92. A Bill Constituting the Court of Admiralty
Be it enacted by the General Assembly, that the Court of Admiralty, to consist of three Judges, any two of whom are declared to be a sufficient number to constitute a court, shall have jurisdiction in all maritime causes, except those wherein any parties may be accused of capital offences, now depending and hereafter to be brought before them, shall take precedence in court according to the order in time of their appointments, and shall be governed in their proceedings and decisions by the regulations of the Congress of the United States of America, by the acts of General Assembly, by the laws of Oleron, and the Rhodian and Imperial laws, so far as they have been heretofore observed in the English Courts of Admiralty, and by the laws of nature and nations. If the regulations of Congress happen to differ from those of General Assembly, the latter are declared to be supreme in cases wherein citizens only are litigants, and the former in all other cases. Every future Judge of this court shall be chosen out of such counsel, if such there be, as shall have attended at the bar of the High Court of Chancery, or General Court, for seven years, and shall be appointed by commission of the Governor, and, at the time he shall give assurance of fidelity to the commonwealth, shall take the oath of office, following: “You shall swear, that well and truly you will serve this commonwealth, in the office of a Judge of the Court of Admiralty; that you will do equal right to all manner of people, great and small, high and low, rich and poor, of what country or nation soever they be, without respect of persons. You shall not take, by yourself, or by any other, any gift, fee, or reward of gold, silver or any other thing, directly or indirectly, of any person or persons, great or small, for any matter done, or to be done, by virtue of your office, except such fees or salary as shall be by law appointed. You shall not maintain, by yourself, or by any other, privily or openly, any plea or quarrel depending in the said court. You shall not delay any person of right for the letters or request of any one, nor for any other cause, and if any letter or request come to you contrary to the law, you shall nothing do for such letter or request, but you shall proceed to do the law, any such letter or request notwithstanding. And finally, in all things belonging to your said office, during your continuance therein, you shall faithfully, justly, and truly, according to the best of your skill and judgment, do equal and impartial justice, without fraud, favour, affection, or partiality.” The taking of which oath, or the certificate thereof, shall be registered in the said court. Any judge executing his office, before he shall have taken the said oath, or given assurance of fidelity to the commonwealth, shall forfeit five hundred pounds, of current money, to the use of the commonwealth. This court, or any two Judges thereof, when it is not sitting, shall appoint a Register, an Advocate and a Marshall, when those offices shall become vacant, who shall take the oath of office, and of whom the Register and Marshall shall moreover give bonds, the former in one thousand pounds, and the other in ten thousand pounds, payable to the Governor, or his successors, with sureties to be approved by the court, or two Judges, with conditions that they will faithfully and impartially perform their respective offices, and account for and pay all money which may come to their hands by virtue thereof: Upon which bonds suits may be severally brought for the benefit, and at the costs, of any persons grieved by breach of the conditions, until the damages to be recovered shall be equal to the penalties. The Judge, Register, Advocate and Marshall, shall continue in office so long as they respectively demean themselves well therein. The court shall sit, so often as there shall be occasion, at the capitol, in Williamsburg, until the General Assembly shall appoint another place, or at or in such house or place as the Governor, with advice of the Council, shall, by writ of adjournment direct, in case an accident by fire or tempest, or a pestilential disease, or an enemy shall make it necessary. This court shall have power to order sale of perishable goods to be made at any time, taking sufficient caution for securing the proceeds of the sale to him who shall be intitled to them by the final sentence. Every commander of a ship of war, or other vessel, belonging to the commonwealth, or to any citizen thereof, when he shall be required, shall assist the Marshall of the said court, acting by virtue of the process thereof, to seize and secure any vessel or goods, subject to such process, so as not to violate the right of any other of the United States, or of any state or prince in amity with them. When a citation shall have been served upon the owner or master of a vessel therein mentioned, if no person appear at the return-day, or at such further time as the court, for peculiar reasons, shall appoint, and enter into the litigation, the libel shall be taken for confessed. And if return be made that the master or owner was not found, and no person appear and claim, the court shall make an order, to be published three times in the Virginia Gazette, that the libel be taken for confessed, unless the party interested shall appear and shew cause to the contrary, at a certain day, to be limited in the order, not being less than three, nor more than six, weeks, after the making thereof; and, the said order being so published, if there be no such appearance, before expiration of the time limited, the libel shall be taken for confessed accordingly, caution being given to secure the effects, so that they may be subject to the future order of the court, and the sentence given thereupon shall be published in manner aforesaid: And if the master, owner, or other person interested, at any time, within one year after such last mentioned publication, or, that being omitted, within seven years after sentence, by petition desire that the cause be reheard, and give security for payment of such costs as may be awarded against him, the court shall admit such party to make his defence or claim in the same manner as if he had appeared at the return of the citation, and may give such sentence as they shall think just, and agreeable with the laws prescribed for the rules of their decisions. Commissions for taking the examinations of witnesses may be awarded, and such examinations may be read in the like cases as they may be in an action of common law. In a case where both parties are citizens of the commonwealth, every matter of fact affirmed by the one and denied by the other shall be stated as a formal issue, and tried before the same court by a jury, in like manner as such issue ought to be tried in an action at common law. The court may at any time after, but not before an interlocutory sentence, if they see good cause, require a person pretending a claim to any vessel or goods mentioned in the libel, to give security for the costs which may be occasioned by discussion of the claim, and may refuse to admit him until such security be given, and may award any party to pay costs when they judge it reasonable, unless he be the master, or owner, appearing and making a defence or a claim at the return of a citation; and the like execution for such costs may issue, and there shall be like proceedings thereupon as for costs recovered by judgments in an action at common law, otherwise than that the execution shall bear teste the day of examination, and may be made returnable to any day not less than one month thereafter. In case of a capture from an enemy, if there be a condemnation, and neither of the United States in general, nor the commonwealth in particular, be interested therein, the court shall order the sales to be made, and accounts thereof to be returned, by the libellant, or his agent, if it be his desire. A party thinking himself aggreived may appeal from the final sentence of the court, in case of a capture from an enemy with whom the United States of America are at war, to such court, and in such manner, as is or shall be appointed by Congress, and in any other case to the Court of Appeals, giving bond, with surety, in the latter, to prosecute the appeal, and perform the sentence, if it be affirmed.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 63–4. This Bill was prepared by Wythe; see Document iv, Part 5 in the present series.
See TJ’s Bill for Establishing a Court of Admiralty, under date of 25 Nov. to 4 Dec. 1776; also the Act as adopted at Oct. 1776 session, Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 202–6. Bill No. 92 is a restatement of the Act of 1776, though that clause of the Act which required that the proceedings and decisions of the Court of Admiralty be governed by “English statutes prior to the fourth year of the reign of king James the first” is not included in Bill No. 92; and, under the same general clause, Bill No. 92 includes the following not in the Act of 1776: “and by the laws of nature and nations.” This Bill was brought in separately 10 June 1779 and, on 11 June, was read the second time and referred to the committee of the whole. It was again presented by Madison 31 Oct. 1785, read twice, and on 14 Dec. postponed to Oct. 1786 session; on 1 Nov. 1786 it was brought up again, read twice, and committed to committee of whole (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1779, 1827 edn., p. 41, 42; same, Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17). Apparently no further action was taken until, at the Oct. 1792 session, an Act was passed “reducing into one, the several acts concerning … District Courts.” This Act included the following: “Those cases in which the court of admiralty heretofore had jurisdiction by law, and which are not taken away by the constitution of the United States, are hereby transferred to the district courts to be proceeded on as the law requires in the said court of admiralty” (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xiii, 432).