposed to the common law or equity. Thus, a court is said to have statutory jurisdiction when jurisdiction is given to it in certain matters by act of the legislature. Black’s Law Dict., 4th ed.
When there is a conflict between a statute and the common law, the statute takes precedence.[BURGESS COMMERCIAL LAW,1921, page 4}]
inherent jurisdiction (statutory jurisdiction). The inherent jurisdiction and procedure of the high court of chancery of England as adopted as and for the jurisdiction of the chancery court of a state of the Union when the chancery court of the state was created. This is what is called the “inherent jurisdiction” of the chancery court, and the jurisdiction which has been subsequently vested by the legislature is called the “statutory jurisdiction.” (Gibson, Suits in Ch. § 23) See Kelly v. Conner, 122 Tenn. 339, 25 L.R.A.(N.S.) 201, 207, 123 S.W. Rep. 622. Ballentine’s Law Dict. (1948).
The phrases "law of the land" and "due process of law" as used in constitutional provisions are identical in meaning. Randall v. Patch, 8 A.L.R. 65, 118 Me. 303, 108 A. 97; Ex parte Sizemore, 59 A.L.R. 430, 110 Tex. Crim. Rep. 232, 8 S.W.2nd 134.
The term "due process of law" as used in the Federal Constitution is synonymous with the expression "law of the land" as used in the Maryland Declaration of Rights. Anne Arundel County v. English, 150 A.L.R. 842, 182 Md. 514, 35 A.2d 135.
'"I conceive the law of the land to be the law that runs with the land. Not the general mass of changeful legislation, or judicial decisions "perplexed in the extreme"; but that higher law under which legislation itself obtains it's authority, and courts their jurisdiction."' J.G. McCullough, ed., Orations & Essays of Edward John Phelps, Diplomat and Statesman (Harper & Brothers Publishers, 1901), p.120.
Administrative due process. "Due process of law may be afforded administratively as well as judicially. Lawful administrative process is due process equally as much as lawful judicial process. Notice and hearing--'a day in court'--are matters of right in judicial proceedings; which from their character may not require such procedure, or from 'imperative necessity' cannot await it. Consequently, a valid exercise of the police power is said to be itself due process of law." Brannon, The Fourteenth Amendment, 167; Willis, Constitutional Law, 747 (1937). Nulter v. State Road Commission of West Virginia, 193 S.E. 549, 551 (1937)
Matters of summary equity jurisdiction have precedence over the common law; considering that the inability of the common law to provide other than monetary relief in contractual matters was among the earlier and most potent causes which gave rise to courts of equity; for these courts have, in England and this country, a very complete jurisdiction over this class of cases.
Equity had precedence over the common law because its degrees applied to the person of the defendant and disobedience to a decree was a contempt of court.
The remedies in equity were also more flexible. While a judgment of a law court was limited to money damages or recovery of property, courts of equity, for example, would grant an injunction (a decree forbidding the defendant to do some act, even a prohibition against pursuing a cause of action in a common-law court), specific performance (ordering the defendant to perform his contract), reformation (rewriting a contact or instrument to conform to the actual intent of the parties), or partition (to divide disputed property). It might be said that the common-law court emphasized form, while the chancery courts were more interested in the merits of the case and the justice of the decision. Another distinction was that juries were not used in equity.
It is true that the separation of common law from equity jurisdiction is peculiar to Great Britain; no other of the states of the old world having adopted it. But it is equally true that in no other of the states of the old world did trial by jury constitute a part of their jurisprudence, and every practical lawyer knows that to give jurisdiction to a court of equity, or to distinguish a case of equity jurisdiction from one of common law under the British practice, the averment is indispensable that the complainant is remediless at law. When it is said that the separation of common law from equity jurisdiction is peculiar to Great Britain, it must only be understood that it is there exercised by distinct courts and under distinct forms. For, as an essential branch or exercise of judicial power, it is acknowledged to exist everywhere; nor is it possible for anyone acquainted with its nature and character, and the remedies it affords for the assertion of rights or the punishment of wrongs, to doubt that the power to exercise it, and the means of exercising it must exist some where, or the administration of justice will be embarrassed if not incomplete. To administer it through the ordinary powers of a common law court is impracticable; and hence, wherever there exists no provision in the jurisprudence of a country for its full exercise, the consequence must ever be that after the common law court have ingrafted into their practice as much as can be there assumed, the Legislature is compelled to exercise the rest; or else leave a large space for the appropriate field of judicial action unoccupied. Livingston v. Moore, 7 Pet. 469, 547-548 (1833). at law. This suit was predicated entirely upon a purely legal right. It nowhere sets up or discloses a case for equitable relief. He does not seek to set aside his contract or the charter issued in pursuance to his agreements. He does not offer to pay off any of his indebtedness, or the monies he had secured by deed of trust upon the identical property in process of foreclosure at the very time he secured the delay and extension by these new agreements. He stands strictly upon a legal alleged right to recover damages for an alleged conversion or the recovery of this property, and as he has pleaded this case, so we must consider it, for we cannot go beyond that. Shall we apply the familiar maxim here and say,
"As you have bound yourself, so must you stand bound"? * * *
Parties must come into court with clean hands, and in seeking equitable relief should do, offer to do, equity.
Appellants sue on a strictly legal claim, sounding in damages for an alleged tort, and in the alternative for the possession of the property, and nowhere recognizes his indebtedness of offers to do equity, or indicates his willingness to discharge the same. Trott v. Plato, 244 S.W. 1085, 1087, 1089 (1922).
(Hough on Courts-Martial, 384, note; 27 State Trials, 625, in Theobald Wolfe Tone's case.) So it is a settled principle even in England, that, 'under the British constitution, the military law does in no respect either supersede or interfere with the civil law of the realm,' and that 'the former is in general subordinate to the latter' (Tytler on Military Law, 365); while 'martial law' overrides them all.
Though the engagements at Lexington and Concord happened on the 19th of April, 1775, though Parliament had in February previous declared the Colonies to be in a state of rebellion (Ibid., p. 247), and though thousands of militia had assembled near Bunker Hill before the 12th of June, no martial law had been established by Parliament, and not till that day did General Gage, alone and unconstitutionally, undertake, in the language of our fathers, to 'supersede the course of the common law, and, instead thereof, to publish and order the use and exercise of martial law.' (Ibid., p. 261; Journal of Old Cong., 147, a declaration on 6th July, 1775, drawn up by J. Dickenson.)
Another of these outrages was by Lord Dunmore, in Virginia, November 7th, 1775, not only declaring all the slaves of rebels free, but 'declaring martial law to be enforced throughout this Colony.' (Annual Register for 1775, p. 28; 4 American Archives, 74.) From: M-NL Date: 14 Jun 1999 Time: 01:21:06 Remote Name: 208.30.90.64
"History of Military Law. Military law and its civilian counterpart both have their roots in Roman law which came into existence about the first century B.C. The Roman law permeated western Europe during the first millennium A.D., and was then codified in Lombardy in the 11th century as the Libri Feudorum. "The Roman law made no distinction between civilian and military systems of law since it was predicated upon a military society in which a state of war was the normal condition. However, after the Roman law was brought to England in 1066 by William the Conqueror, the need for a separate system applying to members of the Army and Navy began to manifest itself. (*A separate system applying to members of the Military has evolved in the UNITED STATES. UCMJ)
A Constable's Court had existed in England during medieval times separate and apart from other courts of law. When William made the Constable the commander of the royal Army, the Constable's Court was given jurisdiction over military crimes." Fundamentals of Military Law, ROTCM 145-85, Department of the Army, February 1973, U.S. Government Printing Office, Washington, D.C.
The Codes of Justinian.
The resurrection of Roman law at the end of the eleventh century was a unique event in legal history and changed the future of European law. Shadowy figures with unusual names like Pepo and Irnerius began to teach the law of the ancient Romans at Bologna. The law that they taught was late imperial law that had been compiled by the Emperor Justinian in the sixth century.
This codification, the Corpus iuris civilis, yielded the material for teaching Roman law in the eleventh century. Its doctrines provided medieval jurists with a sophisticated model for contracts, rules of procedure, family law, testaments, and a strong monarchical constitutional system. Six hundred years after his death, Justinian's name became eponymous for legislator and codifier.
Justinian's codification had consisted of four parts: the Institutes, an introduction to Roman law originally written for first year law students, the Codex, containing imperial legislation from the second to the sixth century, the Digest, a compilation of excerpts from the writings of the Roman jurists, and finally, the Novellae, a compilation of Justinian's legislation.
The Digest was of fundamental importance for understanding the intricacies of Roman law. The excerpts from the Roman juris consults defined terms, discussed theoretical difficulties, cited court cases, and made the mass of legislation found in the Codex understandable and, therefore, usable. Without the Digest Roman law would have had little influence for European legal systems of the Middle Ages.
The medieval Digest and Codex, like Justinian's codification, are divided into books, the books then subdivide into titles and each title contains subchapters of excerpts of the Roman jurisconsults (Digest) or laws (Codex). However, the format of the medieval Corpus iuris civilis, known as the Littera Bononensis, was quite different from Justinian's codification.
The most significant accomplishment of the ius commune the Middle Ages was the intense literary activity of the jurists. From the twelfth to the fifteenth century they explored every nook and cranny of Justinian's Corpus iuris civilis and produced a massive legacy of juristic writings.
Executive Order Title List (14th Amendment).
"6: July 20* [1868]. Ratification of the 14th Amendment certified as valid, provided the consent Of Ohio and New Jersey be deemed as remaining in force despite subsequent withdrawal. *Signed by William H. Seward, Secretary of State. Has form of a proclamation." "7: July 28* [1868]. 14th Amendment certified as in effect and ordered published. *Signed by William H. Seward, Secretary of State." Presidential Executive Orders, pp. 1-2, Vol. I, Publ. Books, Inc. (1944).
"... the ruling power at Rome, whether Republican or imperial, granted, from time to time, to communities and to individuals in the conquered East, the Title of ROMAN, and the rights of Roman Citizens.
“Admiralty was a fairly pure body of merchant’s law. The Constitution gave admiralty to the federal courts. [* * *] Rules of admiralty law, in general, seemed to reflect merchants’ ideas about splitting and compromising loss. In case of accident, where both sides, or neither side, was at fault, both were to share in the loss.” Lawrence M. Friedman, 2nd ed., A History of American Law (Touchstone Books, 1985), pp. 551, 552.
Mr. Tucker then moved: Clause 9. [art. I, sec. 8] strike out the words “tribunals inferior to the Supreme Court,” and insert the words “court of admiralty.” Art. 3. sec. 1. from each sentence strike out the words “inferior courts” and insert the words “courts of admiralty.” [Amendment or change in wording failed to pass.] Amendments to the Constitution, Tuesday, August 18, 1789, Annals of Congress. Bennett B. Patterson, The Forgotten Ninth Amendment (The Bobbs-Merrill Company, Inc., 1955), pp. 194, 195.
Introduction of Law Merchant to the Common Law. By 1666 it was declared that the law of merchants was part of the common law of England, and therefore need not be specially alleged. Frederick G. Kempin, Jr., Historical Introduction to Anglo-American Law (Nutshell Series), (West Publ., 1990), p. 267. “The exclusive jurisdiction in admiralty was conferred on the national government, as closely connected with the grant of the commercial power.” New Jersey Steam Nav. Co. v. Merchant’s Bank (1814) 6 How. 392. 9 Fed.Stat. Annot. 86.
“A case in admiralty does not, in fact, arise under the Constitution or Law of the United States.” American Ins. Co. v. Canter, 1 Peter 511, 545 (1828).
Admiralty procedures, Otis said in 1764, “savour more of . . . Rome and the Inquisition, than of the common law of England and the constitution of Great Britain.” Another American propagandist compared the vice-admiralty courts to the “high commission and star chamber courts.” These exaggerations seemed true to anyone devoted to the common law, as were all Americans who opposed the revenue measures of the 1760’s. When they damned the civil-law procedures of the vice-admiralty courts as violative of the rights of Englishmen, they knew that no jury would return a verdict of guilty against anyone accused of breaking one of Parliament’s detested and allegedly unconstitutional revenue acts. In England, moreover, such cases could be tried only by the common-law Court of Exchequer. Leonard W. Levy, Origins of the Fifth Amendment (Macmillan Publishing Company, 1986), p. 395.
What is Probable Cause?
Sumner: “[. . . ] Then we come to the next question here: under what circumstances shall the onus probandi be upon the defendant? It is where probable cause is shown for such prosecution. I presume that I do not err when I say that it is not a phrase of the common law. Probable cause is not strictly a phrase of the common law. It is a phrase of the ancient Roman jurisprudence, and derived from the ancient Roman jurisprudence.”
Johnson: “From the prize law and the admiralty law.” Sumner: “Is not the admiralty law derived from the Roman jurisprudence?”
Johnson: “Certainly.”
Sumner: “It is a phrase of the ancient Roman jurisprudence, derived from that, entering into the jurisprudence of all continental Europe, and all that portion of our own jurisprudence which is dependent upon the ancient Roman jurisprudence, the admiralty law, as Senator from Maryland suggests, and also in England the law administered in consistorial courts. Now, in the Roman (Civil) law, to go back to that, we find that the term probable cause plays an immense part. There is not a term in Roman jurisprudence, I presume, more important than that. Where a party could show ‘probable cause’ for anything that he did it was a justification.” [. . .] “If the seizure be a ship, or if it be a man, or if it be any article of property, there is no mistake if the Government shows probable cause; and so, on the other hand, if there is probable cause to believe a man guilty, the burden of evidence under that jurisprudence absolutely changes and he has got to bring forward his evidence in order to overthrow that probable cause.”
Edmunds: [. . .]
Johnson: [. . .] “The honorable member from Massachusetts said very properly that the term ‘probable cause’ is not so familiar to common-law lawyers as to those familiar with the Roman law. He seemed to suppose that that phrase was not known to the common law. In that I think he is mistaken. Those words are in our statutes; they are familiar in cases of prize and in all cases of admiralty.”
Sumner: “Under the Roman law.”
Johnson: [. . .] “In a civil case, if the judge thinks, upon the evidence, that the case as it stands in point of law casts upon the defendant the burden of proving his defense, or that it stands in such a situation that it cast on the plaintiff the burden, changes the onus, he tells the jury so; but that is a question of law which may be carried up to the courts above, and his mistake corrected if he happens to make a mistake. [. . .]”
Edmunds: [. . .] “Now, what is ‘probable cause?’ It is very difficult to define the distinction between the meaning of the term ‘probable cause’ and the meaning of the term ‘prima facie evidence.’ It would puzzle anybody except a Philadelphia lawyer to make any sensible and satisfactory distinction between the two terms.” [. . .] The Congressional Globe, May 14, 1866, pp. 2565, 2566.
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http://www.law.cornell.edu/topics/admiralty.html
Admiralty law or maritime law is the distinct body of law (both substantive and procedural) governing navigation and shipping. Topics associated with this field in legal reference works may include: shipping; navigation; waters; commerce; seamen; towage; wharves, piers, and docks; insurance; maritime liens; canals; and recreation. Piracy (ship hijacking) is also an aspect of admiralty.
The courts and Congress seek to create a uniform body of admiralty law both nationally and internationally in order to facilitate commerce. The federal courts derive their exclusive jurisdiction over this field from the Judiciary Act of 1789 and from Article III, § 2 of the U.S. Constitution. Congress regulates admiralty partially through the Commerce Clause. American admiralty law formerly applied only to American tidal waters. It now extends to any waters navigable within the United States for interstate or foreign commerce. In such waters admiralty jurisdiction includes maritime matters not involving interstate commerce, including recreational boating.
Admiralty law in the United States developed from the British admiralty courts present in most of the American colonies. These courts functioned separately from courts of law and equity. With the Judiciary Act, though, Congress placed admiralty under the jurisdiction of the federal district courts. Although admiralty shares much in common with the civil law, it is separate from it. Common law does not act as binding precedent on admiralty courts, but it and other law may be used when no law on point is available. Parties subject to admiralty may not contract out of admiralty jurisdiction, and states may not infringe on admiralty jurisdiction either judicially or legislatively. However, since admiralty courts are courts of limited jurisdiction (which does not extend to nonmaritime matters), 28 USC § 1333(1), the "Savings to Suitors Clause," does provide for concurrent state jurisdiction so that non-admiralty remedies will not be foreclosed. Moreover, state courts may have jurisdiction where the matter is primarily local.
Under admiralty, the law of the ship's flag determines the source of law. For example, a ship flying the American flag in the Persian Gulf would be subject to American admiralty law; and a ship flying a
Norwegian flag in American waters will be subject to Norwegian admiralty law. This also applies to criminal law governing the ship's crew. But the ship must be flying the flag legitimately; that is, there must be more than insubstantial contact between the ship and its flag, in order for the law of the flag to apply. American courts may refuse jurisdiction where it would involve applying the law of another country, although in general international law does seek uniformity in admiralty law.
Just as the Federal Rules of Civil Procedure placed law and equity under the same jurisdiction in 1938, in 1966 the Rules subsumed admiralty. Nonetheless, the Supplemental Admiralty Rules take precedence over the Federal Rules of Civil Procedure in the event of conflict between the two.
TITLE 28 USC Sec. 1333
TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE--PART IV - JURISDICTION AND VENUE
CHAPTER 85 - DISTRICT COURTS; JURISDICTION
§ 1333. Admiralty, maritime and prize cases
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.
FOREIGN LAWS, evidence. The laws of a foreign country. They will be considered with regard to, 1. The manner in which they are to be proved. 2. Their effect when proved. 11. As courts of admiralty are courts under the laws of nations, their seals will be admitted as evidence without further proofs. 5 Cranch, 335; 3 Conn. 171. This is an exception to the general rule.http://www.alaska.net/~winter/bouvier1856_for.html