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LECTURE XVII.

OF THE DISTRICT AND TERRITORIAL COURTS OF THE UNITED STATES.

THE district courts act as courts of common law, and also as courts of admiralty.

A distinction is made in England between the instance and the prize court of admiralty. The former is the ordinary admiralty court, but the latter is a special and extraordinary jurisdiction; and although it be exercised by the same person, it is in no way connected with the former, either in its origin, its mode of proceeding, or the principles which govern it. To constitute the prize court, or to call it into action in time of war, a special commission issues, and the court proceeds summarily, and is governed by general principles of policy and the law of nations. This was the doctrine of the English Court of King's Bench, as declared by Lord Mansfield in Lindo v. Rodney; (a) and though some parts of his learned and elaborate opinion in that case do not appear to be very clear and precise on the point concerning the difference in the foundation of the powers of the instance and of the prize court of admiralty, yet I should infer from it that the judge of the English admiralty requires a special commission distinct from his ordinary commission, to enable him, in time of war, to assume the jurisdiction of prize. The practice continues to this day of issuing a special commission, on the breaking out of hostilities, to the commissioners for executing the office of lord high admiral, giving them jurisdiction in prize cases. (b)

{354} The division of the court of admiralty into two courts is said not to have been generally known to the common lawyers of England before the case of Lindo v. Rodney; and yet it appears, from the research made in that case, that the prize jurisdiction was established from the earliest periods of the English judicial history. The instance court is the ordinary and

(a) Doug. 613, note.

(b) Ex parte Lynch, 1 Mad. 16.

appropriate court of admiralty, and takes cognizance of the general subjects of admiralty jurisdiction, and it proceeds according to the civil and maritime law. The prize court has exclusive cognizance of matters of prize and matters incidental thereto, and it proceeds to hear and determine according to the course of the admiralty and the law of nations. The distinction between these two courts, or rather between these two departments of the same court, is kept up throughout all the proceedings; and the appeals from the decrees of these two jurisdictions are distinct, and made to separate tribunals. The appeal from the instance court lies to delegates, but from the prize court it lies to the lords commissioners of appeals in prize causes, and who are appointed for that special purpose.

Such is the distinction in England between the instance and the prize court of admiralty; and in the case of Ex parte Lynch, (a) it was held that the jurisdiction of the admiralty as a prize court did not cease with the war, but extended to all the incidents of prize, and to an indefinite period after the war. It remains to see how far that distinction is known or preserved in the jurisdiction of our district courts.

It is said by a judge who must have been well acquainted with this subject (for he was registrar of a colonial court of admiralty before our Revolution), that this distinction between the instance and the prize court was not known to our admiralty proceedings under the {355} colony administrations. (a) In the case of Jennings v. Carson, (b) the District Court of Pennsylvania, in 1792, decided that prize jurisdiction was involved in the general delegation of admiralty and maritime powers, and that Congress, by the Judiciary Act of 1789, meant to convey to the district courts all the powers appertaining to admiralty and maritime jurisdiction, including that of prize. Prize jurisdiction was inherent in a court of admiralty, though it was of course a dormant power until called into activity by the occurrence of war.

But notwithstanding this early decision in favor of the plenary jurisdiction of the district courts as courts of admiralty, there was great doubt entertained in this country, about the year 1793-whether the district courts had jurisdiction under the act of Con-

(a) 1 Mad. 15.

(a) 1 Pet. Adm. 5, 6.

(b) Ib. 1.

gress of 1789, as prize courts. The District Court of Maryland decided against the jurisdiction, and that decree was affirmed on appeal to the Circuit Court, on the ground that a prize cause was not a civil cause of admiralty jurisdiction, but rested on the jus belli, and that there was no prize court in existence in the United States. The same question was carried up to the Supreme Court of the United States in February, 1794, in the case of Glass v. The Sloop Betsey, (c) and was ably discussed. The Supreme Court put an end at once to all these difficulties about jurisdiction, by declaring that the district courts of the United States possessed all the powers of courts of admiralty, whether considered as instance or as prize courts.

In the case of the Emulous, (d) the Circuit Court in Massachusetts was inclined to think that the admiralty, from time immemorial, had an inherent jurisdiction in prize, because, if we examine the most venerable relics of ancient maritime jurisprudence, we shall find the admiralty in possession of prize jurisdiction, independent of any known special commission. It seems to have always constituted an ordinary, and not an extraordinary, branch of the admiralty powers; {356} and it is to be observed that Lord Mansfield leaves the point uncertain whether the prize and the instance jurisdictions were coeval in antiquity, or whether the former was constituted by special commission. Be that as it may, the equal jurisdiction of the admiralty in this country, as an instance and as a prize court, is now definitely settled; and if the prize branch of the jurisdiction of the admiralty be not known in time of peace, it is merely because its powers lie dormant, from the want of business to call them into action.1

There is no pretence of claim, on the parts of courts of common law, to any share in the prize jurisdiction, of the courts of admiralty. It is necessarily and completely exclusive; and we will first take a view of the jurisdiction and powers of the district courts in prize cases, and then of their ordinary admiralty jurisdiction. As prize questions are applicable to a state of war, and

(c) 3 Dallas, 6; Penhallow v. Doane, 3 Dallas, 54, S. P. See also the act of Congress of June 26, 1812, sec. 6.

(d) 1 Gall. 563.

1 See cases cited 357, n. 1. [See United States v. Ames, 99 U. S. 35; The City of Panama, 101 U. S. 453, 457.]

are governed chiefly by the rules of the law of nations, and the usages and practices of the maritime powers, I do not propose to enlarge on that subject. My object will be to ascertain the exact jurisdiction of the district court, in all its various powers and complicated character. I shall consider, (1.) Its character as a prize court. (2.) As a court of criminal jurisdiction in admiralty. (3.) The division line between the admiralty and the courts of common law. (4.) Its powers as an instance court of admiralty. (5.) Its jurisdiction as a court of common law, and clothed, also, with special powers.

1. Of the District Court as a Prize Court. — The ordinary prize jurisdiction of the admiralty extends to all captures in war made on the high seas. (x) I know of no other definition of prize goods, said Sir William Scott, in the case of the Two Friends, (a) than that they are goods {357} taken on the high seas jure belli, out of the hands of the enemy. The prize jurisdiction also extends to captures in foreign ports and harbors, and to captures made on land by naval forces, and upon surrenders to naval forces, either solely, or by joint operation with land forces. (a) It extends to captures made in rivers, ports, and harbors of the captor's own country. But as to plunder or booty in a mere continental land war, without the presence or intervention of any ships or their crews, Lord Mansfield admitted, in Lindo v. Rodney, there was no case or authority, or principle, to enable him to bring it within the cognizance of a prize court. (b) The prize court extends, also, to all ransom

(a) 1 C. Rob. 271. (a) Lindo v. Rodney, Doug. 613, note.

(b) In the case of Alexander v. The Duke of Wellington, 2 Russ. & My. 35, Lord Brougham said, that military prize rests upon the same principles of law as prize at sea, though in general no statute passes with respect to it.

(x) A state of war must exist to sustain a libel in prize. The City of Mexico, 28 Fed. Rep. 148. Although an admiralty court does not usually render a decree in personam, on a libel in rem, yet if a clear right to recover against the person is shown, whether the libel in rem, is sustainable or not, the libellant after decree may introduce the proper allegations in personam and proceed thereon. The Zodiac, 5 Fed. Rep. 220; see La Normandie, 58

id. 427; Heney v. The Josie, 59 id. 782. The general rules of pleading in admiralty suits in rem apply to a suit in rem for a forfeiture, founded upon a violation of the internal revenue laws, and brought by the United States, after a seizure of the property on land. Coffey v. United States, 116 U. S. 427; 117 U. S. 233.

The "Prize Courts Act, 1894" (57 & 58 Vict. ch. 39) provides as to Prize Courts in the British possessions.

bills upon captures at sea, and to money received as a ransom or commutation, on a capitulation to naval forces alone, or jointly with land forces. (c) The federal courts have asserted for the prize courts in this country a jurisdiction equally as ample and extensive as any claimed for them in England.1 In the case of

(c) Ships taken at Genoa, 4 C. Rob. 388; Anthon v. Fisher, Doug. 649, note; Maisonnaire v. Keating, 2 Gall. 325.

1Prize Jurisdiction. — United States v. Weed, 5 Wall. 62, 69; The Amy Warwick, 2 Sprague, 123; The Hiawatha, Blatchf. Pr. 1; 282 Bales of Cotton, ib. 302; The Anna, ib. 337; The Prize Cases, 2 Black, 635; Jecker v. Montgomery, 13 How. 498. Bee the act of June 30, 1864, c. 174, 13 U. S. St. at L. 306, which does not exhaust the subject, however. There are cases outside of it. The Siren, 1 Lowell, 280. The exclusive jurisdiction in prize of the admiralty was asserted as to captures made on the Mississippi River during the rebellion. United States v. 269½ Bales of Cotton, 1 Woolw. 236; 25 Law Rep. 451. But Congress enacted (act of July 2, 1864, c. 225, § 7, 13 U. S. St. at L. 377) that no property seized or taken upon any of the inland waters of the United States by the naval forces thereof should be regarded as maritime prize, but that it should be delivered to the proper officers of the courts, or as provided in that act and the act approved March 12, 1863, 12 U. S. St. at L. 820, as to abandoned and captured property. See the Cotton Plant, 10 Wall. 577.

Private property captured on land by the naval forces has been held not to be maritime prize, subject to the prize jurisdiction of the United States courts, though a proper subject of capture. Mrs. Alexander's Cotton, 2 Wall. 404; ante, 91, n. 1; United States v. Weed, 5 Wall. 62, 71; United States v. 269½ Bales of Cotton, supra; [United States v. Winchester, 99 U. S. 372.] But the first case was put partly on the act of July 17, 1862; and

see 680 Pieces of Merchandise, 2 Sprague, 233; 103 Casks of Rice, Blatchf. Pr. 211; 282 Bags of Cotton, ib. 302, which were decided the other way, on their peculiar circumstances.

It has been said that captures by the army and navy jointly are not distributable in the admiralty apart from statute; and in this country they accrue exclusively to the benefit of the United States. The Siren, 1 Lowell, 280, 283; 13 Wall. 389; [Porter v. United States, 106 U. S. 607.]

The English court of admiralty has now jurisdiction of booty and property captured on land by land forces exclusively by St. 3 & 4 Vict. c. 65. Banda & Kirwee Booty, L. R. 1 Ad. & Ec. 109, 129. [See Re Banda & Kirwee Booty, 4 L. R. Ad. 436.] See also as to the jurisdiction of the United States court under the Confiscation Act of August 6, 1861, ante, 302, n. 1. Union Insurance Co. v. United States, 6 Wall. 759; Armstrong's Foundry, ib. 766. See more especially the act of July 17, 1862, c. 195, § 7, 12 U. S. St. at L. 591, which gave a proceeding in rem in the district courts, conformable to those in admiralty or revenue cases, against the property of rebels during the late war. In proceedings relating to a seizure on land, when the case is of common-law jurisdiction, it must be tried by jury at the demand of either party. Union Ins. Co. v. United States, 6 Wall. 759; Armstrong's Foundry, ib. 766; Miller v. United States, 11 Wall. 268, 304; Morris's Cotton, 8 Wall. 507; Confiscation

the Emulous, (d) though the court gave no opinion as to the right of the admiralty to take cognizance of mere captures made on the land, exclusively by land forces, yet it was declared to be very clear, that its jurisdiction was not confined to captures at sea. It took cognizance of all captures in creeks, havens, and rivers, and also of all captures made on land, where the same had been made by a naval force, or by co-operation with a naval force; and this exercise of jurisdiction was settled by the most solemn adjudications. A seizure may therefore be made in port, in our own country, as prize, if made while the property was water-borne. Had it been landed, and remained on land, it would have deserved consideration; and no opinion was given, whether it could have been proceeded against as prize, under the admiralty jurisdiction, or whether, {358} if liable to seizure and condemnation in our courts, the remedy ought not to have been pursued by a process applicable to municipal confiscations.

It is understood in England that the admiralty, merely by its own inherent powers, never exercises jurisdiction as to captures or seizures, as prize, made on shore, without the co-operation of naval forces. (x) In the case of the Ooster Eems, cited by Sir William Scott, in the case of the Two Friends, (a) and decided by the highest authority, that of the lords commissioners of appeal, in 1784, it was held, that goods taken on shore as prize, where there had been no act of capture on the high seas, were not to be considered as prize, and that the prize courts had no jurisdiction in such a case. But it is admitted, that if the jurisdiction has once attached, and the goods have been taken at sea, they may be followed on shore by the process of the prize court, and its jurisdiction over them still continues. In this respect, the prize court

(d) 1 Gall. 563. (a) 1 C. Rob. 271.

Cases, 7 Wall. 454, 462; Ex parte Graham, 10 Wall. 541.

A nice question as to whether cotton picked up at sea was prize or derelict was

decided in favor of the former view in Seventy-eight Bales of Cotton, 1 Lowell, 11.

(x) A capture made by the army, or by the army and navy operating together, inures exclusively to the benefit of the government, and is not the subject of

prize. The Nuestra Seńora de Regla, 108 U. S. 92; see United States v. Winchester, 99 U. S. 372; United States v. Steever, 113 U. S. 747.

seems more extensive, and to hold a firmer jurisdiction, than the instance court; for, as to cases of wreck and derelict, if the goods are once on shore, or landed, the cognizance of the common law attaches. (b)1

Though the prize be unwarrantably carried into a foreign port, and there delivered by the captors upon security, the prize court does not lose its jurisdiction over the capture, and the questions incident to it. (c) So, if the prize be lost at sea, the court may, notwithstanding, proceed to adjudication, and at the instance of the captors or the claimants. (d) It has jurisdiction, likewise, though the prize be actually lying within a foreign neutral territory. This is the settled law of the prize jurisdiction, both in England and in this country. The principle is, that the possession of the captor, though in a neutral country, is considered to be the possession {359} of his sovereign, and sub potestate curię. (a) But it is admitted, that if possession of the thing seized be actually as well as constructively lost, as by recapture, escape, or a voluntary discharge of the captured vessel, the jurisdiction of the prize court over the subject is lost. Though captured property be unjustifiably or illegally converted by the captors, the jurisdiction of the prize court over the case continues; but it rests in the sound discretion of the court, whether it will interfere in favor of the captors in such cases; and it is equally discretionary in all cases where the disposition of the captured vessel and crew has not been according to duty. (b) The prize court may always proceed in rem, whenever the prize, or the proceeds of the prize, can be traced to the hands of any person whatever; and this it may do, notwithstanding any stipulation in the nature of bail had been taken for the property. And it is a principle perfectly well settled, and constantly conceded and applied, that prize courts have exclusive jurisdiction, and an enlarged discretion, as to the allowance of freight, damages, expenses, and costs, in all cases of captures, and as to all torts, and personal injuries, and ill treatments, and

(b) The Two Friends, 1 C. Rob. 271. (c) The Peacock, 4 C. Rob. 185. (d) The Susannah, 6 C. Rob. 48. (a) Vide supra, 104. (b) The Falcon, 6 C. Rob. 194; The Pomona, 1 Dods. 25; L'Eole, 6 C. Rob. 220} La Dame Cecile, 6 C. Rob. 257; The Arabella and Madeira, 2 Gall. 368.

1 See The Nassau, 4 Wall. 634; also, ante, 357, n. 1.

abuse of power, connected with captures jure belli; and the courts will frequently award large and liberal damages in those cases. (c)1

The prize courts may apply confiscation by way of penalty, for fraud and misconduct, in respect to property captured

{360} as prize, and claimed by citizens or neutrals. (a) They may decree a forfeiture of the rights of prize against captors guilty of gross irregularity or fraud, or any criminal conduct; and, in such cases, the property is condemned to the government generally. (b)

2. Criminal Jurisdiction of the Admiralty. — The ordinary admiralty and maritime jurisdiction, exclusive of prize cases, embraces all civil and criminal cases of a maritime nature; and though there does not seem to be any difficulty or doubt as to the proper jurisdiction of the prize courts, there is a great deal of unsettled discussion respecting the civil and criminal jurisdiction of the District Court as an instance court, and possessing, under the Constitution and Judiciary Act of 1789, admiralty and maritime jurisdiction.

The act of Congress (c) gives to the district courts, exclusive of the state courts, and concurrently with the circuit courts, cognizance of all crimes and offences cognizable under the authority of the United States, and committed within their districts, or upon the high seas, where only a moderate corporal punishment,

(c) Le Caux v. Eden, Doug. 594; The Amiable Nancy, 1 Paine, 111; Chamberlain v. Chandler, 3 Mason, 243, 244. Probable cause of seizure is a sufficient excuse in the ease of captures jure belli, and as to marine torts generally, or the exercise of belligerent rights to a limited extent under statute provisions. The Palmyra, 12 Wheaton, 1.

(a) The Johanna Tholen, 6 C. Rob. 72; Oswell v. Vigne, 15 East, 70.

(b) Case of the George, 1 Wheaton, 408; 2 Wheaton, 278, S. C. [A prize court determines only the question of prize or no prize. It determines nothing as to the title. Cushing v. Laird, 107 U. S. 69. — B.]

(c) Act of September 24, 1789, sec. 9 and 11.

1 The Jane Campbell, Blatchf. Pr. 101; and see cases cited ante, 156, n. 2. The District Court, moreover, may hear and determine all questions respecting claims arising after the capture of the vessel. Thus, where a vessel which had been captured by a United States war steamer and which was in charge of a prize crew,

wrongfully sunk another, and was afterwards libelled by the government, condemned and sold, it was held that the owners of the sunken vessel and cargo should be paid out of the proceeds before they were distributed. The Siren, 7 Wall. 152. See The Davis, 10 Wall. 15; Case v Terrell, 11 Wall. 199, 201.

or fine or imprisonment, is to be inflicted. This is the ground of the criminal jurisdiction of the district courts; and it is given to them as district courts; and as it includes the minor crimes and offences committed on the high seas, and cognizable in the courts of admiralty under the English law, the district courts may be considered as exercising the criminal jurisdiction of a court of admiralty in those cases. The Constitution of the United States declares, that the judicial power of the Union shall extend to all cases of admiralty and maritime jurisdiction; and it has been supposed (d) that the federal courts might, without {361} any statute, and under this general delegation of admiralty powers, have exercised criminal jurisdiction over maritime crimes and offences. But the courts of the United States have been reluctant to assume the exercise of any criminal jurisdiction, in admiralty cases, which was not specially conferred by an act of Congress. In the case of The United States v. M'Gill,(a) the defendant was indicted and tried in the Circuit Court in Philadelphia, for murder committed on the high seas, and the jurisdiction of the court was much discussed. One of the judges observed, that he had often decided that the federal courts had a common-law jurisdiction in criminal cases; but he considered that the crime charged (a mortal stroke having been given on the high seas, and the death in consequence of it happening on land) was not a case of admiralty and maritime jurisdiction within the meaning of the Constitution, or of the English admiralty law; and the prisoner, on account of this defect of jurisdiction, was acquitted. The other judge of the court gave no opinion, whether that case was one of admiralty and maritime jurisdiction, upon the general principles of the admiralty and maritime law; and he confined himself to the 8th section of the penal act of Congress of April 30, 1790, c. 9; and the case charged was not, by that act, within the jurisdiction of the Circuit Court.

Afterwards, in the case of The United States v. Bevans, (b) the Supreme Court, on a case certified from the Massachusetts circuit, decided that, even admitting that the United States had exclusive jurisdiction of all cases of admiralty and maritime jurisdiction, and admitting that a murder committed on the

(d) Du Ponceau on Jurisdiction, 59-61.

(a) 4 Dallas, 426.

(b) 3 Wheaton, 336.

waters of a state where the tide ebbs and flows was a case of admiralty and maritime jurisdiction, yet Congress had not, by the 8th section of the act of 1790, c. 9, "for the punishment of certain crimes against the United States," conferred on the courts of the United States jurisdiction over {362} such murder. The act confined the federal jurisdiction to murder and other crimes and offences committed on the high seas, or in any river, harbor, basin, or bay, out of the jurisdiction of any particular state; and the murder in question was committed on board of a ship of war of the United States in Boston harbor, and within the jurisdiction of Massachusetts. There was no doubt of the competency of the powers of Congress to confer such a jurisdiction in the case of a crime committed on board of a ship of war of the United States, wherever the ship might be; but no such power had, to that extent, been as yet exercised by Congress; and it must have followed of course, in that case, that the state courts had jurisdiction of the crime at common law, for it was committed within the territory of the state. (a) It was admitted to be a clear point, that the state courts had cognizance of crimes and offences committed upon tide waters, in the bays and harbors within their respective territorial jurisdictions. And in the case of United States v. Wiltberger, (b) it was decided that the courts of the United States had no jurisdiction of the crime of manslaughter committed by the master upon one of the seamen, on board a merchant vessel of the United States, lying at anchor in the river Tigris, within the empire of China, because the act of Congress of the 30th of April, 1790, c. 9, sec. 12, did not reach such a case, and was confined to the crime committed on the high seas. Upon the principle of that decision, the offender could not be judicially punished, except by the Chinese government; and it

(a) In official opinions communicated to the executive government in 1812 and 1814, it was considered to be a clear point, that for grave crimes committed within the jurisdictional limits of the United States, on board national vessels of war, the trial and punishment did not belong to naval courts-martial, but to the ordinary courts of law. Op. Att-Gen. i. 114, 120. But the act of Congress of April 23, 1800, c. 33, "for the better government of the navy of the United States," art. 21, declared that the crime of murder, when committed by any officer, seaman, or marine, belonging to any public ship or vessel of the United States, without the territorial jurisdiction of the same, might be punished with death, by the sentence of a court-martial.

(b) 5 Wheaton, 76. See also the case of the United States v. Davis, 2 Sumner, 482.

was said, upon the argument of the case, that China disclaimed the jurisdiction. " The law was defective upon this point, and a remedy was provided by the act of Congress of 3d of March, 1825, c. 67, sec. 5, which declared, that if any offence shall be committed on board of any vessel belonging to a citizen of the United States, while lying in a foreign port or place, by any one of the crew or a passenger, on any other person belonging to the ship, or on any other passenger, the offence shall be {363} cognizable in the circuit courts of the United States, equally as if it had been committed on board of such vessel on the high seas, provided that if the offender shall be tried, and acquitted or convicted in the foreign state, he shall not be subject to another trial here. The act provided also for the punishment of many other crimes against the United States, committed upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States. But the crimes in any river, bay, &c., to be cognizable, must be committed out of the jurisdiction of any particular state, except it be conspiracies to defraud insurers; and it further provided, that the act was not to deprive the state courts of jurisdiction over the same offences. As the state courts have jurisdiction of offences committed within arms of the sea, creeks, havens, basins, and bays, within the ebb and flow of the tide, and within the body of a county, the jurisdiction of the circuit courts of the United States was not extended by the statute to those cases. (a)l (x)

(a) United States v. Grush, 5 Mason, 290. In the case of the United States v. Davis & Hanlon, in the Circuit Court of the United States for the District of New York, and of the United States v. Jackson (2 N. Y. Legal Observer, 3, 35), it was held that the federal courts have no jurisdiction under the act of Congress of April, 1790, of the crime of larceny, committed on board of an American vessel lying in the

1 Complaints against any master, officer, or mariner of any vessel of citizens of the United States, for any offence, not capital or otherwise infamous, against any law of the United States for the protection of persons or property engaged in

commerce or navigation, may be summarily tried by the district judge on the report of the district attorney. Act of June 11, 1864, c. 121, § 2, 13 U. S. St. at L. 124; ante, 304, n. 1.

(x) Under the U. S. Rev. Stats. § 5346, the Federal courts have jurisdiction of an assault with a dangerous weapon committed on the open unenclosed waters of

the great lakes, such waters being "high seas." United States v. Rodgers, 150 U. S. 249, Gray and Brown, J.J. dissenting. This jurisdiction does not, however, ex.

It appears from these cases, that though the general cognizance of all cases of admiralty and maritime jurisdiction, as given by the Constitution, extends equally to the criminal and civil juris-

port of Savannah, in Georgia, nor if committed within the local jurisdiction of any foreign power. It would have been otherwise if committed on board the vessel on the high seas. The acts of Congress of April 30, 1790, c. 9, and of March 3, 1825, c. 67, are not sufficiently precise on the subject of the criminal jurisdiction of the admiralty over crimes committed on the high seas. The 8th, 9th, 10th, 11th, and 12th sections of the act of 1790 provided for the punishment of murder, robbery, and other capital and inferior offences, committed on the high seas "by any person or persons," without confining the provision specifically to American citizens or American vessels; and yet, under that statute, it has been adjudged that robbery, committed by a foreigner on the high seas, on board of a vessel belonging exclusively to subjects of a foreign state, was not piracy within that statute, nor punishable by the courts of the

tend to a crime committed on the Great Lakes within state boundaries, either by virtue of Rev. Stats. § 5346, or the Act of Congress of Sept. 4, 1890 (26 St. at L. 424) which extends the criminal jurisdiction of the U. S. circuit and district courts over the great lakes and their connecting waters. United States v. Peterson, 64 Fed. Rep. 145; see Ex parte Byers, 32 id. 404; United States v. Beyer, 31 id. 35; United States v. Beacham, 29 id. 284; United States v. Rogers, 46 id. 1; In re Garnett, 141 U. S. 1.

The power of Congress to punish for manslaughter on the navigable waters of the United States is founded on the commerce clause of the Constitution, but not necessarily its power to regulate the procedure in admiralty. United States v. Beacham, 29 Fed. Rep. 284; The Tolchester, 42 id. 180. Navigable waters of the United States include rivers and lakes which of themselves, or by uniting with other waters, form a continued highway on which international or interstate commerce may be carried on, but not lakes or rivers wholly within a State and having no navigable outlet into another State or nation. The Daniell Ball, 10 Wall. 557; Miller v. New York, 109 U. S. 385; United States v. Burlington &c. Ferry Co., 21 Fed. Rep. 331.

Both the act and the death must have

occurred upon the high seas to constitute murder there. Ball v. United States, 140 U. S. 118. The limits of Federal jurisdiction being confined to the district, civil process does not run to the outer verge of the three-mile zone of water, at least when this zone of water is not by State or Federal statute made a part of the State or district. The Hungaria, 41 Fed. Rep. 109. But if a U. S. war vessel has seized a vessel under orders of the government within the limits of Alaska, the courts will assume jurisdiction as thus determined by the government's orders. United States v. The Kodiak, 53 Fed. Rep. 126.

The U. S. Rev. Stats. § 5576, as to guano islands is constitutional; it does not assume to extend the admiralty jurisdiction over land, but merely extends the Federal legislation as to offences upon the high seas to like offences upon guano islands appertaining to the United States. Jones v. United States, 137 U. S. 202.

By the Act of Aug. 13, 1888 (25 St. at L. 433) the circuit courts have exclusive cognizance of all crimes cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offences cognizable by them, and in civil actions persons are not to be arrested in one district for trial in another.

diction of the admiralty, as known to the English and maritime law when the Constitution was adopted; yet that without a particular legislative provision in the case, the federal courts do not

United States. United States v. Palmer, 3 Wheaton, 610; and see supra, 186, 187. By the same statute, the punishment of malicious maiming on the high seas is expressly confined to the offence committed in an American public or private vessel. Under the 9th section of the act of Congress of March 3, 1825, to provide more effectually for the punishment of certain crimes, &c., any offence, such as plundering shipwrecked property, whether below or above high-water mark, is punishable as within the jurisdiction of the federal courts. United States v. Coombs, 12 Peters, 72. The 4th, 7th, and 8th sections of the act of 1825 are general as to murder, rape, and other specified crimes, and they apply, according to the terms of them, "to any person or persons," without defining the character of the vessel on board of which the crime may be committed. But the 6th section of the act of 1825, respecting robbery on the high seas, confines the jurisdiction to the offence committed on board of an American vessel, and so does the 22d section, respecting assaults with intent to commit a felony; while, on the other hand, by the 23d section, a conspiracy on the high seas to destroy any vessel with intent to injure the underwriters is made felony, and the section is general, and applies to all persons.

It is difficult to understand exactly what was intended by this diversity of language in different sections, being general in one and specific in another, so far as those various sections have not been construed or defined by judicial decisions. We may safely say, that so far as any crime committed upon the high seas, no matter by whom or where, amounts to piracy within the purview of the law of nations, there can be no doubt of the jurisdiction of the circuit courts of the United States. (See supra, 186, 187.) But where the crime has not attained that "bad eminence," then the jurisdiction can only, upon proper principles, attach to crimes committed by American citizens upon the high seas, or to crimes committed in or upon an American vessel on the high seas. If the American citizen commits the crime on the high seas, on board of a foreign vessel, the personal jurisdiction over the citizen, in that case, if it exist at all, must be concurrent with the jurisdiction of the foreign government to which the vessel belongs, or by whose subjects it is owned. Under the 8th section of the act of April 30, 1790, if an offence be committed on board of a foreign vessel by a citizen of the United States, or on board of a vessel of the United States by a foreigner, or by a citizen or foreigner on board of a piratical vessel, it is cognizable by the courts of the United States. United States v. Holmes, 5 Wheaton, 412. The act of 1825 enlarged the jurisdiction of the federal courts to offences on board of American vessels by any of the American crew, in all places and waters where the tide ebbs and flows. The act of 1835 extended the jurisdiction not only to offences on the high seas, but on any other waters within the admiralty and maritime jurisdiction of the United States. United States v. Lynch, 2 N. Y. Legal Observer, 51; United States v. Roberts, ib. 99. In the case of the United States v. Mackenzie & Gansevoort, in the New York Circuit Court, January 11, 1843, it was declared, that if the Crimes Act of March 3, 1825, c. 276, was to be considered as giving the circuit and.district courts concurrent jurisdiction with courts-martial over offences committed on board ships of war, yet that the proviso in the 11th section showed that the powers of courts-martial were not abrogated or suspended, and that it was doubtful whether the courts of civil jurisdiction were under the necessity of exercising their jurisdiction. The court refused, in that case, to interfere by process, and interrupt the naval court of inquiry

exercise criminal jurisdiction as courts of admiralty over maritime offences. In the case of The United States v. Coolidge, (b) it was insisted that the admiralty was a court of extensive criminal jurisdiction, and that offences of admiralty jurisdiction were exclusively cognizable by the United States; and that a marine tort on the high seas, as, for instance, the forcible rescue of a prize, was punishable by the admiralty, in the absence of positive law, by fine and imprisonment. The {364} decision of the Supreme Court was otherwise; (a) and it seems now to be settled, that the federal courts, as courts of admiralty, are to exercise such criminal jurisdiction as is conferred upon them expressly by acts of Congress, and that they are not to exercise any other. The United States courts have no unwritten criminal code to which resort can be had as a source of jurisdiction. They have none but what is conferred by Congress, and this principle extends as well to admiralty and maritime as to common-law offences. (b) This limitation does not, however, apply to private prosecutions in the District Court, as a court of admiralty or prize court, to recover damages for a marine tort. Such cases are cognizable in the admiralty, by virtue of its general

then sitting upon the case. Afterwards, the same court, on further and more elaborate discussion and consideration, declared that the Circuit Court had no jurisdiction in the case. See supra, 341, n. (a).

The act of Congress of March 3, 1835, c. 40, sec. 1 and 2, punishes revolt and mutiny, or attempts at the same, by any of the crew of any American vessel on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, by fine and imprisonment, according to the nature and aggravation of the offence; and reduces the same from the grade of a capital offence. On the other hand, the act renders the master and other officers of any such vessel, at any such place, indictable, and punishable by fine and imprisonment, if without any justifiable cause, and from malice, hatred, or revenge, they beat, wound, or imprison any of the crew, or inflict any cruel and unusual punishment upon them. See Abbott on Shipping, 5th Am. ed., Boston, 1846, pp. 246 to 253. The substance is given in the notes by the learned editor, of the several acts of Congress relative to crimes and offences committed on the high seas. The principal acts on that subject are those of April 30, 1790, c. 36; 3d March, 1825, c. 276, and March 3, 1835, c. 40. The English law is more penal, and the statute of 11 & 12 Wm. III. c. 7, makes the crime of revolt, or endeavors to create a revolt, or to lay violent hands on his commander, piracy and robbery. Regina v. M'Gregor, 1 Carr. & Kir. 429.

(b) 1 Gall. 488. (a) 1 Wheaton, 415.

(b) United States v. Hudson & Goodwin, 7 Cranch, 32; United States v. Coolidge, 1 Wheaton, 415; United States v. Bevans, 3 id. 336; United States v. Wiltberger, 5 id. 76. The jurisdiction of the Supreme Court is pointed out by the Constitution; but the powers of the inferior courts are regulated by statute, and they have no powers but such as the statute gives them. Smith v. Jackson, 1 Paine, 453.

admiralty jurisdiction, and so it was held in the case of the Amiable Nancy. (c)

The civil jurisdiction of the English admiralty is according to the forms of the civil law, and before a single judge; but the criminal jurisdiction, in which all maritime felonies are tried, is in the court of admiralty sessions, before commissioners of oyer and terminer, being the judge of the court of admiralty, and three or four associates. It has cognizance of all crimes and offences committed at sea, or on the coasts, out of the body of a county; and in that court the proceedings are by indictment and trial by jury, according to the course of the common law. (d)

(c) 3 Wheaton, 546. So it is a well-established principle of the maritime law, that owners are responsible in the admiralty for the torts of their masters, in acts relative to the service of the ship, and within the scope of their employment. [The State Eights, Crabbe, 22;] Abbott on Shipping, pp. 398. 399; Sherwood v. Hall, 3 Sumner, 131. It was held in Chamberlain v. Chandler, 3 Mason, 242, that the admiralty had jurisdiction of personal torts and wrongs committed on a passenger on the high seas, by the master of the ship, whether the torts were by direct force, as trespasses, or were consequential injuries. So, in Plummer v. Webb, 4 Mason, 380, it was held that a father or master might sue in the admiralty for wages earned by maritime service, and for torts committed on the high seas, as in the abduction of a minor or apprentice, per quod servitium amisit. If the tortious act happens in port, but is a continuing injury from sea, or if there be a trespass at sea upon property, and continued upon land, it becomes a maritime tort of admiralty jurisdiction. The courts of admiralty may award consequential damages in cases of marine tort, Betsey Caines, 2 Hagg. Adm. 28; and courts of common law have also jurisdiction, concurrently with the instance court of admiralty, in cases of marine trespass, free from the question of prize, Percival v. Hickey, 18 Johns. 257: Wilson v. Mackenzie, 7 Hill (N. Y.), 95. The admiralty can take jurisdiction of a suit for damages in the nature of a breach of a maritime contract, even though the ship did not enter on the voyage. Abbott on Shipping, pt. 4, c. 4, sec. 2; case of the City of London, in the Adm., Nov. 1839 [1 W. Rob. 88.] See Curtis's Treatise on Seamen, pp. 300, 356. But if a tort be committed by a master on one of the crew on shore, or in a foreign port, in the course of the voyage, it is a case of common-law jurisdiction, and the admiralty cannot draw to it a tort on shore, though it be a gravamen, mixed up with a tort on the high seas. Adams v. Haffards, 20 Pick. 127. The admiralty, says Mr. Justice Story, does not claim any jurisdiction over torts, except maritime torts committed on the high seas, or on waters within the ebb and flow of the tide. Where those waters are within the body of a county, the learned judge would seem to differ from the courts of common law, for they deny the admiralty jurisdiction in the latter case. The objection to the admiralty jurisdiction does not apply in the case of tide waters in foreign countries, where the distinction of counties is unknown. Thomas v. Lane, 2 Sumner, 9, 10.

(d) 4 Blackst. Comm. 269. [In Beg. v. Keyn, 2 Ex. D. 63, it is held that the territorial criminal jurisdiction of England does not extend beyond low-water mark. The whole subject is reviewed at length in several of the opinions delivered. See also Smith Adm. Law & Practice (2d ed.). Stat. 41 & 42 Vict. c. 73, provides that the jurisdiction of the admiral shall extend to one marine league from the shore. — B.]

The criminal jurisdiction of the English admiralty received its present modification by the act of 28 Henry VIII. c. 15; but it had a very extensive criminal jurisdiction, coeval with the first

existence of the court. It proceeded by indictment, and {365} petit jury, before, and independent of, the statute of

Henry VIII.; and all criminal offences cognizable by the admiralty, and not otherwise provided for by positive law, are punishable by fine and imprisonment. (a) The better opinion, however, is, that the ancient common law or primitive criminal jurisdiction of the English admiralty has become obsolete, and has not been in exercise for the last one hundred years; and that no offence of a criminal nature can be tried there, which does not fall within the jurisdiction specially conferred by the statute of Henry VIII. (b) There is, therefore, a very strong precedent for the doctrine of the Supreme Court of the United States, which refuses to the federal courts any criminal jurisdiction in admiralty cases, not derived from statute. 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.

3. Limits of the Admiralty Jurisdiction. — 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 concurrently {366} 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

(a) 4 C. Rob. 74, note.

(b) 2 Bro. Civ. and Adm. Law, Appendix, No. 3; Opinion of Law Officers of the Crown, ib.

(c) 4 Inst. 135. (d) 2 Hale, P. C. c. 3.

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 at Westminster, on a reference 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 {367} the case of 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. (x) The high seas mean the waters of the

(a) 1 Blackst. Comm. 112; Constable's Case, 5 Co. 106, 107; Finch's L. 75; Barber v. Wharton, 2 Lord Raym. 1452; 2 East, P. C. 803; 4 Blackst. 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 laud is left dry. The Pauline, 2 C. Rob. 358.

(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; Bacon's Abr. tit. Adm. A.; United States v. Grush, 5 Mason, 290.

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

(x) The jurisdiction of the English Admiralty extends over British vessels, not only when sailing on the high seas, but also in foreign rivers below bridges, where great ships go, and within the ebb and

flow of the tide. The Queen v, Anderson, L. R. 1 C. C. 161; The Queen v. Carr, 10 Q. B. D. 76. The English admiralty jurisdiction does not include a claim for injuries received by a seaman on an English

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 terrę, or narrow headlands and 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) Hale, Hist. P. C. i. 424; ib. ii. 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 7, 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 Hew London, and 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 terrę. The Schooner Harriet, 1 Story, 259. In the 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 Santwood 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.

In Thomas v. Lane, 2 Sumner, 1, in the case of a libel for a maritime tort, it 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 the case of the sea-shore, according to the doctrine in Constable's Case, 5 Co. 106 a. It was

vessel within the body of a county of England. See The Egyptian Monarch, 36 Fed. Rep. 773. But under the English statutes the Admiralty has jurisdiction of a claim for collision in the Great North Holland Canal, which is foreign inland

water: The Diana, Lush. 539; and of a collision in a dock connected with the Thames by channels provided with gates and locks. The Queen v. Judge of City of London Court, 8 Q. B. D. 609

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

expressly held, in the cases of United States v. Ross, 1 Gall. 624, and in United States v. Pirates, 5 Wheaton, 184, that a vessel lying 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 landlocked 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. Plummer v. Webb, 4 Mason, 383, 384; Steele v. Thatcher, Ware, 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 ed. 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 the tides, were subject to the jurisdiction of the courts of admiralty. But now, by act of Congress of February 26, 1845, c. 20, the district courts have the same jurisdiction in matters of contract and tort, concerning steamboats and other vessels of twenty tons burden 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 waters 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. [Post, 369, n. 1.]

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 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 reason, 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 beneath the first bridges. It was admitted,

(c) 2 Gall. 398.

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 offences on the high seas, and in ports and {369} 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 interpretation was indefensible upon principle, and the decisions founded upon it inconsistent; that the admiralty interpretation of those statutes did not abridge any of its ancient jurisdiction, and that interpretation was consistent with the language and intent of the statutes, and analogous reasoning, and public convenience. It was considered that the decisions at common law on this subject were not entitled to outweigh the decisions of the great civilians of the admiralty. The vice-admiralty courts in this country, under the colonial governments, exercised a most ample jurisdiction, to the extent now claimed, over all maritime contracts, and over torts and injuries, as well in ports as upon the high seas; and the Constitution of the United States, when it conferred not only admiralty but maritime jurisdiction, added that word ex industria, to remove every latent doubt. This large and liberal construction of the admiralty powers of the district courts, and their extension to all maritime contracts, torts, (x) and

(x) Torts committed on the high seas are within the jurisdiction of the admiralty without regard to the nationality of the vessels or of the parties. The Noddleburn, 28 Fed. Rep. 855; 30 id. 142; United States v. Lewis, 36 id. 449; Bernhard v. Creene, 3 Sawyer, 230; The Mecca, [1895] P. 95. As to the jurisdiction of the district courts over the navigable waters of Alaska, see In re Cooper, 143 U. S. 472; Kie v. United States, 27 Fed. Rep. 351. As to jury trials, see The Empire, 19 Fed. Rep. 558; The Erie Belle, 20 id. 63; The J. W. French, 13 id. 916. Apart from statute or treaty the

district court has a discretion to accept or decline jurisdiction of an admiralty suit for a maritime tort committed at sea, when brought between foreigners or against a foreign vessel. The Noddleburn, 30 Fed. Rep. 142; Neptune Steam Nav. Co. v. Sullivan Timber Co., 37 id. 159; Chubb v. Hamburg-Am. Packet Co., 39 id. 431; The City of Carlisle, id. 807; Camille v. Couch, 40 id. 176; Tracey v. The Walter D. Wallet, 66 id. 1011. If jurisdiction is taken, the law to be applied in such cases is the general maritime law as administered in the country in which the suit is brought. The Belgenland, 114 U.

injuries, was recommended by the general equity and simplicity of admiralty proceedings, and the policy and wisdom of that code

S. 355. A maritime lien may be enforced against the vessel of a foreign corporation for necessary repairs and supplies furnished in the port of enrolment. The Havana, 64 Fed. Rep. 496.

The following are maritime torts: Negligence of the owner resulting in a boiler-explosion causing injury to a seaman, Grimsley v. Hankins, 46 Fed. Rep. 400; negligence of the master causing personal injury to a seaman: The A. Heaton, 43 id. 592; The H. S. Pickands, 42 id. 239; see The Egyptian Monarch, 36 id. 773.

The wrongful arrest of deserting seamen at the master's request is not a maritime tort. Bain v. Sandusky Trans. Co., 60 Fed. Rep. 912.

Contributory negligence on the part of one employed in loading a vessel and injured by its negligence does not necessarily preclude a recovery, but the damages may be divided. The Max Morris, 137 U. S. 1, 12; see 32 Cent. L. J. 138. Loss of life is not the subject of an admiralty suit in rem, when the local law creates no lien. The Corsair, 145 U. S. 335; The Alaska, 130 U. S. 201; 33 Fed. Rep. 107; The Harrisburg, 119 U. S. 199; see Jones v. The St. Nicholas, 49 Fed. Rep. 671; The City of Norwalk, 55 id. 98; Nelson v. The Premier, 59 id. 797. But damages allowed by a state statute for negligence causing death on navigable waters within the State may be recovered on a libel in personam. The Car Float No. 16, 61 Fed. Rep. 364; The City of Norwalk, 55 id. 98; Nelson v. The Premier, 59 id. 797.

The admiralty courts have no jurisdiction of a suit for injuries suffered by a seaman upon a wharf from the improper method of discharging the cargo, although loss of wages is incidentally involved in the damages. The Mary Garrett, 63 Fed. Rep. 1009. A claim for bad treatment of an American seaman serving on a Norwegian

vessel, is not within the U. S. admiralty statutes. Williams v. The Welhaven, 55 Fed. Rep. 80. Such courts cannot, after judgment, order a vessel, which has been released on bond, to be rearrested. The Hattie Bell, 65 Fed. Rep. 119.

When injury is caused by a collision between a vessel and a bridge, or wharf, &c., the jurisdiction of admiralty is determined by the locality of the thing injured. Northwestern U. P. Co. v. Atlee, 2 Dillon, 479; 21 Wall. 389; Johnson v. Chicago Elevator Co., 119 II. S. 388; Boston v. Crowley, 38 Fed. Rep. 202; Assante Charleston Bridge Co., 40 id. 765; Hill v. Chosen Freeholders, 45 id. 260; Oregon City Trans. Co. v. Columbia St. Bridge Co., 53 id. 549; The Professor Morse, 23 id. 803; Greenwood v. Westport, 60 id. 560; Anderson v. The Mary Garrett, 63 id. 1009; Price v. The Belle of the Coast, 66 id. 62. See The Zeta, [1893] A. C. 468; 10 Law Quart. Rev. 113. Hence an injury to a person upon a wharf by a cause of injury proceeding from a vessel is not within the admiralty jurisdiction, but an injury to a person on the vessel caused by a piece of timber, &c., sent from the wharf, is within such jurisdiction. Ibid.; Hermann v. Port Blakely Mill Co., 69 Fed. Rep. 646. Flood waters are not within admiralty cognizance; hence, a building on land temporarily submerged by such waters and injured by a vessel is not within the admiralty jurisdiction. The Arkansas, 5 McCrary, 364.

Where the case is within admiralty cognizance, the District Court may decide the questions involved, and a writ of prohibition will not lie, but where the tort is not a maritime tort, a writ of prohibition will lie, especially if the want of jurisdiction appears on the face of the proceedings. Smith v. Whitney, 116 U. S. 167; Ex parte Phenix Ins. Co., 118 U. S. 610, 625.

In the admiralty, a commissioner's

of maritime law, which had embodied the enlightened reason of the civil law, and the customs and usages of the maritime nations, and regulates, by its decisions, the commercial intercourse of mankind. (a)1

(a) Judge Story stated, in this case, that all civilians and jurists agreed that maritime contracts included, among other things, charter-parties, affreightments, marine hypothecations, contracts for marine service in the building, repairing, supplying, and navigating ships, contracts between part owners of ships, contracts and quasi-contracts, respecting averages, contributions, and of missions and policies of insurance. He said that admiralty courts of other foreign countries had exercised jurisdiction over policies of insurance as maritime contracts.

1Admiralty Jurisdiction of the United States. — The Supreme Court has since decided in accordance with Judge Story's opinion, Insurance Co. v. Dunham, 11 Wall. 1; and that and other cases show that the admiralty and maritime jurisdiction of the United States is not limited by the restraining statutes or the judicial prohibitions of England. Ib. p. 24; Waring v. Clarke, 5 How. 441; New Jersey S. N. Co. v. Merchants' Bank, 6 How. 344; The Magnolia, 20 How. 296; The Commerce, 1 Black, 574; The Belfast, 7 Wall. 624, 640. [In Ex parte Easton, 95 U. S. 68, it is laid down: (1.) That the jurisdiction in admiralty of the United States courts is not limited by that of England. (2.) That it does not extend to all cases which would fall within it by the civil law and the usage of continental

nations. (3.) That its nature and extent is to be determined by the decisions of the Supreme Court, and by the usages existing in the States when the Constitution was adopted. The Lottawanna, 21 Wall. 558. — B.]

In The Hine, 4 Wall. 555, 569, Mr. Justice Miller declared it to be settled that the admiralty jurisdiction to which the power of the federal judiciary is by the Constitution declared to extend, is not limited to tide water, but covers the entire navigable waters of the United States; and that the jurisdiction of admiralty causes arising on the interior waters of the United States, other than the lakes and their connecting waters, is conferred by the Judiciary Act of Sept. 24, 1789, § 9, stated ante, 304, and more fully post, 372, in the text. A little later, in The

findings of fact may be reversed if clearly erroneous. The Cayuga, 59 Fed. Rep. 483. Upon an appeal the findings of the district judge upon conflicting evidence will not be disturbed unless clearly against the weight of evidence. The Albany, 48 Fed. Rep. 565; The Alijandro, 56 id. 621. But the circuit court's findings of fact are conclusive on an appeal. The Louisville v. Halliday, 154 U. S. 657; The S. S. Wilhelm, 59 Fed. Rep. 169. Unless the proofs are in writing, the circuit court of appeals will not review the facts on an appeal in admiralty from the district court. The Philadelphian, 60

Fed. Rep. 423. That court, on an appeal, tries the case de novo. Pettie v. Boston Towboat Co., 49 Fed. Rep. 464. That court is not within the Act of Feb. 16, 1875, which limits the Supreme Court, on an appeal in admiralty, to a review of the circuit court's findings on questions of law only. The State of California, 49 Fed. Rep. 172. As to the joinder of suits in rem and personam, see The Normandie, 40 Fed. Rep. 590; The Baracoa, 44 id. 102; The Clatsop Chief, 8 id. 163; The Monte A., 12 id. 331; The Alida, id. 343.

This enlarged extension of the civil jurisdiction of the admiralty, as declared in the Circuit Court in Massachusetts, remains

Eagle, 8 Wall. 15, 25, it was laid down that since the decision of The Genesee Chief, 12 How. 443, the admiralty jurisdiction of the district courts upon the great lakes and their connecting waters also must be regarded as conferred upon them by the same act. The act of 1845, ante, 367, n. (c), was passed when the jurisdiction under the Judiciary Act was supposed to be limited to tide waters, and when this was decided by the Supreme Court to be a wrong view of the law, and that the test was navigability, not the ebb and flow of the tide, it followed that the act of 1845 was inoperative to extend the jurisdiction, and if it affected it at all must restrict it, contrary to the intent of the act. It was pronounced not to have the latter effect in The Eagle (contrary to the doctrine of Allen v. Newberry, 21 How. 244, and the dicta in The Hine and Genesee Chief). See also Insurance Co. v. Dunham, 11 Wall. 1, 26.

Navigability within the meaning of these decisions is navigability in fact, and those rivers are said to be navigable which are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel may be conducted in the customary mode. The Daniel Ball, 10 Wall. 557, 563. [The jurisdiction was held to extend to a navigable canal in The Steamer Oler, 2 Hugh. 12; The Avon, 1 Brown Adm. 170. Comp. The Canal Boat E. M. McChesney, 8 Ben. 150; 15 Blatchf. 183. See The Montello, 11 Wall. 411, 20 Wall. 430, where it is assumed that a river must be navigable in its natural state to be a part of the navigable waters of the United States. — B.]

The jurisdiction as to tort is said to depend entirely on locality, and torts committed on navigable waters are cognizable in the admiralty courts. The Bel-

fast, 7 Wall. 624, 637; The Commerce, 1 Black, 574, 579. See Insurance Co. v. Dunham, 11 Wall. 1, 25; and below in this note. [Where the injury is suffered on land, though the instrument inflicting it is on navigable water, the admiralty has no jurisdiction. The Schooner Maud Webster, 8 Ben. 547; The Neil Cochran,

1 Brown Adm. 162; The Ottawa, ib. 356; A vessel does not cease to be within the admiralty jurisdiction when moored to a wharf. She is still water-borne, and not a part of the land. Leathers v. Blessing, 105 U. S. 626. The test of whether a vessel is of such a nature as to be within the admiralty jurisdiction is found in the object for which it is intended and the purpose for which it is used. If these be for commercial navigation, it is within the jurisdiction, no matter what its form or build, or its propelling power. The Genera] Cass, 1 Brown Adm. 334; Gastrel v. A Cypress Raft, 2 Woods, 213; A Baft of Cypress Logs, 1 Flip. 543. See Cope v. Vallette Dry Dock, 10 Fed. Rep. 142. And it seems that the nature of the subject-matter alone may be sufficient to give jurisdiction, though there be neither a maritime tort or contract. Grigg v. The Clarissa Ann, 2 Hugh. 89. A marine tort includes injuries arising from negligence as well as from positive tortious acts. Leathers v. Blessing, 105 U. S. 626; Holmes v. Or. & Cal. Ry. Co., 6 Saw. 262. An attachment of goods is sufficient to give jurisdiction where defendant is out of the district. Atkins v. Disintegrating Co., 18 Wall. 272. — B.]

With regard to contracts, it is well settled that jurisdiction does not depend upon their having been made upon the sea, nor, it would seem, upon the fact that they are to be performed upon navigable waters, Insurance Co. v. Dunham,

11 Wall. 1, 26, stated supra (a point in

to be discussed, and definitively settled, in the Supreme Court. It has been subsequently and frequently asserted in the circuit

doubt, perhaps, before that case, Belfast, supra), but upon the subject-matter of the contract; if that is maritime the contract is maritime. Among the contracts which have been considered maritime are those for marine insurance, Insurance Co. v. Dunham, supra; for the carriage of passengers on navigable waters, The Moses Taylor, 4 Wall. 411; see also The Pacific, 1 Blatchf. 569; charter-party, affreightment, wharfage, &c., as mentioned below in this note. But it seems to be the prevailing opinion that a contract to build a ship is not a maritime contract. People's Ferry Co. v. Beers, 20 How. 393, as explained in Morewood v. Enequist, 23 How. 491, 494, and 11 Wall. 28. See also Cunningham v. Hall, 1 Cliff. 43; Young v, The Orpheus, 2 Cliff. 29, 38; The Norway, 3 Benedict, 163, 165. The case of stevedore's service is thought doubtful in The Circassian, 1 Benedict, 209.

The original jurisdiction in admiralty exercised by the district courts by virtue of the act of 1789 is exclusive not only of other federal courts, but of the state courts also. The Hine, 4 Wall. 555, 569. [Comp. Studley v. Baker, 2 Low. 205.] It is not a remedy in the common-law courts which is saved by the clause in § 9, stated post, 372, ante, 304, n. (b), but a common-law remedy. The Moses Taylor, 4 Wall. 411, 412; The Belfast, 7 Wall. 624, 644. [Comp. Baird v. Daly, 57 N. Y. 236.] If there is a common-law remedy, it may be pursued at the election of the suitor in the state courts, or in the Circuit Court if his residence permits. The Belfast, supra; Leon v. Galceran, 11 Wall. 185, 191; [United States v. Schoonmaker, 102 U. S. 118.] See also a masterly article by Mr. Dana, 5 Am. Law Rev. 581, on the history of the admiralty jurisdiction, at pp. 617, 620, from which much assistance has been derived in revising this

note. Taylor v. Carryl, 20 How. 583, 598; post 377, n. (c) and 1.

A proceeding in rem to enforce a maritime lien is not, however, a common-law remedy, and if a state statute purports to give such a remedy in a common-law court it is invalid for that purpose. 7 Wall. 644. On this ground it has been held that state courts have no jurisdiction to enforce a lien for breach of a contract to carry a passenger by steam on the Pacific Ocean by proceedings in rem under a state law, The Moses Taylor, 4 Wall. 411; nor of similar proceedings for a collision on the Mississippi River, The Hine, 4 Wall. 555; nor of similar proceedings to enforce a lien for breach of a contract between citizens of a state for the carriage of merchandise from one port to another within the same state over navigable waters, The Belfast, 7 Wall. 624.

A maritime lien is the foundation of a proceeding in rem. The Bold Buccleugh, 7 Moore, P. C. 267, 284; The Rock Island Bridge, 6 Wall. 213; Castrique v. Imrie, L. R. 4 H. L. 414, 447. See The Maggie Hammond, 9 Wall. 435. And whenever a maritime lien arises, the injured party may proceed, whether for a breach of a maritime contract or a maritime tort, either in rem or in personam, at his election. The Belfast, 7 Wall. 624, 642; Leon v. Galceran, 11 Wall. 185, 192. And the same rule seems to apply to some matters not strictly belonging either to contract or tort, such as salvage, jettison, or general average. The Eagle, 8 Wall. 15, 23.

Taking this in connection with the rule above stated as to jurisdiction over torts, it has been held that the United States courts have jurisdiction of proceedings in rem for a collision infra corpus comitatus, The Commerce, 1 Black, 574; The Belfast, 7 Wall. 624, 637; The Brooklyn, 2 Benedict, 547; or in foreign waters, and

and district courts. Thus, in Plummer v. Webb, (b) the jurisdiction of the admiralty over all maritime contracts, upon the

(b) 4 Mason, 380.

It is said that in these cases, as in others, the American law will generally be applied. The Eagle, 8 Wall. 15, 22. See further, as to maritime torts, Phil., Wil. & Balt. R. R. v. Phil. & H. Steam T. Co., 23 How. 209; The Slavers (Reindeer), 2 Wall. 384; Barnett v. Luther, 1 Curt. 434. [The lien given by maritime law is a proprietary right, enforceable in any jurisdiction, and is not defeated by a sale of the vessel to a bona fide purchaser, or by anything except proceedings in rem. The Avon, 1 Brown Adm. 170; The Champion, ib. 520. See The City of Mecca, 6 P. D. 106. — B.]

To give some other instances, the United States courts have jurisdiction of similar proceedings for general average contributions. Dupont de Nemours v. Vance, 19 How. 162; The Eagle, 8 Wall. 15, 23. But when, as has been determined by the Supreme Court in certain cases mentioned in the notes to shipping in the third volume, post, the lien depends on possession, if possession is given up without reserve there can be no proceeding in rem. Bags of Linseed, 1 Black, 108, 113. See The Eddy, 5 Wall. 481, 494. And it has been held that in some cases, e. g. for contribution in general average, the admiralty jurisdiction in personam was gone also. Cutler v. Rae, 7 How. 729; 8 How. 615.

The jurisdiction also extends to similar proceedings for salvage, The Centurion,

Ware, 477; A. D. Patchin, 1 Blatchf. 414; Gates v. Johnson, 21 Law Rep. 279 (as to seizures, see Taylor v. Carryl, 20 How. 583); for torts or breaches of contract by carriers of passengers on navigable waters, The Moses Taylor, 4 Wall. 411; Steamboat New World, 16 How. 469; Pacific, 1 Blatchf. 569; for contracts of charter-party or affreightment to be performed on navigable waters, The Belfast, 7 Wall. 624, 637; The Eddy, 5 Wall. 481; Morewood v. Enequist, 23 How. 491; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Carpenter v. Schooner Emma Johnson, 1 Cliff. 633; Church v. Shelton, 2 Curt. 271; The Hardy, 1 Dillon, 460; although made and to be performed abroad by a foreign ship, Maggie Hammond, 9 Wall. 435; for contracts of wharfage, Kelsey v. The Kate Tremaine, 4 Am. L. T., U. S. Courts R. 92; and to libels by mariners for their wages earned on navigable waters entirely within one state. The Sarah Jane, 1 Lowell, 203, 2 Am. Law Rev. 455.

The existence of a maritime lien, and consequently of a proceeding in rem in the admiralty, has been denied against bridges, The Rock Island Bridge, 6 Wall. 213; canal boats fit only for canal navigation, &c., Ann Arbor, 4 Blatchf. 205; Jones v. Coal Barges, 3 Wall. Jr. 53; Hendrick Hudson, 3 Benedict, 419. Compare The General Cass, 5 Am. L. T. 12. (x)

The much-debated question as to the

(x) The following are within the admiralty jurisdiction: A dredge and her scows treated as one craft: Evans v. The Starbuck, 61 Fed. Rep. 502; Aitcheson v. The Endless Chain Dredge, 40 id. 253; The Alabama, 22 id. 449; there being, however, no joint lien on different scows and dredges for the entire price of services

rendered to them separately: The Columbus, 65 id. 430; a bath-house built on boats and designed for navigation and transportation: Tebo v. New York, 61 id. 692; a steam ferry-boat plying across a river or harbor: Murray v. The F. B. Nimack, 2 id. 86; a dismantled steamer made into a pleasure tow-boat: The City

doctrine of the case {370} of De Lovio v. Boit, was declared, and it was considered, that, inasmuch as courts of admiralty act as courts of equity and administer justice upon the same principles, and with equal safety, maritime contracts were suitable objects of such a jurisdiction; and especially as such contracts require a liberal interpretation and enlarged good faith, and the application of a comprehensive equity. So in Steele v. Thatcher, and Drinkwater v. The Brig Spartan, in the District Court for Maine, the doctrine in De Lovio v. Boit was explicitly recognized as sound. (a) It was declared to have been before the public for

(a) Ware, 91, 149.

enforcement in admiralty of liens created by state laws in favor of parties to maritime contracts to whom the general admiralty law does not give such liens is adverted to in the notes to vol. iii. 170, n. 1. By way of finishing the subject of admiralty jurisdiction, it should be added that it does not extend to the decree of a sale or foreclosure of a ship under a mortgage, Bogart v. The John Jay, 17 How. 399; nor to matters of account between partners, Ward v. Thompson, 22 How. 330; nor to matters of account between

part owners, although the plaintiff was also master and ship's husband, The Larch, 2 Curt. 427. See Kellum v. Emerson, ib. 79; Marengo, 1 Lowell, 52, 1 Am. L. Rev. 88. [As to when a United States district court will take jurisdiction in case of a libel against a foreign vessel, or in suits between foreigners, see The Bark Lilian M. Vigus, 10 Ben. 385; Thomassen v. Whitwell, 9 Ben. 113; The Hermine, 3 Saw. 80; Bernhard v. Creene, ib. 230; The Pawashick, 2 Low. 142. — B.]

of Pittsburg, 45 id. 699; timbers made into a raft for transit and manned by a pilot, crew, and cook for the voyage: Muntz v. A Raft of Timber, 15 id. 555; Seabrook v. Raft of Railroad Cross-Ties, 40 id. 596.

The following are not: rough boxes, not manned or enrolled, and used but once or twice for the transportation of coal on a river: Wood v. Two Barges, 46 Fed. Rep. 204; a marine pump: Baker v. The Big Jim, 61 id. 503; a floating dry-dock: Cope v. Vallette Dry-dock, 10 id. 142; Snyder v. A Floating Dry-dock, 22 id. 685; a floating pile-driver: Muellerweisse v. Pile Driver, 69 id. 1005; a marine railway with one end fastened to the land and the other extending into the water. The Professor Morse, 23 id. 803.

The admiralty jurisdiction of the Fed-

eral courts is exclusive and uniform, and State laws providing for maritime liens by proceedings in rem are void. United States v. Burlington & H. Ferry Co., 21 Fed. Rep. 331; The Menominie, 36 id. 197; Aitcheson v. Endless Chain Dredge, 40 id. 253; McCaffrey v. The J. G. Chapman, 62 id. 939; The Wm. M. Hoag, 69 id. 742; Eley v. The Shrewsbury, id. 1017; Butler v. Boston & S. S. Co., 130 U. S. 527; Stewart v. Potomac Ferry Co., 5 Hughes, 372. Maritime freight, proceeded against in a State court of equity without jurisdiction, and in the hands of a depositary, may be attached in admiralty to enforce a maritime lien thereon. The Vigilancia, 63 Fed. Rep. 733. So of a vessel in the possession of a receiver. The Willamette Valley, 66 id. 565; see The City of Frankfort, 62 id. 1006.

twelve years, without having its reasoning met, or its conclusions shaken; and it was adjudged that the admiralty had a general jurisdiction over maritime contracts; and the circumstance that the contract was under seal did not affect the jurisdiction, though it was admitted that in England the courts of law would grant a prohibition in such a case. The broad jurisdiction of the American courts of admiralty over all executed maritime contracts (for the jurisdiction is confined to executed contracts (b)l (x), and

(b) 3 Mason, 16, 17.

1 But see The Pacific, 1 Blatchf. 569; ante, 369, n. 1. [The following are further examples of contracts held to be maritime in character: (Wharfage) Ex parte Easton, 95 U. S. 68; (repairs) Steamer Petrel v. Dumont, 28 Ohio St. 602; (raising vessel) The Louisa Jane, 2 Low. 295; (promise to pay average loss) Bark San Fernando v. Jackson, 12 Fed. Rep. 341.

The following were held not maritime: (Building) [Edwards v. Elliott, 21 Wall. 532; Steamer Petrel v. Dumont, supra; (mortgage) Deely v. Brigantine Ernest, 2 Hugh. 70. See generally The Eliza Ladd, 3 Saw. 519; The Iosco, 1 Brown Adm. 495; The Vidal Sala, 12 Fed. Rep. 207. — B.]

(x) Courts of admiralty act on equitable principles, but they cannot grant injunctions, or order specific performance or reformation of contracts. Watts v. Camors, 115 U. S. 353; Paterson v. Dakin, 31 Fed. Rep. 682; Marquardt v. French, 53 id. 603; Meyer v. Pacific Mail S. Co., 58 id. 923; Williams v. Providence W. Ins. Co., 56 id. 159; The Eclipse, 135 U. S. 599.

The following contracts are maritime: a docking contract: The Vidal Sala, 12 Fed. Rep. 207; overcharge of freight: Oregon v. Pittsburgh & L. A. Iron Co., 55 id. 666; false representations to a passenger, made on land, as to a future voyage: The Normannia, 62 Fed. Rep. 469; an implied contract of the wharfage of a floating boat-house: Woodruff v. One Covered Scow, 30 id. 269; contracts of affreightment: The Queen of the Pacific, 61 id. 213; an express or implied contract for wharfage furnished to a foreign vessel: The Dora Mathews, 31 id. 619; a contract to float a vessel landed by a storm far up a beach: Frame v. The Ella, 48 id. 569; a contract to pay a fixed amount for

salvage in any event: The Roanoke, 50 id. 574; see Sheldrake v. The Chatfield, 52 id. 495; a voyage chartered in a vessel not yet built: Dumois v. The Baracoa, 44 id. 102; a contract to furnish necessaries or nets for the voyage of a fishing vessel, though not yet launched: The Hiram R. Dixon, 33 id. 297; Lake v. The Manhattan, 46 id. 797; breach of contract as to the quality of supplies furnished: Electro-Dynamic Co. v. The Electron, 48 id. 689; goods ordered by the owner in the home port: The Glenmont, 34 id. 402; affreightment: The Queen of the Pacific, 61 id. 213; a charter-party, or a bond given to secure performance thereof: Haller v. Fox, 51 id. 298; The Alberto, 24 id. 379; a stevedore's claim for loading or unloading a vessel, even in the home port. The Gilbert Knapp, 37 Fed. Rep. 209; The Mattie May, 45 id. 899.

The following contracts are not maritime: Materials or machinery furnished, or work done, in the original construction or equipment of a vessel: The Pacific, 9 Fed. Rep. 120; The Count de Lesseps, 17 id. 460; The Glenmont, 32 id. 703; 34 id.

all cases of a maritime nature, has been equally asserted in the circuit courts of the United States at New York and Philadelphia, founded on the language of the Constitution and the Judiciary Act of 1789. (c) This enlarged admiralty cognizance of civil causes was elaborately vindicated, on principles of reason, as well as on the ground of authority, in the case of the Schooner Tilton. (d) It was there held that the admiralty had jurisdiction of all causes of a maritime nature, inclusive of questions of prize, whether they arose from contracts or from torts. The jurisdiction was clear, in all matters that concerned owners and proprietors of ships, as such. It was observed that suits in the admiralty, touching {371} property in ships, were either petitory suits, in which the mere title to the property is litigated and sought to be enforced, or they were possessory suits, to restore to the owner the possession, which he had under a claim of title. The jurisdiction over both classes of cases was exercised by the

(c) The Sloop Mary, 1 Paine, 673; Wilmer v. The Smilax, [2 Pet. Adm. 295, n.,] and Davis v. Brig Seneca, [Gilp. 10,] in the Circuit Court of the Pennsylvania district.

(d) 5 Mason, 465. It is not disputed that courts of admiralty have jurisdiction over charter-parties and maritime contracts generally, but not over preliminary contracts leading thereto. Andrews v. Essex F. & M. Ins. Company, 3 Mason, 6; The Schooner Tribune, 3 Sumner, 144.

402; personal loans, not on the ship's credit, though made in a foreign port: Hart v. The Advance, 63 id. 142; Brown v. The Alliance, id. 726; Gulf City G. & W. Co. v. The George Dumois, 66 id. 353; a loan of money, secured by a conveyance or mortgage of a vessel: The C. C. Trowbridge, 14 id. 874: The Ella J. Slaymaker, 28 id. 767; The Katie O'Neil, 65 id. 111; Gray v. Proceeds of The Advance, 63 id. 704; fraudulent negotiations inducing the making of a policy of maiine insurance: Williams v. Providence W. Ins. Co., 56 id. 159; a contract to procure marine insurance: Marquardt v. French, 53 id. 603; see Rosenthal v. The Louisiana, 37 id. 264; matters of account between part-owners of a vessel: The H. E. Willard, 53 id. 599; 52 id. 387; the lease of a wharf: Upper S. Co. v. Blake, 2 App. D. C. 51; storage of grain through the winter on a vessel tied up to a wharf:

The Pulaski, 33 id. 383; Norton v. The Richard Winslow, 67 id. 259; services of a ship-keeper in the home port: The America, 56 id. 1021; The Sirius, 65 id. 226; a contract for river pilotage under which no services have been performed. The Seven Sons, 69 id. 271.

After the vessel is launched, contracts for equipment or repairs or material are maritime. Before the vessel is launched, they are contracts upon land, and are non-maritime. Globe Iron-Works Co. v. The John B. Ketcham, 2d, 100 Mich. 583, holding that a claim for the price of a boiler, smokestack, &c. supplied in building and equipping a steamer before launching, was non-maritime and enforceable in a State court by a proceeding in rem under a State statute. See also The Paradox, 61 Fed. Rep. 860; Lake Nav. Co. v. Austin El. Supply Co. (Texas), 30 S. W. Rep. 832.

admiralty, until some time after the restoration in 1660, when the courts of law interfered, and claimed the exclusive cognizance of mere questions of title; and the admiralty jurisdiction over petitory suits has been, in England, abandoned for a considerable length of time, though it is constantly upheld as to possessory suits. (a) The distinction does not appear to rest on any sound principle, for the question of title is necessarily involved in that of the possession; and it is admitted by the courts of law (b) that the admiralty possesses authority to decree restitution of a ship unlawfully withheld by a wrong-doer from the real owner. In the case of illegal captures, and of bottomry, salvage, and marine torts, the admiralty courts in this country inquire into and decide on the rights and titles involved in the controversy; and where they have jurisdiction of the principal matter, it is suitable, and according to the analogies of law, that they should possess it over the incidents.1 Notwithstanding the English practice to the contrary, the admiralty in this country claim to possess a rightful jurisdiction equally over petitory and possessory suits. (c)

(a) Haly v. Goodson, 2 Meriv. 77; Lord Stowell in the cases of The Aurora, 3 C. Rob. 133, 136; The Warrior, 2 Dods. 288; and The Pitt, 1 Hagg. Adm. 240; 2 Bro. Civ. & Adm. Law, 114, 115.

(b) In the matter of Blanchard, 2 Barn. & Cress. 244.

(c) The Schooner Tilton, 5 Mason, 465; Ware, Judge, in Ware, 248, S. P. In the case of the Schooner Volunteer and Cargo, 1 Sumner, 551, Mr. Justice Story reasserted, with undiminished confidence, the rightful jurisdiction of the American admiralty over charter-parties and all other maritime contracts, whether made in foreign parts or at home, as matters juris et de jure, and that the court might proceed in rem, where there was a lien, and in personam where no such lien existed. He reviewed, with his usual accuracy and spirit, the history of the question of admiralty jurisdiction, as he had already done more at large in De Lovio v. Boit. See supra, 367. On the other hand, in Bains v. The Schooner James and Catharine, 1 Bald. 544, Judge Baldwin held, that admiralty jurisdiction, under the Constitution of the United States, was to be considered as restrained by the statutes and common law of England before the Revolution, and as exercised by the state courts before the adoption of the Constitution. It is high time that this vexed question of admiralty jurisdiction under the Constitution of the United States should be put at rest by a final decision in the Supreme Court of the United States. The Court of Appeals in Kentucky, in the case of Case v. Woolley, 6 Dana, 21, do indeed consider the question as authoritatively settled by the cases of De Lovio v. Boit, Plummer v. Webb, Drinkwater v. The Brig Spartan, The Steamboat Thomas Jefferson, and Peyroux v. Howard, that a civil cause arising where the tide ebbs and flows, even though it may be within a county, was

1 Ward v. Peck, 18 How. 267; Taylor v. The Royal Saxon, 1 Wall. Jr. 311; The Friendship, 2 Curtis, 426; The Taranto,

1 Sprague, 170. But see The John Jay, 3 Blatchf. 67.

With respect to the criminal jurisdiction of the admiralty, we have already seen that the courts of the United States do not assume any jurisdiction which is not expressly conferred by an act of Congress; and the argument for the extension of the civil jurisdiction of the admiralty beyond {372} the limits known and established in the English law, at the time of the formation of our Constitution, is not free from very great difficulty.

It has been made a question, what were the "cases of admiralty and maritime jurisdiction," within the meaning of the Constitution of the United States. It is not in the power of Congress to enlarge that jurisdiction beyond what was understood and intended by it when the Constitution was adopted, because it would be depriving the suitor of the right of trial by jury, which

a case of admiralty or maritime jurisdiction. Mr. Curtis, in his Treatise on the Rights and Duties of Merchant Seamen, pp. 252, 253, 260, concludes his examination of the cases, with the proposition, that all persons on board a vessel engaged in service, and whose service is of a maritime character, and in the business and employment of the vessel, have a present standing in the admiralty, and come within its jurisdiction, and can sue in personam, and, where there is a lien, in rem.

The jurisdiction of the English admiralty has been enlarged, and doubtful points settled by the statute of 3 & 4 Victoria, c. 68, passed 7th August, 1840. It is entitled "An Act to improve the Practice and extend the Jurisdiction of the High Court of Admiralty of England." The Dean of the Arches is made an assistant judge of the admiralty court, with concurrent authority. Jurisdiction is given over the claims of mortgagees of ships, over all questions as to the title to ownership of any ship or vessel, or the proceeds thereof remaining in the registry, arising in any case of possession, salvage, damage, wages, and bottomry. Jurisdiction is given over all claims and demands in the nature of salvage, for services rendered to, or damages received by, any ship or sea-going vessel, or in the nature of salvage or for necessaries supplied to any ship or sea-going vessel, or in the nature of salvage or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county or upon the high seas at the time. The court may direct issues of fact to be tried by a jury, before a judge of one of the courts of law at Westminster, and the judge of the admiralty is to have the like protection as other judges in the exercise of his jurisdiction. Concurrent jurisdiction over all these subjects and causes of action is retained in the courts of law.

A synopsis of the admiralty jurisdiction in this country is stated to contain, 1. Contracts between part owners, petitory and possessory suits; 2. Charter-parties and affreightments; 3. Bottomry and hypothecation; 4. Contracts of material-men; 5. Insurance; 6. Wages; (x) 7. Salvage, civil and military; 8. Averages, contributions,

(x) An assignment of a shipwright's lien for repairs may be enforced in admiralty. Park v. The Hull of the Edgar Baxter, 37 Fed. Rep. 219. So may the assignment,

if fairly made, of a mariner's lien for wages. The New Idea, 60 id. 294; The Wm. M. Hoag, 69 id. 742.

is secured to him by the Constitution in suits at common law; and it is well known that in civil suits of admiralty and maritime jurisdiction the proceedings are according to the course of the civil law, and without jury. If the admiralty and maritime jurisdiction of the district courts embraces all maritime contracts, then suits upon policies of insurance, charter-parties, marine hypothecations, contracts for building, repairing, supplying, and navigating ships, and contracts between part owners of ships, must be tried in the admiralty by a single judge, to the exclusion of the trial by jury; and the state courts would be devested, at one stroke, of a vast field of commercial jurisdiction. The words of the Judiciary Act of 1789, sec. 9, are, that the district courts shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas." But the act adds, by way of qualification to this designation of admiralty jurisdiction, these words, viz., "saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it."1

The act of Congress is rather ambiguous in its meaning, and leaves it uncertain whether it meant to consider seizure on tide waters, in ports, harbors, creeks, and arms of the sea, as cases of admiralty and maritime jurisdiction, or as {373} cases simply within the cognizance of the district courts; for the expression is including, that is, comprehending, either within the cognizance of the court, or within the class of cases of admiralty jurisdiction, all seizures under laws of impost, navigation, and trade, on waters navigable from the sea, by small vessels of ten tons burden. This act has, however, been construed to put a construction upon the words "admiralty and maritime jurisdiction," conformable to the claims of the civilians, and in opposition to the claims of the common-law tribunals; and there is a

and jettisons; 9. Pilotage; 10. Ransom; 11. Surveys; 12. Maritime torts and trespasses. The Jurist, for January, 1841, p. 408. All the above causes of action, except those arising on insurance, ransom, and surveys, now belong to the English court of admiralty.

1Ante, 369, n. 1.

series of decisions in the Supreme Court of the United States to that effect.

In the case of The United States v. La Vengeance, (a) a French privateer was libelled in the District Court of New York for an attempt to export arms from the United States to a foreign country contrary to law. She was adjudged to be forfeited to the United States. The decree, on appeal to the Circuit Court, was reversed. On a further appeal to the Supreme Court of the United States, it was contended that this was a criminal case, both on account of the manner of prosecution, and the matter charged; and, therefore, that the decree of the District Court was final; and that it ought likewise to have been tried by a jury in the District Court; and that, if it was even a civil suit, it was not a case of admiralty and maritime jurisdiction. To render it such, the cause must arise wholly upon the sea, and not in a bay, harbor, or water within the precincts of any county of a state. But the Supreme Court decided that it was a civil suit, not of common-law, but of admiralty and maritime, jurisdiction. The seizure was on the waters of the United States. The process was in rem, and did not, in any degree, touch the person, and no jury was necessary.

Afterwards, in the case of The United States v. The Schooner Sally, (b) the vessel was libelled in the District Court, as forfeited for being concerned in {374} the slave-trade; and this was also held, on appeal, to be a case, not of common-law, but of admiralty, jurisdiction. So, in the case of The United States v. The Schooner Betsey, (a) it was held that all seizures under the act of Congress suspending commercial intercourse with a foreign country, and made on waters navigable from the sea, by vessels of ten tons burden, were civil causes of admiralty jurisdiction, being proceedings in rem, and not according to the course of the common law, and were to be tried without a jury. The court said, that the place of seizure being on navigable waters decided the jurisdiction, and that the act of Congress meant to make seizures on waters navigable from the sea civil causes of admiralty and maritime jurisdiction. In this last case, the counsel for the claimant contended that the seizure was made within the body of a county, for a breach of a municipal law of trade, and that though it belonged to the jurisdiction of the District Court,

(a) 3 Dallas, 297. (b) 2 Cranch, 406. (a) 4 Cranch, 443.

it was not a case of admiralty cognizance. All seizures in England, for violation of the laws of revenue, trade, or navigation, were tried by a jury in the Court of Exchequer, according to the course of the common law; and though a proceeding be in rem, it is not necessarily a proceeding or cause in the admiralty.

In the case of the Samuel, (b) where the vessel and cargo were seized and libelled, and condemned in the District Court of Rhode Island, for a breach of the non-importation laws of the United States, the same objection was made upon appeal to the Supreme Court, and it was again overruled, on the authority of the preceding cases. The same objection was taken in the case of the Octavia; (c) and it was contended that the word including, in the 9th section of the Judiciary Act, ought not to be construed cumulatively; and that a suit might be a cause of admiralty and maritime jurisdiction, and yet triable under the common law, proceeding {375} by information, instead of the civil-law process by libel. The objection was again overruled. The last case that brought up the same point for review and discussion was The Sarah; (a) and the Supreme Court there recognized the marked and settled distinction between the common law and the admiralty jurisdictions of the district courts. In seizures made on land, the District Court proceeds as a court of common law, according to the course of the English Exchequer, on information in rem, and the trial of issues of the fact is to be by jury. (b) But in cases of seizures on waters navigable from the sea, by vessels of ten 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

(b) 1 Wheaton, 9. (c) 1 Wheaton, 20. (a) 8 Wheaton, 391.

(b) Thompson, J., 1 Paine, 504; United States v. Fourteen Packages, Gilpin, 235.

upon navigable waters, and they proceed there to try the fact on which the forfeiture arises, by jury. (c) 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, (d) 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, (e) that informations of that {376} nature 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 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.1 It is probable, however, that the Judiciary Act of 1789 did not intend to do more than to 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." 2 We have

(c) Attorney-General v. Le Merchant, 1 Anst. 52.

(d) Bunb. 236.

(e) Harg. L. T. 227.

1 See Union Ins. Co. v. United States, 6 Wall. 759, and other cases cited, ante, 357, n. 1. See also 302, n. 1.

2Ante, 369, n. 1.

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 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)

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. (c)1 It is certain, however, that the state

(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, 158.

(b) Journals of Congress, i. 22, 29, 39; Journals of the Assembly of the Colony of New York, ii. 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 ed. 391.

(c) Constitution, art. 3, sec. 2; Act of Congress of September 24, 1789, c. 20, sec. 9; vide supra, 304, 372. Mr. Justice Story (3 Comm. on Const. 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

1 See as to the subjects treated in the text and note (c), ante, 369, n. 1. In Taylor v. Carryl, 20 How. 583, the re-

marks of Mr. Justice Story above referred to are cited with approbation.

courts take an extensive and unquestioned cognizance of maritime contracts, and on the ground that they are not cases, strictly and technically speaking, of admiralty and 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 ages, before its territories {378} had been invaded and partly subdued by the bold and free

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."

spirit of the courts of common law, armed with the protecting genius and masculine vigor of trial by jury.

4. Jurisdiction as an Instance Court of Admiralty. — 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) 1 The admiralty has cognizance of maritime hypothecations of vessels and goods in foreign ports, for repairs done, or necessary supplies furnished; (b) and in the

(a) Com. Dig. tit. Adm. E. 1. 7, 10, 12, F. 1. 2, 4, 5; 3 Blackst. 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 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, 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. Phœbus, 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 waters. See pp. 364, 367, 369, 370, 371, 378, 379, of this volume. [But see now 369, n. 1.]

(b) Johnson v. Shippen, 1 Salk. 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

1Ante, 369, n. 1.

case of Menetone v. Gibbons, (c). 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 {379} do not proceed in rem. (a) If the admiralty has cognizance of the principal thing, it has also of the incident, though that incident would not, of itself, and if it stood for a principal thing, be within the admiralty jurisdiction. Upon this principle it is that goods taken by pirates, and sold on land, may be recovered from the vendee, by suit in the admiralty. (b) Suits for seamen's wages are cognizable in the admiralty, though the contract be made upon land, provided it be not a contract under seal; and this is intended for the ease and benefit of seamen, for they are all allowed to join in the suit, and all the persons on board below the rank of the master are comprehended in the description of mariners. (c)

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, 671; The Brig Draco, 2 Sumner, 157. (c) 3 T. R. 267.

(a) In the case of The Atlas, 2 Hagg. Adm. 48-73, it was admitted that the court of admiralty had an undoubted jurisdiction over bottomry bonds founded upon sea risks, and defeasible by the destruction of the ship in the course of the voyage. It was an original jurisdiction exercised upon the ground of authorized usage and established authority. But the jurisdiction would not attach upon any bond not dependent upon the accidents of the voyage.

(b) Com. Dig. tit. Adm. F. 6; 3 Blacks. Com. 108. The court of admiralty has authority to entertain a civil suit, entitled causa spolii civilis et maritima, for the restitution of goods piratically taken on the high seas. The Hercules, 2 Dods. 369; [528 Pieces of Mahogany, 2 Low. 323].

(c) 1 Salk. 34; Str. 761, 937; 1 Lord Raym. 398; 3 Lev. 60; 4 Inst. 134, 142; Com. Dig. tit. Adm. E. 15; 2 Lord Raym. 1044, 1206. A contract for wages on board a steamboat plying between ports of adjoining states, on a navigable tide water, may be enforced by a suit in rem in the admiralty. Wilson v. The Steamboat Ohio, Gilpin, 505. But to render a service on board a vessel even on tide waters maritime, so far as to give admiralty jurisdiction over it as for wages, it must contribute to the preservation of the vessel, or of those whose labor and skill are employed to navigate her. Musicians do not come within that description. Trainer v. The Superior,

This case of seamen's wages the courts of common law admit to be of admiralty jurisdiction; and this is an exception in favor of seamen, to the general rule that the admiralty has no jurisdiction of any matter arising on land, though it be of a maritime nature, as a charter-party or policy of insurance. The District Court, as a court of admiralty, possesses a general jurisdiction in suits by seamen and salvors, and by material-men, in rem and in personam. The courts of admiralty have a general jurisdiction to enforce maritime liens, by process in rem, and there may be a maritime jurisdiction in personam, where there is no lien, and consequently no jurisdiction in rem.1 Seamen have an implied lien on the vessel for services rendered upon the high seas or upon tide waters. They may proceed in rem and in personam; but the proceeding in rem is only maintainable by material-men when there is a specific lien, or for wages or for repairs made, or necessaries furnished to a foreign ship, or to a ship in the ports of the state to which she does not belong. (d) The admi-

Gilpin, 514. The service must be essentially maritime; labor on board a fuel or coal boat is not of that description. Thackery v. The Farmer, ib. 524. The service must concern transactions and proceedings relative to commerce and navigation, and to damages and injuries upon the sea. Nor has the admiralty any jurisdiction in matters of account between part owners. The Steamboat Orleans v. Phoebus, 11 Peters, 175. It is limited in matters of contract to those which are maritime. Ib. Thus, in the case of The Thomas Jefferson, 10 Wheaton, 428, it was held that the admiralty had no jurisdiction over contracts for the hire of seamen, unless the service was substantially performed upon the sea, or upon waters within the ebb and flow of the tide. Suits for seamen's wages on a voyage from a place in Kentucky, up the river Missouri and back again, were, therefore, not of admiralty and maritime jurisdiction. But state courts under state laws have jurisdiction in rem in cases of supplies and repairs to boats or vessels on river navigation in the interior, as well as under contracts for the carriage of persons or property upon navigable river waters. Statutes of Missouri, 1835, p. 102. The district courts, as instance courts of admiralty, have cognizance of all claims for salvage in cases of shipwreck, and of vessels derelict at sea. This is well settled by the American cases. See Conkling's Treatise, 2d ed. 156.

(d) The Hope, 3 C. Rob. 215; The Trelawney, 3 C. Rob. 216, note; The General Smith, 4 Wheaton, 438; The Jerusalem, 2 Gall. 345; The Robert Fulton, 1 Paine, 620; Drinkwater v. Brig Spartan, Ware, 149; Shepparde. Taylor, 5 Peters, 675; Story, J., in the case of the Brig Nestor, 1 Simmer, 74; Conkling's Treatise, 2d ed. 155; The Schooner Marion, 1 Story, 68. See also infra, iii. 167-170. If materials for a vessel be furnished in a home port, and a note of hand given by the owner, a libel in the admiralty in personam will not lie. Ramsay v. Allegre, 12 Wheaton, 611. In this last case the extent of admiralty jurisdiction in personam was much discussed and questioned by Mr. Justice Johnson. But in Willard v. Dorr, 3 Mason, 93, and in Ham-

1Ante, 369, n. 1.

ralty jurisdiction is essential {380} in all such cases, for the process of a court of common law cannot directly reach the thing in specie. If the law raises a lien for a maritime service, a court of admiralty has power to carry it into effect. (a)l The act of Congress of July 20, 1790, relative to seamen, sec. 6, has given a specific and summary relief for seamen in the recovery of wages, by authorizing the district judge, or, in his absence, a magistrate, to summon the master before him, and to attach the vessel as security for the wages. (b)

We have now finished a general survey of the admiralty jurisdiction of the district courts in civil and criminal cases, and both as an instance and a prize court. It would not be consistent with the plan of these elementary disquisitions to give a detailed sketch of the course of proceeding, and of the peculiar practice in the admiralty courts. The proceedings are according to the course of the civil law, and are remarkable for their comprehensive brevity, celerity, and simplicity. Nothing can be more

mond v. Essex F. & M. Ins. Co., 4 Mason, 196, Mr. Justice Story considered it to be settled jurisdiction of the admiralty, that the master could sue there in personam for his wages, and the seamen in rem as well as in personam for their wages. This appears to be a well-established distinction.

(a) Phillips v. Scattergood, Gilpin, 1. No prior replevin or attachment of the property under any state court process can control the paramount jurisdiction of the admiralty in rem, for freight or seamen's wages, or on a bottomry bond. Certain Logs of Mahogany, 2 Sumner, 589. A person hired for service as one of the crew on hoard of a canal-boat, under a coasting license, in the coal trade from the tide waters of the river Delaware, through the Raritan Canal, to the tide waters in the harbor of New York, performs service of a maritime character, and has a lien on the vessel for his wages, and may proceed in rem for the same. Weizer v. Coal Boat D. C. Salisbury, D. C. U. S. New York, November, 1844.

(b) See iii. 169-171, as to the lien of material-men. Ib., as to the remedy for seamen's wages. Material-men and workmen, having liens on vessels under state laws, may enforce them in the District Court as well as in a state court, at their election, as the jurisdiction is in that case concurrent. Davis v. A New Brig, Gilpin, 473. In the case of Heyer v. The Schooner Wave, in the District Court of the Southern District of New York, 2 Paine, 131, the plaintiffs, as branch or deputy pilots, libelled the vessel for salvage, in relieving her in distress within the harbor of New York, and salvage was allowed. On appeal to the Circuit Court of the United States for the Southern District of New York, the decree was reversed, on the ground that the act of Congress of August 7, 1789, c. 9, had adopted the pilotage laws of the states respectively, temporarily, and had not since interfered, and that the remedy for the pilots was in the state courts, and that the District Court had no jurisdiction in the case of pilotage arising within the waters of the states, until Congress should give it, as they had the right to do. See infra, iii. 176, note.

1Ante, 369, n. 1.

unlike, in its process, pleadings, proof, trial, and remedy, than the practice of the courts of admiralty and of the courts of common law. (c)

5. Civil Jurisdiction of the District Courts. — {381} The jurisdiction of the District Court, when proceeding as a court of common law, extends to all minor crimes and offences cognizable under the authority of the United States, and which are not strictly of admiralty cognizance; and to all seizures on land, and on waters not navigable from the sea; and to all suits for penalties and forfeitures there incurred; and to all suits by aliens, for torts done in violation of the law of nations, or of a treaty; and to suits against consuls and vice-consuls; and to all suits at common law, where the United States sue, and the matter in dispute amounts to one hundred dollars. (a) It has jurisdiction, likewise, of proceedings to repeal patents obtained surreptitiously, or upon false suggestions. This was given by the act of Congress of February 21, 1793, chap. ii., and it is a jurisdiction that leads

(c) The act of Congress of May 8, 1792, c. 36, sec. 2, declared that the form of writs, executions, and other processes, except their style, in suits of admiralty and maritime jurisdiction, should be according to the principles, rules, and usages which belong to courts of admiralty, as contradistinguished from courts of common law, subject to alterations and additions by the said courts, and to regulations to be prescribed by the Supreme Court. For a knowledge of the admiralty practice, I would refer the student to Clerke's Practice of the Court of Admiralty in England, which is a work of undoubted credit; and in 1809 a new edition was published in this country by Mr. Hall, with an appendix of precedents. I would also refer him to the 2d volume of Brown's Civil and Admiralty Law, and to the appendix to the 1st and 2d volumes of Mr. Wheaton's Reports, where he will find the practice of the instance and prize courts digested and summarily explained. See also the Treatise of Mr. Dunlap, on Admiralty Practice. He was formerly attorney of the United States for Massachusetts; and his work is pronounced, by the most competent judges, to be learned, accurate, and well-digested. See also the case of Lane v. Townsend, in the District Court of Maine, in 1835, Ware, 287, in which the learned judge defines the nature and effect of stipulations in the admiralty. That rase contains a learned examination of the mode of commencing a suit, and of the prętorian stipulations required of the defendant in the Roman law, and it satisfactorily shows great inaccuracy in Brown's view of the subjects of the stipulations, cautions, or securities required in the progress of the suit by the practice of the Roman forum. In the case also of Hutson v. Jordan, Ware, 385, 395, the admiralty practice, as derived from the Roman law and the civil law courts, is discussed with the customary learning and ability of the distinguished judge. So also the practice on the joinder of different actions of different natures in one libel, ib. 427. See, in 3 N. Y. Legal Observer, 357, and in the Law Reporter for March, 1846, the rules of practice in the courts of the United States, in causes of admiralty and maritime jurisdiction on the instance side of the court, established in pursuance of the act of Congress of 23d August, 1842, c. 188. (a) Judiciary Act of September, 1789, sec. 9.

frequently to the most intricate, nice, and perplexed investigations, respecting the originality of inventions and improvements in complicated machinery. (b) It was made a question in the District Court of New York, in the case Ex parte Wood, whether the process to be awarded to repeal the patent was not in the nature of a scire facias at common law, upon which issue of fact might be taken and tried by a jury. The district judge decided, that the proceeding was summary, upon a rule to show cause, and that no process of scire facias was afterwards admissible. But upon appeal to the Supreme Court of the United States, (c) the decree of the District Court was reversed, and the District Court was directed by mandamus to enter upon record the proceedings in the cause antecedent to the granting of the rule to show cause why process should not issue to repeal the patent. The District Court was further directed to award process, in the nature of a scire facias, to the patentee, to show cause why the patent should not be repealed; and upon the return {382} of the process, the court was to proceed to try the cause upon the pleadings of the parties, and the issue of law or fact joined thereon, as the case might be; and that if the issue be an issue of fact, the trial thereof was to be by jury, according to the course of the common law.

This was a just and liberal decision of the Supreme Court; and it was observed, in the opinion which was pronounced, that it was not lightly to be presumed that Congress, in this class of patent cases, placed peculiarly within their patronage and protection, involving some of the dearest and most valuable rights which society acknowledges, and the Constitution itself meant to favor, would institute a new and summary process, which should finally adjudge upon those rights without a trial by jury, without a right of appeal, and without any of those guards with which, in equity suits, it has fenced round the general administration of justice. The Supreme Court then went into an analytical examination of the 10th section of the act of 1793, on which the claim of summary jurisdiction rested, and vindicated the construction which they assumed in opposition to that taken by the District Court.

The jurisdiction of the judges of the district courts, in cases of bankruptcy, has presented for consideration some important

(b) See vol. ii. 368. (c) 9 Wheaton, 603.

questions on the point of jurisdiction. We have no bankrupt system in existence under the government of the United States: but there may be some lingering traces of business yet arising and undetermined, under the Bankrupt Act of the year 1800, and many questions may be expected to arise under the Bankrupt Act of 1841, which has been recently repealed. (a) In the case of Comfort Sands, (b) in the District Court of New York, it was observed that in England the sole power of directing the execution, and controlling the administration of the bankrupt system in all its departments {383} and in every stage of the proceeding, resided in the lord chancellor. This jurisdiction of the English chancellor is not in the court of chancery, but in the individual who holds the great seal; and it is exercised summarily upon petition, and his judgment upon the petition is without appeal, unless the chancellor, in his discretion, allows a bill to be filed, in order to found an appeal thereon. The judge then proceeded to examine the several provisions of the Bankrupt Act of the United States of 1800, in order to show, that, upon the principles of construction adopted in England, the district judge had the same jurisdiction in cases of bankruptcy as is exercised by the lord chancellor. The same course of reasoning which sustains the jurisdiction of the one would confer that of the other. He insisted that the jurisdiction was given, not to the District Court, but to the individual who happened to hold the office of district judge, and that, consequently, all his decisions in bankruptcy were without appeal, for appeals lie only from the decrees of the District Court. But that extraordinary doctrine has since been overruled; and it has been held (a) that the circuit courts of the United States had jurisdiction of matters arising under the bankrupt law, and the district courts had not exclusive jurisdiction over the entire execution of such laws. They could not remove the assignees, nor compel them to account. An appeal lay in proceedings under the Bankrupt Act from the district to the circuit courts, and the state courts had a concurrent jurisdiction in matters of account between the bankrupt and his creditors, and which has been freely and extensively exercised. (b)

(a) See infra, ii. 391. (b) United States Law Journal, i. 15.

(a) Lucas v. Morris, 1 Paine, 396.

(b) See the case of Sands v. Codwise, 4 Johns. 536. In the case Ex parte Christy,

6. Territorial Courts of the United States. — With respect to the vast territories belonging to the United States, Congress have assumed to exercise over {384} them supreme powers of sovereignty. Exclusive and unlimited power of legislation is given to Congress by the Constitution, and sanctioned by judicial decisions. (a) Congress was, by the Constitution, (b) clothed with authority "to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as might, by cession of particular states and the acceptance of Congress, become the seat of government of the United States." The District of Columbia was created for that purpose, under cessions from the states of Maryland and Virginia. The territorial jurisdiction of that district, known as the District of Columbia, and which embraces the city of Washington, and throws its municipal protection over all the officers and agents of the government of the United States, is extremely important. (c) (x)

3 How. 292, it was held that the Supreme Court had no revising power over the decrees of the District Court sitting in bankruptcy, under the act of 1841; but it had over proceedings as a court of admiralty and maritime jurisdiction. The District Court, when sitting in bankruptcy, had plenary power over liens and mortgages on the bankrupt's property, and summarily to decide on their validity and extent, and may operate upon the parties in the state courts by injunction, and in that way control the proceedings in the state courts. S. C. But in the case of Peck v. Jenness, Sup. Court of New Hampshire, July, 1845 [16 N. H. 516], it was adjudged that the Bankrupt Act of 1841 neither limited nor enlarged the jurisdiction of the state courts, and that creditors of a bankrupt may pursue their remedies in the state courts, notwithstanding their claims are debts capable of being asserted under the bankruptcy, and that mortgages and liens saved by the Bankrupt Act may be enforced in the state courts, and that the district courts cannot interfere with or control the exercise of it. See supra, 247, and infra, 411. On the other hand, in Lewis v. Fisk, 6 Rob. (La.), 159, it was held that a decree of bankruptcy, under the act of 1841, devested all jurisdiction in the state courts, and they had no authority to decide questions involving the adjustment of privileges and liens among the creditors of the bankrupt, or the distribution of the funds of the estate. All the estate of the bankrupt is, by the decree of bankruptcy, ipso facto vested in the assignee.

(a) Const. art. 4, sec. 3; American Ins. Co. v. Canter, 1 Peters, 511. See also supra, 258.

(b) Art. 1, sec. 8, 17.

(c) The powers of the judiciary of the District of Columbia were ably discussed and declared by Ch. J. Cranch, in the Circuit Court of that district, on the 6th of June, 1837, in the case of the United States, ex relat. Stokes, Stocktons, and Moore v.

(x) Congress cannot delegate general legislative power to the local government of the District of Columbia. Roach v. Van Riswick, 4 MacArthur, 171.

By the Act of April 7, 1874, ch. 80, § 2 (18 St. at L. 27), the appellate jurisdiction of the Supreme Court over the judgments and decrees of the Territorial

The general sovereignty existing in the government of the United States over its territories is founded on the Constitution, which

Amos Kendall, Postmaster-General of the United States, [5 Cranch, C. C. 163.] It was decided that the court had authority to issue a mandamus to compel the defendant to credit the relators with the amount of an award made by the Solicitor of the Treasury in their favor, under an act of Congress of July 2, 1836. The defendant had refused to appear under a citation in that cause, and claimed exemption from all personal responsibility, as one of the heads of the departments, to the jurisdiction of the court. The Chief Justice held that the Circuit Court of the district had all the jurisdiction that any circuit court of the United States could have, under the acts of Congress of 13th February, 1801, sec. 11, and of the 27th February, 1801, [c. 15,] sec. 5, and it had more, — it was inferior only to the Supreme Court. It had power to call before it any person found in the district, from the highest to the lowest. No officer of government in the district was too high to be reached by the process of the court. The defendant in the case could not shelter himself under the authority or command of the President. There is no law establishing a relation between the Postmaster-General and the President, or any authority in the latter to prescribe his duties, or control him in the exercise of his official functions. The Postmaster, in the exercise of his official duties, is as independent of the President as the President is of him. If the President has any power to control him, it is only through the fear of removal; and no act done under such a control would be justified. This decision was affirmed on appeal to the Supreme Court of the United States, in January term, 1838. Kendall v. The United States, 12 Peters, 524.

courts in jury cases is to be exercised by writ of error, and in other cases by appeal according to the rules and regulations prescribed by the Supreme Court. As to criminal cases in the Territories, see 18 St. at L. 254; In re Snow, 120 U. S. 274; Folsom v. United States, 16 S. C. 222; 26 St. at L. 829, § 13. Under the St. of Mar. 3, 1885 (23 St. at L. 443), § 2, providing for appeals and writs of error from the territorial Supreme Courts in certain cases, it is not necessary that the decision should be against the authority asserted. Clayton v. Utah, 132 U. S. 632. See Linford v. Ellison, 155 U. S. 503; Maricopa & P. R. Co. v. Arizona, 156 U. S. 347. In appeals or writs of error from the judgments or decrees of the Supreme Court of the District of Columbia, or the territorial courts, the matter in dispute, exclusive of costs, must now exceed $5,000, excepting cases of patents, copyrights, or under treaties or Federal statutes. Act of Mar. 3, 1885, ch. 355 (23 St. at L. 443). As to the District

of Columbia the amount of $1,000, named in the Rev. Stats. § 705, was increased to |2,500 in 1879 (20 St. at L. 320.) By the Act of Feb. 9, 1893, ch. 74, § 8 (27 St. at L. 434), establishing a court of appeals for the District of Columbia, appeals lie from that court to the U. S. Supreme Court. The Act of Mar. 3, 1891, ch. 539, § 9 (26 St. at L. 858), establishing a court of private land claims, provides for an appeal from that court to the Supreme Court. By the Act of June 10, 1890, ch. 407, § 15 (26 St. at L. 131, 138), the circuit courts may allow an appeal to the U. S. Supreme Court in cases of controversy as to the appraisal of imported merchandise.

The power conferred by the Constitution to make war and treaties implies the power to acquire territory by conquest or treaty and to govern such territory until it is admitted as a State into the Union. Nelson v. United States, 30 Fed. Rep. 112; supra, 25 n. (x.) The power of the United States over such territory extends

declared (d) that Congress "should have power to dispose of and make all needful rules and regulations respecting the Terri-

(d) Art. 4, sec. 3.

to all rightful subjects and methods of legislation. Ibid; Late Church of Latter-Day Saints v. United States, 131 U. S. 1. This includes the powers of both national and municipal government, and the United States may there grant, for appropriate purposes, titles and rights in tide lands below high water mark. Shively v. Bowlby, 152 U. S. 1. Upon the admission of the new State, the land beneath the navigable waters within its limits, vests in such State, and not in the United States. Van Brocklin v. Tennessee, 117 U. S. 151. Lands conveyed to a Territory, "its successors and assigns forever," pass to the State when admitted. Brown v. Grant, 116 U. S. 207, 211. So of all property owned by the Territory, unless otherwise declared by Congress. Ibid. The act of Mar. 3, 1887 (24 St. at L. 476; as amended, 25 id. 45) made it unlawful for aliens and private corporations to acquire lands in the Territories. Modifications of the enabling act in the constitution adopted by a Territory are presumably accepted when the President and Congress formally admit it into the Union. Romine v. State, 7 Wash. St. 215. The power of the Territories to pass local or special laws was restricted by the Act of July 30, 1886 (24 St. at L. 170.) See Higbee v. Higbee, 4 Utah, 19; Elk Point v. Vaughn, 1 Dak. 113; Territory v. O'Connor, 5 id. 397 Same v. Guyott, 9 Mont. 46; Downes v. Parshall, 3 Wyom. 425. As to the right of suffrage in the Territories, see Nelson v. United States, 30 Fed. Rep. 112; 16 A. G. Op. 115; 30 Cent. L. J. 309, note. Upon admitting a Territory as a State, Congress may naturalize all its foreign born inhabitants as citizens of the United States. Boyd v. Nebraska, 143 U. S. 135.

"The personal and civil rights of the inhabitants of the Territories are secured to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of government, State and national; their political rights are franchises which they hold as privileges in the legislative discretion of Congress." Murphy v. Ramsey, 114 U. S. 15, 44. Article 7 of the U. S. Constitution, preserving the right of trial by jury, has been held to apply only to powers exercised by the Federal government, and not to those of the States and Territories. Walker v. New Mexico & S. P. R. Co. (New Mex.), 34 Pac. Rep. 43. This provision has, however, been held to apply to territorial courts. Bradford v. Territory, 1 Olk. 366.

Cases appealed to the U. S. Supreme Court from a Territory admitted as a State pending the appeal may be remanded to the State court, if no Federal question is involved; if two States are formed from one Territory, it will be remanded to the State which contains the trial county. Rader v. Maddox, 150 U. S. 128; Elliott v. Chicago, &c. Ry. Co., id. 245. Under § 15 of the Act of Mar. 3, 1891 (supra, 330, n. x) appeals now lie from a Territorial Supreme Court to the circuit of appeals. Aztec M. Co. v. Ripley, 151 U. S. 79; 53 Fed. Rep. 7; Badaracco v. Cerf, id. 169. The right to remove a pending cause from the courts of a Territory is not lost upon its admission as a State if a petition for removal is filed in the State Supreme Court before action by it in the cause. Carr v. Fife, 156 U. S. 494; Koeningsberger v. Richmond S. M. Co., 158 U. S. 41; see Burke v. Bunker Hill, &c. Co., 46 Fed. Rep. 644; Sargent v. Kindred, 49 id. 485.

The United States, by transferring or

tories, or other property belonging to the United States." (e) In the territories northwest of the river Ohio, and as separate

(e) It was held, in the case of The Canal Company v. Railroad Company, 4 Gill & Johns. 1, by the Court of Appeals in Maryland, that Congress acted in the government of the District of Columbia and other districts, not as a local legislature, but as the legislature of the Union; and in the case of The State v. New Orleans N. Company, 11 Martin, 38, 309, it was held that the legislature of the Orleans territory could grant a charter binding on the future State of Louisiana. So, in the case of Williams v. The Bank of Michigan, 7 Wend. 539, the New York Court of Errors adjudged that the cower to incorporate a bank was within the scope of the general powers of territorial legislation, conferred upon the Michigan territory by the act of Congress of January 11, 1805. The government of the United States, which can lawfully acquire territory by conquest or treaty, must, as an inevitable consequence, possess the power to govern it. The territories must be under the dominion and jurisdiction of the Union, or be without any government; for the territories do not, when acquired, become entitled to self-government, and they are not subject to the jurisdiction of any state. They fall under the power given to Congress by the Constitution. This was the doctrine and decision of the Supreme Court in the case of the American Ins. Company v. Canter, 1 Peters, 511; and see also 3 Story's Comm. 193-198, 536. In a case submitted to the Supreme Judicial Court of Massachusetts in 1841 (1 Met. 580), it was held that in places ceded to the United States for navy yards, arsenals, &c., and where there is no other reservation of jurisdiction to the state than that of a right to serve civil and criminal process on such lands, the persons residing there were not entitled to the benefit of the common schools of the town, nor liable to any tax assessments, nor acquired any town settlement by a residence therein, nor any elective franchise, as inhabitants of the town.1

1 [In respect to the district containing the site of the national government, the grant of power to Congress is "to exercise exclusive legislation in all cases." In respect to the territories, the grant is "to make all needful rules and regulations concerning the territory and other property belonging to the United States." The nature of, and the limitations upon, the sovereignty of the Union over the territories and the people thereof have become the subjects of angry and dangerous po-

litical discussion. In the celebrated case of Dred Scott, 19 How. 393, a majority of the judges of the Supreme Court were of opinion that the last-mentioned clause of the Constitution applies only to territory within the original states at the time the Constitution was adopted, and that it did not apply to future territory acquired by treaty or conquest from foreign nations. They were also of opinion that the power of Congress over such future territorial acquisitions was not unlimited, that the

surrendering part of its jurisdiction over an offence, does not lose it all. In re Wilson, 140 U. S. 575. A Territorial criminal statute is suspended and not repealed by an Act of Congress upon the same subject, and becomes the law upon the admission of the Territory as a State. In re Nelson, 69 Fed. Rep 712

The exception of "the territories" from an Act of Congress applies only where an organized system of civil government has been established, and not to such a district as Oklahoma. In re Lane, 135 U. S. 443; see United States v. Pridgeon, 153 U. S. 48.

territories were successively formed, Congress adopted and applied the principles of the ordinance of the confederation Congress of the date of the 13th of July, 1787. That ordinance was framed upon sound and enlightened maxims of civil jurisprudence. The organized territories belonging to the United States, and governed under the superintendence of Congress, at present consists of the territory of Columbia. The territories of Michigan and Arkansas were admitted into the Union as states, and upon an equality with the other states, by acts of Congress of June 15, 1836, and January 26, 1837; and the territories of Iowa and Florida were admitted into the Union as states, and upon an equality with the other states, by acts of Congress of March 3, 1845, c. 48, and of December 28, 1846, c. 1; and the territory of Wisconsin was admitted into the Union, on like equality, by acts of Congress of August 6, 1846, c. 89, and March 3, 1847, c. 53; and the republic of Texas, by a joint resolution of Congress of March 1, 1845, and of December 29, 1845.2

{385} It would seem, from these various congressional regulations of the territories belonging to the United States, that Congress have supreme power in the government of them, depending on the exercise of their sound discretion. That discretion has hitherto been exercised in wisdom and good faith, and with an anxious regard for the security of the rights and privileges of the inhabitants, as defined and declared in the ordinance of July, 1787, and in the Constitution of the United States. "All admit," said Chief Justice Marshall, (a) "the constitutionality of a territorial government." But neither the District of Columbia, nor a territory, is a state, within the meaning of the Constitution, or entitled to claim the privileges secured to the members of the Union. This has been so adjudged by

(a) 4 Wheaton, 422.

citizens of the states migrating to a territory were not to be regarded as colonists subject to absolute power in Congress, but as citizens of the United States, with all the rights of citizenship guaranteed by the Constitution, and that no legislation was constitutional which attempted to deprive a citizen of his property on his becoming a resident of a territory. The question arose under an act of Congress

prohibiting slavery in the territory of Upper Louisiana, acquired from France.]

2 States since admitted are California, by act of Sept. 9, 1850; Minnesota, by act of May 11, 1858; Oregon, by act of Feb. 14, 1859; Kansas, by act of Jan. 29, 1861; West Virginia, by act of Dec. 31, 1862; Nevada, by act of March 21, 1864; Nebraska, by act of Feb. 9, 1867, &c.

the Supreme Court. (b) Nor will a writ of error or appeal lie from a territorial court to the Supreme Court, unless there be a special statute provision for the purpose. (c) If, therefore, the government of the United States should carry into execution the project of colonizing the great valley of the Columbia or Oregon River, to the west of the Rocky Mountains, it would afford a {386} subject of grave consideration, what would be the future civil and political destiny of that country. It would be a long time before it would be populous enough to be created into one or more independent states; and in the mean time, upon the doctrine taught by the acts of Congress, and even by the judicial decisions of the Supreme Court, the colonists would be in a state of the most complete subordination, and as dependent upon the will of Congress as the people of this country would have been upon the king and parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not congenial with the free and independent spirit of our native institutions; and the establishment of distant territorial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression. (a)

(b) Hepburn v. Ellzey, 2 Cranch, 445; Corporation of New Orleans v. Winter, 1 Wheaton, 91; [ante, 326, n. 1.] [As to the jurisdiction of territorial courts in admiralty cases, see The City of Panama, 101 U. S. 453. — B.]

(c) Clarke v. Bazadone, 1 Cranch, 212; United States v. More, 3 id. 159.

(a) Cicero, in his Oration for the Manilian Law, c. 14, describes, in glowing colors, the oppressions and abuses committed by Roman magistrates, exercising civil and military power in the distant provinces.

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