And to whatever extent the criminal jurisdiction of the admiralty may extend, the Judiciary Act of 1789 provides, that the trial of all issues in fact in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury. Limits of ad- (3.) Division line between the jurisdiction of the admidiction. ralty and of courts of common law.

miralty juris

There has existed a very contested question, and of ancient standing, touching the proper division or boundary line between the jurisdiction of the courts of common law and the courts of admiralty. The admiralty jurisdiction in England originally extended to all crimes and offences committed upon the sea, and in all ports, rivers, and arms of the sea, as far as the tide ebbed and flowed. Lord Coke's doctrine was, (c) that the sea did not include any navigable waters within the body of a county; and Sir Matthew Hale supposed, (d) that prior to the statute of 35th Edw. III.

the common law and the admiralty exercised jurisdiction * 366 concurrently * in the narrow seas, and in ports and havens within the ebb and flow of the tide. Under the statutes of 13 R. II. c. 5, and 15 R. II. c. 3, excluding the admiralty jurisdiction in cases arising upon land or water within the body of a county, except in cases of murder and mayhem, there have been long and vexatious contentions between the admiralty and the common-law courts. On the sea-shore the common-law jurisdiction is bounded by low-water mark where the main sea begins; and between high and low water mark, where the sea ebbs and flows, the common law and the admiralty have a divided or alternate jurisdiction. (a)

With respect to the admiralty jurisdiction over arms of the sea, and bays and navigable rivers, where the tide ebbs and flows, there has been great difference of opinion, and great litigation, in the progress of the English jurisprudence. On the part of the admiralty it has been insisted, that the admiralty continued to possess jurisdiction in all ports, havens, and navigable rivers, where the sea ebbs and flows below the first bridges. This seemed also to be the opinion of ten of the judges of Westminster, on a reference

(c) 4 Inst. 135.

(d) 2 Hale P. C. c. 3.

(a) 1 Blacks. Comm. 112; Constable's case, 5 Co. 106, 107; Barber v. Wharton, 2 Lord Raym. 1452; 2 East P. C. 803; 4 Blacks. Comm. 268; The King v. Forty-nine Casks of Brandy, 3 Hagg. Adm. 257. The jurisdiction of the admiralty subsists when the shore is covered with water, and the jurisdiction of the common law when the land is left dry. The Pauline, 2 Rob. Adm. 358.

to them in 1713. (b) On the part of the common-law courts it has been contended, that the bodies of counties comprehended all navigable rivers, creeks, ports, harbors, and arms of the sea, which are so narrow as to permit a person to discern and attest upon oath, anything done on the other shore, and as to enable an inquisition of the facts to be taken. (c) In the case of 367 Bruce, (a) in 1812, all the judges agreed, that the common law and the admiralty had a concurrent jurisdiction in bays, havens, creeks, &c., where ships of war floated. The high seas mean the waters of the ocean without the boundary of any county, and they are within the exclusive jurisdiction of the admiralty up to high-water mark when the tide is full. The open ocean which washes the sea-coast is used in contradistinction to arms of the sea enclosed within the fauces terræ, or narrow headlands or promontories; and under this head is included rivers, harbors, creeks, basins, bays, &c., where the tide ebbs and flows. They are within the admiralty and maritime jurisdiction of the United States; but if they are within the body of a county of any particular state, the state jurisdiction attaches. (b)

(b). Cited in Andrew, 232.

(c) King v. Soleguard, Andrew, 231; The resolution of the judges, in 1632, cited in 2 Bro. Civ. and Adm. Law, 78; Stanton J., Fitz. Abr. Corone. 399, 8 Edw. II; 4 Inst. 140; Hawkins P. C. b. 2, c. 9, sec. 14; 2 East P. C. 804; 5 Wheaton, 106, note; Com. Dig. tit. Adm. E. 7, 14; United States v. Grush, 5 Mason, 290.

(a) 2 Leach's Crown Cases, 1093, case 353, 4th edit.

(b) Hale Hist. P. C. vol. i. p. 424; Ibid. vol. ii. pp. 13, 18, 54; 3 Inst. 113; Constable's case, 5 Co. 106 a; Lord Hale, Harg. L. T. c. 4, p. 10; United States v. Grush, 5 Mason, 290. In the United States District Court for Connecticut, January 7th, 1840, in the case of Gedney v. Schooner L'Amistad, the judge held, that a vessel on tide waters, off Shore, within Montauk Point, and five miles from it, and eighteen miles from New London, and a half a mile from Long Island shore, and not in any known harbor, was on the high seas, and within the admiralty jurisdiction. The high seas imported the open ocean without the fauces terræ. The Schooner Harriet, 1 Story C. C. 259. In case of The Public Opinion, 2 Hagg. Adm. 398, it was held, that the admiralty had not jurisdiction of a case arising in the Humber, twenty miles from the sea, but within the flux and reflux of the tide, because it was infra corpus comitatus. But in the Northern District Court of the United States in New York, in the case of Van Santvort v. The Boat John B. Cole, in 1846, it was decided, that a contract to be performed on board of a canal-boat at Albany, being within the ebb and flow of the tide on the navigable Hudson, for the delivery of a cargo of flour in New York, was a maritime contract, relating to the business of navigation and trade, and within the admiralty jurisdiction. The New York Legal Observer for October, 1846.1 In Thomas v. Lane, 2 Sumner R. I., in the case of a libel for a maritime tort, it

1 It is not necessary that the voyage should be limited to tide waters, to give admiralty jurisdiction. The Robert Morris, Wallace Jun. 33.

The extent of the jurisdiction of the district courts, as courts of admiralty and maritime jurisdiction, was very fully examined,

was admitted that the admiralty had no jurisdiction over torts, except those that were maritime or committed on the high seas, or on waters within the ebb and flow of the tide, and that the courts of common law denied the jurisdiction, if the waters are within the body of the county. It was held, however, to be a clear point, that the exception did not apply to tide waters in foreign countries, and that the admiralty jurisdiction attached to torts on such waters, but the libel must aver that the trespass was on tide water in a foreign port, and it cannot be taken by intendment. It was doubted in the case of United States v. Davis, 2 Sumner, 482, whether a place at Raiatea, one of the Society Islands, within a coral reef, covered at high and uncovered at low water, was to be deemed the high seas, so as to confer criminal jurisdiction; for a place may at high water be the high seas, and at low water strictly part of the land, as in case of the seashore, according to the doctrine in Constable's case, 5 Co. 106 a. It was expressly held, in the cases of United States v. Ross, 1 Gallison, 624, and in the United States v. Pirates, 5 Wheaton, 184, that a vessel in an open roadstead, within a marine league of the shore, was upon the high seas, under the 8th section of the act of 30th April, 1790, c. 9, sec. 8, so as to give jurisdiction to the courts of the United States. The high seas in that act mean any waters on the sea-coast, which are without the boundaries of low-water mark. And yet again it was held, in the case of the United States v. Robinson, 4 Mason, 307, that an offence committed in a bay entirely land-locked and enclosed by reefs, was not committed on the high seas. The cases are so conflicting, that it seems impossible to arrive at any definite conclusions on the subject.

It seems to be conceded that the admiralty has an established jurisdiction to award damages for torts, or personal wrongs done on the high seas; and that waters within the ebb and flow of the tide, and which lie within the body of a county, are not, in England, within the admiralty jurisdiction; Coke's 4th Inst. 134; 2 Brown's Civ. and Adm. Law, 111; The Nicolaas Witzen, 3 Hagg. Adm. 369; but that in the United States all tide waters, though within the body of a county, are within the admiralty jurisdiction, and torts committed on such waters are cognizable in the admiralty. See Curtis's Treatise on Seamen, p. 362, and the cases there cited. Nay, if the tort be one continued act, though commencing on land and be consummated on tide water, the admiralty has cognizance of it. Plumer v. Webb, 4 Mason, 383, 384; Steele v. Thatcher, Ware Adm. 91. It is admitted, however, that the courts of common law have in this country concurrent jurisdiction over mariners' contracts, and in cases of tort committed upon the high seas. But as these courts are not competent to give a remedy in rem, the remedy is a personal suit.

In the case of The Steamboat Black Hawk, decided in the District Court for the Northern District of New York, (Conkling's Treatise, 2d edit. p. 350, note,) it was held, that seizures made on the St. Lawrence, far above tide waters, as at Ogdensburgh and on Lake Ontario, for infractions of the navigation laws of the United States, were cases of admiralty jurisdiction. The learned judge put the decision on the ground of uniform practice for half a century duly acquiesced in; but he admitted with great candor, that the jurisdiction on the admiralty side of the court might reasonably be questioned, though it was not for that court, under the extraordinary sanction given to the practice, to renounce it. In Wyman v. Hurlburt, 12 Ohio, 81, the court waived the question whether the great lakes, above the ebb and flow of tides, were subject to the jurisdiction of the courts of admiralty. But now, by act of Congress of February 26th, 1845, c. 20, the district courts have the same jurisdiction in matters of contract and tort, concerning steamboats and other vessels of 20 tons bur

and with great ability and research, by the Circuit Court of the United States for Massachusetts, in the insurance case of De Lovio v. Boit. (c) It was maintained, that in very early periods the admiralty jurisdiction, in civil cases, extended to all maritime causes and contracts, and in criminal cases to all torts and offences, as well in ports and havens within the ebb and flow of the tide, as upon the high seas; and that the English admiralty was formed upon the same common model, and was coextensive in point of jurisdiction with the maritime courts of the other commercial powers of Europe. It was shown, by an exposition of the

den and upwards, enrolled and licensed for the coasting trade, and employed in business of commerce and navigation between ports and places in different states and territories, upon the lakes and navigable waters2 connecting said lakes, as is now exercised and possessed by the said courts in cases of like steamboats and other vessels employed in navigation and commerce upon the high seas, or tide waters within the admiralty and maritime jurisdiction of the United States. The maritime law of the United States, as far as the same is or may be applicable thereto, shall constitute the rule of decision in such suits, in the same manner and to the same extent, and with the same equities as it now does in cases of admiralty and maritime jurisdiction, with saving of the right of trial by jury, and of a concurrent remedy at common law in competent cases.3

(c) 2 Gallison, 398; The J. D. Morton, 2 Ohio State, 26.

2 The words "navigable waters may include an artificial communication by canal. The Young America, 1 Newberry Adm. 101.

3 The jurisdiction of the District Court in cases of admiralty does not rest on the statute of 1845, but upon the Constitution of the United States, and is not limited to tide waters, but embraces the lakes and navigable rivers, through which commerce is carried on between different states or with a foreign nation. The Backus, 1 Newberry Adm. 1.

And in the case of the Jenny Lind, 1 Newberry Adm. 443, the court say, the admiralty jurisdiction has been clearly established upon the whole length and breadth of the Mississippi River, and all other public rivers as far as they are navigable from the ocean for vessels of ten tons burden. And in the case of Jackson v. Steamboat Magnolia, (20 How. U. S. 296,) the principles of these cases were fully affirmed, and the Supreme Court held that the U. S. District Court for the Middle District of Alabama had jurisdiction over a case of collison occurring on the Alabama River, within the body of a county and above tide water, and although the Alabama River flows through the State of Alabama and is not a boundary between co-terminous states. Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice Campbell dissented. Mr. Justice Catron declared that he "felt constrained solemnly to protest against the opinion of the court and the doctrine assumed in its support," as a violation of the constitution, and Mr. Justice Catron and Mr. Justice Campbell also insisted that the claim of the court was unconstitutional, and said they considered, "that the decision carries the jurisdiction to an incalculable extent beyond any other and all others that have heretofore been pronounced, and that it must create a revolution in the admiralty administration of the courts of the United States."

ancient cases, that Lord Coke was mistaken, in his attempt to confine the ancient jurisdiction of the admiralty to the high

seas, and to exclude it from the narrow tide waters, and *368 * from ports and havens. The court agreed with the admiralty civilians, that the statutes of 13 R. II. and 15 R. II. and 2 H. IV., did not curtail this ancient and original jurisdiction of the admiralty, and that, consistently with those statutes, the admiralty might exercise jurisdiction over torts and injuries upon the high seas, and in ports within the ebb and flow of the tide, and in great streams below the first bridges; and also over all maritime contracts, as well as over matters of prize and its incidents. It appeared, from an historical review of the progress of the controversy for jurisdiction, which lasted for two centuries, between the admiralty and the courts of common law, that the latter, by a silent and steady march, gained ground, and extended their limits, until they acquired concurrent jurisdiction over all maritime causes, except prize causes, within the cognizance of the admiralty. The common-law doctrine was, that the sea, ex vi termini, was without the body of any county; but that all ports and havens, and all navigable tide waters, where one might see from one land to the other what was doing, were within the body of the county, and under the exclusive jurisdiction of the common-law courts. On the sea-shore or coast, high and low water mark determine what was parcel of the sea, and what was the line of division between the admiralty and the courts of law; and it was held that it ought to be so considered, by parity of reasoning, where the tide ebbs and flows, in ports and havens; and that the admiralty jurisdiction extends to all tide waters in ports and havens, and rivers below the first bridges. It was admitted, however, that the common law originally had jurisdiction on the high seas, concurrent with the admiralty; and that in cases manifestly within the admiralty jurisdiction, both civil and criminal, the common law now claimed concurrent jurisdiction.

The result of the examination in that case was, that the jurisdiction of the admiralty, until the statutes of Richard II., extended to all maritime contracts, and to all torts, injuries, and of*369 fences on the high seas, and in ports and havens, as far as the ebb and flow of the tide; that the common law interpretation of those statutes abridged this jurisdiction to things wholly and exclusively done upon the sea, but that the interpre