question may have been decided. To give us jurisdiction it must appear that such a question "was necessarily involved in the decision." Armstrong v. Treas., etc., 16 Pet., 282. The old rule, established by early cases, restricted our inquiries as to the existence and decision of the question "to the face of the record." Previous to the Act of 1867, R. S., sec. 709, it was 639*] *uniformly held, except as to the State of Louisiana, where a peculiar practice prevails, that we would not look into the opinions of the courts to ascertain what had been decided. Gibson v. Chouteau, 8 Wall., 317, 19 L. ed., 317; Rector v. Ashley, 6 Wall., 142, 18 L. ed., 733; Williams v. Norris, 12 Wheat., 117; R. Co v. Marshall, 12 How., 165; Cousin v. Blanc, 19 How., 202, 15 L. ed., 601. Since that Act, however, in Murdock v. Memphis, ante, 429, we intimated that we might, under some circumstances, examine those opinions, when properly authenticated, as far as might be useful for the purpose of ascertaining that fact, but at the same time were careful to say that, "After all, the record of the case, its pleadings, bills of exceptions, judgments, evidence, in short, its record, whether it be a case in law or equity, must be the chief foundation of inquiry; and while we are not prepared to fix any absolute limit to the sources of inquiry under the new Act, we feel quite sure it was not intended to open the scope of it to any loose range of investigation." We are not now called upon to fix this limit. It is sufficient for all the purposes of this case to hold as we do, that if the record shows upon its face that a federal question was not necessarily involved and does not show that one was raised, we will not go outside of it, to the opinion or elsewhere, to ascertain whether one was in fact decided.

In this case the record shows clearly upon its face that the decision of such a question was not required. The indictment was for selling lottery tickets and keeping a gaming table. The plea, although to the whole indictment, met only part of it. The charge of keeping a gaming table was left entirely unanswered.

Maritime law, foundation of—in different countries-system in force when Constitution was adopted limit of maritime law, a judicial question courts cannot change it-decisions of this court-power of Congress-of States-material men have no lien on vessel in home port, by maritime law when such lien can be created by a State-petition for funds in court-12th Admiralty Rule-mortgagee's right to surplus funds.

*1. Whilst the general maritime law is the basis of the maritime law of the United States, as well as of other countries, it is only so far operative in this ages thereof. or any country as it is adopted by the laws and usIt has no inherent force of its own.

2. In particular matters, especially such as approach a merely municipal character. the received maritime law may differ in different countries, without affecting the general integrity of the system as a harmonious whole. familiar to the lawyers and statesmen of this coun3. The general system of maritime law which was try when the Constitution was adopted, was intended and referred to when it was declared in that states shall extend "to all cases of admiralty and instrument that the judicial power of the United maritime jurisdiction." Thus adopted, it became the maritime law of the United States, operating uniformly in the whole country.

4. The question as to the true limits of maritime law and admiralty jurisdiction is exclusively a judicial question, and no state law or Act of Congress can make it broader or narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this country, and on such legislation as may have been competent to affect it. these sources and giving construction to the laws 5. The decisions of this court, illustrative of and Constitution, are especially to be considered; and when these fail us, we must resort to the principles by which they have been governed 6. It is settled by repeated adjudications of this court, that material men, furnishing repairs and supplies to a vessel in her home port, do not acquire thereby any lien upon the vessel by the general maritime law, as received in the United States.

7. Whilst it cannot be supposed that the framers of the Constitution contemplated that the maritime law should remain unchanged, the courts cannot change it; they can only declare it. If within its proper scope any change is desired in its rules, other than those of procedure, it must be made by the Legislative Department.

8. Semble, that Congress, under the power to regin-ulate commerce, has authority to establish a lien on vessels of the United States in favor of material men, uniform throughout the whole country,

A plea to be good as bar to the whole dictment, must meet the whole case. If it does not, it will be held bad upon demurrer.

The demurrer to this plea was, therefore, properly sustained upon this ground. Such being the case it is a matter of no consequence to us that the court may have gone further and decided a federal question. The decision 640*] of such a question was not necessarily involved in the determination of the cause. It follows that this writ of error must be dismissed.

CATHARINE A. RODD, Admrx. of the Succession of Edward W. Rodd et al., Appt.,

v.

HENRY G. HEARTT, Daniel C. McCan, et al., and the Proceeds of the Sale of the Steamer Lottawanna.

(See 8. C., "The Lottawanna," 21 Wall., 558-609).

9. In particular cases in which Congress has not which it is invested by the Constitution, and where exercised the power of regulating commerce, with the subject does not, in its naturé. require the exclusive exercise of that power, the States, unt!! Congress acts, may continue to legislate.

10. Hence, liens granted by the laws of a State in favor of material men for furnishing necessaries to a vessel in her home port in said State are valid, though the contract to furnish the same is a maritime contract, and can only be enforced by proceedings in rem in the District Courts of the United

States.

11. Any person having a specific lien on or a vested right in a surplus fund in court, may apply by petition for the protection of his interest under the 43d Admiralty Rule.

12. Separate libels were filed in 1871, against a steamboat for wages, for salvage, for supplies furnished at her home port, and for the amount due on a mortgage: held, on the evidence, that the lien for supplies had not been perfected under the state *Headnotes by Mr. Justice BRADLEY.

NOTE.-Lien for repairs and necessaries for vessel and for supplies, salvage and freight; proceedings in rem for-see notes, 2 L. ed. U. S. 636; 4 L. ed. U. S. 609 6 L. ed. U. S. 531. Admiralty jurisdiction to enforce liens under state laws-see note. 21 C. C. A. 21.

law; and if it had been that the libels for such sup- | 23 La. Ann., 695; Marmillon v. Archinard, 24 plies could not be sustained prior to the recent change in the 12th Admiralty Rule; held, also, that the libel upon the mortgage could not be sustained as an original proceeding, but that the mortgagees having petitioned for the surplus proceeds of the vessel, were entitled to have the same applied

tinctly called in question the correctness of the decision in The General Smith, in asserting the admiralty jurisdiction in personam, it is apparent that unusual importance must have attached to the next case coming before the court involving these points. This was Peyroux v. Howard, 7 Pet., 324, January Term, 1833.

The court, by Mr. Justice Thompson, (no member of it dissenting), expressly sustained the doctrine of The General Smith in every particular, and held explicitly: first, that no lien is given or implied by the maritime law in the case of a domestic ship; second, that, if the local law gives the lien, it may be enforced in the admiralty.

This rule simply embodies the results of the previous decisions of the Supreme Court in the cases of The General Smith and Peyroux v. Howard, above cited. It neither enlarged nor curtailed the original jurisdiction of the admiralty courts under the Constitution and Judiciary Act.

From 1845 to 1858, the rule as above cited was in force, and there was no departure from the principles laid down in The General Smith, which was regarded as carrying the admiralty jurisdiction to the extreme, and Mr. Justice Daniel says in Ward v. Peck, 18 How., 267, 15 L. ed. 383 that "A great portion of the admiralty jurisdiction now permitted in this country, may be traced to a dictum in argument in the case of The General Smith in the assertion of a doctrine, i. e., the jurisdiction in personam, which, if now for the first time discussed and examined, might not command the sanction of this tribunal.

N. J. Steam Nav. Co. v. Merchants' Bank, 6 How., 344, Dec. Term, 1847.

N. B. In his opinion, Judge Thompson inaccurately says that The Gen. Smith decided that "The jurisdiction of the admiralty in such cases, where the repairs are upon a domestic ship, depends upon the local law of the State." This inadvertent remark was corrected by the court in the next case. See The Orleans v. Phœbus, 11 Pet., 184. A master of a vessel had sued in admiralty in the United States District Court of Louisiana, for his wages. The state law gave him a lien, and process in rem had issued out of the United States District Court to enforce it, based on the decision of Peyroux v. Howard, supra. But on appeal, Liens on vessels incumber commerce, and are the Supreme Court held that the contract not discouraged, so that when the owner is presbeing maritime, the district court had no jur-ent, no lien is acquired by the material man, isdiction.

The court says, Judge Story delivering the opinion, that the contract is not maritime, and then proceeds as follows:

"But it is said that the law of Louisiana creates a lien in favor of the master of a vessel and, if so, it may, upon the principle recognized by this court in Peyroux v. Howard, 7 Pet., 343, be enforced in the admiralty. That decision does not authorize any such conclusion. In that case the contract was created as a maritime contract, and the lien under the state law was enforced in the admiralty on the ground that the court, under such circumstances, had jurisdiction of the contract as maritime, and then the lien, being attached to it, might be enforced according to the mode of administering remedies in the admiralty. The local laws can never confer jurisdiction on the courts of the United States. They can only furnish rules to ascertain the rights of parties, and thus assist in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States." 11 Pet.

184.

Thus the law stood when Congress, by the Act of August 23, 1842, 5 Stat, at L., 499. provided for the adoption by the Supreme Court of Rules of Practice in the Courts of the United States, in causes of admiralty and maritime jurisdiction. The court, in December Term, 1844, promulgated such rules, to take effect September 1, 1845.

Rule XII. was as follows:

"In all suits by material men for supplies, repairs or other necessaries for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam, and the like proceedings in rem, shall apply to cases of domestic ships, where, by the local law, a lien is given to material men for supplies, repairs and other necessaries." See, XX., 922.

"As to repairs and necessaries in the port to which the ship belongs, no lien is implied unless recognized by that law." People's Ferry Co. v. Beers, 20 How., 393, 15 L. ed., 961, Dec. Term, 1857.

nor is any when the vessel is supplied or repaired in the home port.

But not only did this court unanimously reverse the decree in favor of the shipwrights, it also repealed its own Rule XII. at the next Term, and abandoned as an "error" the attempt to enforce a lien in favor of material men in cases where no lien existed by the maritime law, and where the only lien was given by the state law.

This was done deliberately, after full consideration of the subject, and despite urgent appeals in the interest of the material men. Light is thrown upon the action of the court in repealing the Rule by the case of Taylor v. Carryl, 20 How., 583, 15 L. ed. 1028, also December Term, 1857.

The new and substituted rule was as follows: see Propeller Niagara v. Cordes, 21 How., 11, 16 L. ed., 41:

"Rule XII. In all suits by material-men for supplies or repairs or other necessaries for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship or freight in rem, or against the master or owner alone in personam, and the like proceedings in personam, but not in rem, shall apply in case of domestic ships for supplies, repairs or other necessaries." (See 20 L. ed., 922.)

The court gave its own explanation of this change of the Rule in the case of Maguire v. Card, 21 How., 248, 16 L. ed., 118, Dec. Term, 1858, which was decided immediately after the alteration, and which is reported in the same volume containing the new rule. "We have at this Term amended the 12th Rule of Admiralty, so as to take from the district courts the right of proceeding in rem against

a

domestic vessel for supplies and repairs which had been assumed upon the authority of a lien given by state laws, it being conceded that no such lien existed according to the admiralty law; thereby correcting an error which

had its origin in the court in the case of The General Smith. We have determined to leave all these liens depending upon state laws and not arising out of the maritime contract, to be enforced by the state courts."

The precise "error" which had its "origin" in The General Smith was explained by the court to consist in allowing the use of the process in rem to enforce a lien which was not maritime, and which had no existence in admiralty law. It did not touch the question of the power of the State to create such liens, nor the question of the admiralty jurisdiction over the contract.

Judge Clifford, like Ch. J. Taney, treats the
power of the State to create the lien as "un-
doubted," irrespective of the question of the
mode of its enforcement.

See, The Grapeshot, 9 Wall., 141, 19 L. ed.,
656; The Lulu, 10 Wall., 192, 19 L. ed. 906; The
Kalaroma, 10 Wall., 204, 19 L. ed., 941; The
Custer, 10 Wall., 215, 19 L. ed. 944.

In this last cited group of cases relating to
the maritime lien in favor of material men on
foreign vessels, the court takes occasion to re-
iterate and emphasize the doctrine that, in the
case of domestic vessels, no such lien exists.

A most important decision followed in Leon In The St. Lawrence, 1 Black, 522, 17 L. ed., v. Galceran, 11 Wall., 185, 20 L. ed., 74, Dec. 180, Dec. Term, 1861, the precise distinction Term, 1870. This was a suit for seamen's between the jurisdiction of the admiralty court wages in the State Court of Louisiana under in respect to the maritime contract and its a statute giving the privilege by writ of sewant of power in respect to the lien, was ex-questration operating as an attachment on plained and made clear. In this case the libel- mesne process, and not as a direct proceeding ants had, before the alteration of the 12th in rem against property alone, and as an "ofRule, filed their libel in rem in the United fending thing," and under this writ the vessel States District Court for supplies furnished in was seized. This court sustained the proNew York, the home port, alleging the mari- ceeding as a common law remedy, saved by the time contract and the lien by the local law. Judiciary Act to the suitor, the sequestration They had a decree. Pending the suit, the 12th operating not as an enforcement in rem of the Rule was changed, and it was claimed that, maritime lien, but as an attachment to bring the right to process in rem being no longer the vessel under the dominion of the state in existence, the district court had no juris- court, for the purpose of subjecting it to diction over the cause. But this court held: judgment, and said, per Clifford, J., referring First. That the admiralty court had juris- to the previous cases of The Moses Taylor, diction, the contract being maritime. The Hine, The Trevor and The Belfast: Common law remedies are not competent to enforce a maritime lien by a proceeding in rem and, consequently, the original jurisdiction to enforce such a lien by such a mode of proceeding is exclusively in the district courts, which is precisely what was decided in each of the three cases to which reference is made, and the precise language of the opinion in The Belfast is repeated: "Authority, therefore, does not exist. Compare 11 Wall., 192, 20 L. ed., 76, with 7 Wall., 645, 19 L. ed. 272.

Second. That it had not jurisdiction to issue process in rem, inasmuch as the principles of the civil law, by which a maritime lien is given in the case of a domestic vessel, formed no part of the admiralty and maritime jurisdiction conferred on the Government of the United States.

The question at once arose whether, in cases where the contract was maritime, the state courts had any jurisdiction to authorize and enforce a direct proceeding in rem.

This question was determined in The Moses Taylor, 4 Wall., 411, 18 L. ed. 397, December Term, 1866.

ground that the contract for pilotage was mar-
itime and properly cognizable in the United
States District Court, and that the sum fixed
by the state law could be recovered.
was no question of maritime lien or process
in the case.

There

In Ex parte McNeil, 13 Wall., 236, 20 L. ed., 624, Dec. Term 1871, a libel in personam, filed by a New York Sandy Hook pilot to recover In The Hine v. Trevor, 4 Wall., 555, 18 L. off-shore pilotage, the rate of which was preed., 451, Dec. Term, 1866, the court affirmed scribed by a New York statute, was sustained, the doctrine of The Moses Taylor, and held and the vessel held to have been properly atthat the grant of original admiralty jurisdic-tached, in the absence of the owners, on the tion of the Act of 1789 is exclusive, and that state statutes which attempt to confer upon state courts a remedy for marine contracts or torts, by proceedings strictly in rem, are void. In The Rock Island Bridge, 6 Wall., 213, 18 L. ed., 753, Dec. Term, 1867, the court held, in accordance with all the previous decisions, that the admiralty, when it has jurisdiction of the cause, may proceed in personam, and when the cause is the subject of a maritime lien, may also proceed in rem; but no proceed ing in rem could be allowed in admiralty un less a maritime lien existed, and that the lien and the proceeding in rem are, therefore, correlative; where one exists, the other can be taken, and not otherwise.

The Belfast, 7 Wall., 624, 19 L. ed., 266, Dec. Term. 1868, was a case in which a statute of Alabama giving liens on domestic vessels for supplies and for debts contracted by the master, etc., and authorizing proceedings in rem to enforce them, was held unconstitutional and void.

The decisions of this court averse to the power of the States to enforce maritime contracts by direct proceeding, in rem, were followed in New York, by the case of The Josephine, 39 N. Y., 19; Sheppard v. Steele, 43 N. Y., 52; Brookman v. Hamill, 43 N. Y., 554.

In this state of the decisions, the material men having no longer the privilege of direct proceedings in rem, either by the municipal or maritime law, this court, at December Term, 1872, again amended Rule XII., to read as follows:

"Rule XII. In all suits by material men for supplies or repairs, or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone, in personam."

657

ANN

Ex parte Kirkland, 21 Am. Law Reg. (12 N. S.), 300; The St. Lawrence, 1 Black, 522, 17 4. The precise distinction for which we conL. ed., 180; The Augusta, 5 Am. Law Times, tend, between jurisdiction to enforce a mari-495; Randall v. Kreiger, 5 Chicago Legal time contract and power to enforce a mari- News, 465; Sampeyreac v. U. S., 7 Pet., 222; time lien, was taken in the case of The Two Crawford v. Branch Bank of Alabama, 7 How., Ellens, 8 Moore, P. C. (N. S.) 398, where it was held in a controversy for priority between a mortgagee of the vessel and material man claiming under the Admiralty Court (Acts, of 3 and 4 Vict., ch. 65, and 24 Vict., ch. 10, 1861), which expressly gave jurisdiction in cases of necessaries supplied to foreign ships, that, although jurisdiction was conferred by the Act, no maritime lien arose or could be enforced. See, also, to same effect, The Pacific Browning & Lush., 243.