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or more tons burden, the court proceeds as an instance court of admiralty, by libel in rem, and the trial is by the court.

It may now be considered as the settled law of this country, that all seizures under laws of impost, navigation, and trade, if made upon tide waters navigable from the sea, are civil cases of admiralty jurisdiction; and the successive judgments of the Supreme Court, upon this point, are founded upon the Judiciary Act of 1789. If the Act of Congress declares them to be cases of admiralty jurisdiction, it is apprehended that this is an extension of admiralty powers beyond the English practice. Cases of forfeiture for breaches of revenue law are cognizable in England in the Exchequer upon information, though the seizure was made upon navigable waters, and they proceed there to try the fact on which the forfeiture arises, by jury. (a) Informations are filed in the Court of Exchequer for forfeiture, upon seizure of property, for breach of laws of revenue, impost, navigation, and trade. In the case of The Attorney-General v. Jackson, (b) the seizure was of a vessel lying in port at Cowes, for breach of the Act of navigation, and the proceeding was by information and trial by jury, according to the course of the common law. Lord Hale said, (c) that informations of that *na- * 376 ture lay exclusively in the Exchequer. Congress had a right, in their discretion, to make all such seizures and forfeitures cognizable in the district courts; but it may be a question, whether they had any right to declare them to be cases of admiralty jurisdiction, if they were not so by the law of the land when the constitution was made. The constitution secures to the citizen trial by jury, in all criminal prosecutions, and in all civil suits at common law, where the value in controversy exceeds twenty dollars. These prosecutions for forfeitures of large and valuable portions of property, under revenue and navigation laws, are highly penal in their consequences; and the government and its officers are always parties, and deeply concerned in the conviction and forfeiture. And if, by Act of Congress, or by judicial decisions, the prosecution can be turned over to the admiralty side of the District Court, as being neither

(a) Attorney-General v. Le Merchant, 1 Anst. Rep. 52. (b) Bunb. Rep. 236.

(c) Harg. L. T. 227.

a criminal prosecution nor a suit at common law, the trial of the cause is then transferred from a jury of the country to the breast of a single judge. It is probable, however, that the Judiciary Act of 1789 did not intend to do more than declare the jurisdiction of the district courts over these cases; and that all prosecutions for penalties and forfeitures, upon seizures under laws of impost, navigation, and trade, were not to be considered of admiralty jurisdiction, when the case admitted of a prosecution at common law; for the Act saves to "suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it."1 We have seen that it is competent to give it, because, under the vigorous system of the English law, such prosecutions in rem are in the Exchequer, according to the course of the common law; and it may be doubted whether the case of the La Vengeance, on which all the subsequent decisions of the Supreme Court have rested, was sufficiently considered. There is, however, much colonial precedent for this extension of admiralty jurisdiction. The vice-admiralty courts, in this country, when we were colonies, and also in the West Indies,

obtained jurisdiction in revenue causes to an extent * 377 'totally unknown to the jurisdiction of the English admiralty, and with powers quite as enlarged as those claimed at the present day. (a) But this extension, by statute, of the jurisdiction of the American vice-admiralty courts beyond their ancient limits, to revenue cases and penalties, was much discussed and complained of on the part of this country, at the commencement of the Revolution. (b)

(a) See the form of the commissions of these vice-admiralty courts under the colonial establishments, in a note to the case of De Lovio v. Boit, 2 Gallison, 470, and in Du Ponceau on Jurisdiction, p. 158.

(b) Journals of Congress, vol. i. pp. 22, 29, 39. Journals of the Assembly of the Colony of New York, vol. ii. pp. 795, 797, 800. In England, as Judge Conkling observes, all revenue seizures are cognizable exclusively in the Court of Exchequer; and such of them as are cognizable on the admiralty side of the district courts of the United States, are made so only by force of a legislative act. The effect of the statute as to such seizures embraced by it, is to withdraw them from the consideration of a jury, according to the course of the civil law. Conkling's Treatise, 2d edit. p. 391.

1 As to the construction of the last-mentioned clause of the constitution, see ante, (p. 369,) note (1).

Whatever admiralty and maritime jurisdiction the district courts possess, would seem to be exclusive, for the constitution declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; and the Act of Congress of 1789 says, that the district courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. (a) It is certain, however, that the state courts take an extensive and unquestionable cognizance of maritime contracts, and on the ground that they are not cases, strictly and technically speaking, of admiralty and

(a) Constitution, art. 3, sec. 2. Act of Congress of September 24th, 1789, c. 20, sec. 9. Vide supra, pp. 304, 372., Mr. Justice Story (3 Comm. Const. U. S. p. 533, note) says, that the opinion here expressed is "founded in mistake," and that the admiralty and maritime jurisdiction was intended by the constitution to be exactly as extensive or exclusive, and no more so, in the national judiciary, than it "existed in the jurisprudence of the common law;" and that where the cognizance of admiralty and maritime cases "was previously concurrent in the courts of common law," it remained so. If I was mistaken as to the meaning of the constitution, in supposing that the judicial power, extending "to all cases of admiralty and maritime jurisdiction," was exclusive, I was led into the error by following the construction assumed by the Supreme Court of the United States, in the judgment delivered in Martin v. Hunter's Lessee, 1 Wheaton, 304. In that case, the court observed, that the words "the judicial power shall extend," &c., were imperative, and that Congress could not vest any portion of the judicial power of the United States, except in courts ordained and established by itself. It was their duty to vest the whole judicial power in their own courts. The learned judge who delivered the opinion of the court, noted and dwelt on the distinction in the language of the constitution, between declaring that the judicial power shall extend to all cases in law and equity arising under the constitution to all cases affecting ambassadors, &c. — to ALL CASES of admiralty and maritime jurisdiction and then, (dropping ex industria the word all,) to controversies to which the United States shall be a party to controversies between, &c., &c. The difference of phraseology, he said, was not accidental, but designed, and the jurisdiction in the one case was imperative, and in the other might be qualified; and that, upon any construction, the judicial power of the United States was in some cases unavoidably exclusive, and in all others might be made so, at the election of Congress. Upon this ground I was led to the view I took in the text, that as the admiralty and maritime jurisdiction, within the purview of the constitution, was exclusive, it ought not to extend further than the settled admiralty and maritime jurisdiction when the constitution was formed. It appeared to me, therefore, upon a reconsideration of the subject, that the elaborate decision in De Lovio v. Boit, grasped at too much jurisdiction. But we are taught by the note in the Commentaries referred to, that the state courts have all the concurrent cognizance which they had originally, in 1787, over maritime contracts, and that this concurrent jurisdiction does not depend, as declared in 1 Wheaton, 337, on the pleasure of Congress, but is founded on the “reasonable interpretation of the constitution."

VOL. I.

36

maritime jurisdiction. If, however, the claim of the district courts be well founded to the cognizance of all maritime contracts, wheresoever the same may be made, or whatever may be the form of the contract, it would seem that the jurisdiction of the state courts over those contracts could not be sustained. But I apprehend it may fairly be doubted, whether the constitution of the United States meant by admiralty and maritime jurisdiction, anything more than that jurisdiction which was settled and in practice in this country under the English jurisprudence, when the constitution was made; and whether it had any retrospective or historical reference to the usages and

practice of the admiralty, as it once existed in the middle 378 ages, before its territories had been invaded and partly subdued by the bold and free spirit of the courts of common law, armed with the protecting genius and masculine vigor of trial by jury.

Jurisdiction

of the in

stance

courts.

(4.) Jurisdiction of the instance courts.

The extensive and superior claims of the American courts of admiralty, as courts of civil maritime jurisdiction, we have had occasion already to consider; but, according to the English jurisprudence, the instance court takes cognizance only of things done, and contracts not under seal made super altum mare and without the body of any county. This, of course, excludes all creeks, bays, and rivers, which are within the body of some county; and if the place be the sea-coast, then the ebbing and flowing of the tide determines the admiralty. The cause must arise wholly upon the sea, and not within the precincts of any county, to give the admiralty jurisdiction. If the action be founded on a matter done partly on land and partly on water, as if a contract be made on land to be executed at sea, or be made at sea to be executed on land, the common law has the preference, and excludes the admiralty. (a) The admi

(a) Com. Dig. tit. Adm. E. 1, 7, 10, 12, F. 1, 2, 4, 5. 3 Blacks. Comm. 106, 107. In cases purely dependent upon the locality of the act done, the admiralty jurisdiction is limited to the sea and to tide water as far as the tide flows, and does not reach beyond high-water-mark. But in mixed cases, as where salvage services are performed

1 A more enlarged jurisdiction appears to be now established. See ante, p. [369,] note (1).

ralty has cognizance of maritime hypothecations of vessels and goods in foreign ports, for repairs done, or necessary supplies furnished; (a) and in the case of Menetone v. Gibbons, (b) it was admitted by the K. B., that the admiralty had entire jurisdiction in the case of an hypothecation bond, charging a ship with money taken up in a foreign port for necessaries, though the bond was under seal, and executed on land. The jurisdiction in such a case, depended on the subject-matter, for the contract was merely in rem, and there was no personal covenant for the payment of the money, and the admiralty jurisdiction in such a case was indispensable, as the courts of common law

partly on tide waters and partly on shore, for the preservation of the property, the admiralty has jurisdiction. United States v. Coombs, 12 Peters, 72. In Peyroux v. Howard, 7 Peters's U. S. Rep. 324, the Supreme Court decided, that New Orleans was within the ebb and flow of the tide, and that admiralty jurisdiction prevailed there, and that repairs done there by a shipwright upon a steamboat were essentially a maritime service, and gave a lien, notwithstanding the commencement or termination of the voyage of the steamboat might be at some place up the Mississippi, beyond the reach of the tide. It was held, in Smith v. The Pekin, Gilpin, 203, that a contract for wages on a voyage between ports of adjoining states, and on the tide waters of a river or bay, is within the jurisdiction of the district courts, and may be enforced by a suit in rem in the admiralty. But if a vessel be engaged substantially in interior navigation and trade, not on tide waters, the admiralty has no jurisdiction, though she may have touched at one terminus of the voyage on tide waters. The Steamboat Orleans v. Phoebus, 11 Peters, 175. The principle which seems to be established is that admiralty jurisdiction extends to all maritime causes and services, to be substantially performed on tide See pp. 364, 367, 369, 370, 371, 378, 379, of this volume. The Act of Congress, 26th February, 1845, (5 Statutes at Large, 726,) conferring upon the district courts the same admiralty jurisdiction in matters of contract and tort, concerning vessels of twenty tons burden, enrolled and licensed for the coasting trade, and, at the time employed in navigation between different states and territories, as these courts, at that time, possessed, in respect to such vessels engaged in commerce on the high seas, was held to be constitutional, in the case of The Propeller Genesee Chief v. Fitzhugh, 12 How. U. S. 443. The lakes and their connecting waters are within the scope of the admiralty jurisdiction. Fretz v. Bull, Id. 466.

waters.

(a) Johnson v. Shippen, 1 Salk. Rep. 34. Lord Raym. 982, S. C. It seems to be, also, not only the better opinion, but the settled law, that the admiralty has jurisdiction in rem in the case of bottomry bonds creating a lien on a vessel, whether the bond was executed by the owner in a foreign or in a home port. Whenever the local law gives

a lien on the vessel as a security, or there is an express hypothecation, the admiralty has jurisdiction in rem to enforce it. Corish v. The Murphy, 2 Bro. Civ. & Adm. Law, 530, App. The Sloop Mary, 1 Paine's Cir. R. 671. The Brig Draco, 2 Sum

ner, 157.

(b) 3 Term Rep. 267.

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