5 How. 410-440

Notes on U. S. Reports.

578

liability under Federal statute no bar to prosecution under State law for uttering counterfeit certificate of pension commissioner; State v. Jackson, 21 La. Ann. 575, sustaining prosecution by information, holding fifth amendment not applicable to State courts; In re Truman, 44 Mo. 183, holding passing counterfeit treasury notes an offense indictable by both State and Federal authority; Bohanan v. State, 18 Neb. 77, 53 Am. Rep. 806, 24 N. W. 399, holding Federal constitutional provision against putting defendant twice in jeopardy inapplicable to State courts; State v. Whittemore, 50 N. H. 248, 9 Am. Rep. 199, holding liability under Federal laws no bar to punishment under State law for perjury committed in naturalization proceedings in State court; People v. Welch, 141 N. Y. 276, 38 Am. St. Rep. 800, 36 N. E. 331, 24 L. R. A. 121, sustaining concurrent jurisdiction of State with Federal courts over crimes committed on navigable waters within limits of State; Territory v. Coleman, 1 Or. 192, 75 Am. Dec. 555, holding offense of selling liquor to Indians punishable both by territorial and Federal authorities; Craig v. Kline, 65 Pa. St. 409, 3 Am. Rep. 643, sustaining State police regulations relating to navigable waters, notwithstanding Federal authority to regulate commerce; State v. Rankin, 4 Cold. 152, 155, reviewing cases, holding prior acquittal by Federal court-martial no bar to prosecution by State authorities for murder; State v. Norman, 16 Utah, 464, 466, 52 Pac. 989, holding Federal laws punishing adultery in territories no bar to punishment under State laws also; Jett v. Commonwealth, 18 Gratt. 953, 954, 956, 967, holding passing counterfeits an offense punishable by both State and Federal governments; In re Murphy, 5 Wyo. 305, 306, 40 Pac. 400, collecting cases, holding power of territory to define and punish bigamy not affected by Federal legislation upon same subject in territories.

Cited also in Moore v. Illinois, 14 How. 21, 14 L. 309, dissenting opinion, majority holding as stated, supra; arguendo, in SlaughterHouse Cases, 16 Wall. 125, 21 L. 424, dissenting opinion, majority holding monopoly created by State legislature not unconstitutional; Ex parte Lange, 18 Wall. 201, 21 L. 887, dissenting opinion, majority holding, after execution of judgment satisfying one of the alternative statutory penalties, further sentence cannot be imposed; Coleman v. Tennessee, 97 U. S. 537, 539, 24 L. 1129, 1130, dissenting opinion, majority holding conviction of murder by court-martial, of soldier, barred subsequent conviction by State court; Tennessee v. Davis, 100 U. S. 278, 25 L. 655, dissenting opinion, majority holding Federal officer indicted for murder, where killing done in discharge of duty, entitled to removal to Federal court; arguendo, in Spies v. Illinois, 123 U. S. 166, 31 I. 86, 8 S. Ct. 24, collecting cases, distinguishing between first ten and later amendments; Brown v. Evans, 8 Sawy. 493, 17 Fed. 915, holding criminal prosecution for assault and battery no bar to damage suit; Campbell v. United States, 4 Fed. Cas. 1203, 1204, sustaining power of Federal government to

punish circulation of counterfeits; Philadelphia, etc., Co. v. Morrison, 19 Fed. Cas. 491, holding grants of power cannot be implied from early amendments, they being merely restrictive; Jacoway v. Denton, 25 Ark. 666, dissenting opinion, majority holding constitutional prohibition from taking private property without compensation, applicable to States; Van Buren v. Wells, 53 Ark. 374, 22 Am. St. Rep. 217, reviewing cases, State v. Oleson, 26 Minn. 517, 5 N. W. 969, and State v. Sly, 4 Or. 279, holding liability under State statute for same offense no bar to conviction under municipal ordinance; Wragg v. Penn Township, 94 Ill. 17, 34 Am. Rep. 202, reviewing cases, holding same act punishable as offense against township, and as offense against public generally; Ambrose v. State, 6 Ind. 352, holding defendant punishable under State law for retailing liquors, notwithstanding grant of municipal license to him; Commonwealth v. Walker, 108 Mass. 314, and Abbott v. People, 75 N. Y. 602, holding bankrupt's criminal liability in Federal court for obtaining goods with intent to defraud, no bar to State prosecution; arguendo, in Trombley v. Humphrey, 23 Mich. 482, 9 Am. Rep. 102, holding certain amendments restrictions on Federal power only; arguendo, in Crane v. Reeder, 28 Mich. 533, 15 Am. Rep. 228, upon right of removal after several trials had in State court; Weaver v. Fegely, 29 Pa. St. 29, 70 Am. Dec. 153, sustaining power of State legislature to regulate weights and measures in absence of Federal regulation; Smith v. United States, 1 Wash. Ter. 270, intimating, arguendo, that same act may constitute offense against both Federal and territorial authority. See also note to 41 Am. Dec. 604, collecting cases; and note to 13 Am. Rep. 276.

Constitutional law. An individual shall not be put twice in jeopardy for the same offense, per McLean, J., dissenting, p. 439.

Cited, arguendo, in Fay v. Parker, 53 N. H. 387, 16 Am. Rep. 325, and Pegram v. Stoetz, 31 W. Va. 296, 6 S. E. 526, discussing question of vindictive damages.

Distinguished In re Loney, 134 U. S. 375, 33 L. 951, 10 S. Ct. 585, holding power of punishing for perjury belongs exclusively to government in whose tribunal offense was committed; Brown v. Walker, 161 U. S. 606, 40 L. 824, 16 S. Ct. 650, holding Federal statute granting witness immunity from prosecution for matters testified to before inter-state commerce commission, affords immunity from State prosecution; Ex parte Houghton, 7 Fed. 659, 663, re-reported, 8 Fed. 898, 902, denying State court jurisdiction to punish offense of passing counterfeit national bank notes; Arkansas v. Kirkpatrick, 32 Ark. 121, reviewing cases, denying State court's jurisdiction of offense of making false affidavit under homestead act of Congress; People v. Kelly, 38 Cal. 150, 99 Am. Dec. 362, holding State court has no jurisdiction of perjury committed before register of Federal land office; Voorhies v. Frisbie, 25 Mich. 479,12 Am. Rep. 293, re-reported in 8 Bank. Reg. 154, denying State court's jurisdiction

5 How. 441-504.

Notes on U. S. Reports.

580

of bill maintainable under Federal banrupt act; Moundsville v. Fountain, 27 W. Va. 197, reviewing cases, where act claimed to be punishable under both city ordinance and State law.

Miscellaneous.- Cited in Legal Tender Cases, 12 Wall. 619, 20 L. 334, dissenting opinion, majority sustaining legal tender act. Erroneously cited in Perkins v. Corbin, 45 Ala. 117, 6 Am. Rep. 700, instead of preceding case.

5 How. 441-504, 12 L. 226, WARING v. CLARKE.

Admiralty.— Extent and instances of English admiralty jurisdiction discussed, pp. 452, 453.

See note to 32 Am. Dec. 65.

Words and phrases. According to decisions of English common-law courts since the restraining statutes of Richard II and Henry IV, "high seas means that portion of the sea which washes the open coast, p. 453.

Cited in Morgan v. Nagadish, 40 La. Ann. 252, 3 So. 639, construing State statute, holding banks of a bayou not the sea-shore; People v. Supervisors, 73 N. Y. 397, construing "main sea,” as used in compact, fixing boundary between two States.

Admiralty jurisdiction.- Discussion of extent of jurisdiction of colonial admiralty courts, pp. 454, 455.

Cited in Jackson v. The Magnolia, 20 How. 298, 15 L. 911, discussing admiralty jurisdiction over navigable streams; In re Garnett, 141 U. S. 16, 35 L. 635, 11 S. Ct. 844, holding original admiralty jurisdiction of State extended to inland navigable streams; The Lottawanna, 21 Wall. 601, 22 L. 670, dissenting opinion, arguendo, majority refusing to allow lien claimed under State law.

Admiralty jurisdiction. The constitutional grant of admiralty power to the Federal courts is neither to be limited nor interpreted by English admiralty jurisdiction in England, when Constitution was adopted, pp. 452, 459.

Cited, and this holding relied upon, in New Jersey, etc., Nav. Co. v. Merchants' Bank, 6 How. 392, 12 L. 486, sustaining jurisdiction of libel in personam, for money lost by steamer burning in Long Island sound; The Belfast, 7 Wall. 636, 19 L. 269, holding Constitution referred to jurisdiction of the State admiralty courts; Insurance Co. v. Dunham, 11 Wall. 25, 20 L. 97, holding American admiralty jurisdiction not confined to limits of the English jurisdiction; Taylor v. The Royal Saxon, 1 Wall. Jr. 323, F. C. 13,803, sustaining jurisdiction of American admiralty courts to pass upon disputed title to ships; Cunningham v. Hall, 1 Cliff. 53, F. C. 3,481, holding American admiralty jurisdiction embraces former subjects of the State jurisdictions, not only those of the English courts; The Richard Busteed, 1 Sprague, 446, F. C. 11,764, collecting cases, and

Haslett v. The Enterprise, 11 Fed. Cas. 784, holding English admiralty jurisdiction no criterion for that of the United States; Brookman v. Hamill, 43 N. Y. 562, 3 Am. Rep. 737, holding claim for wharfage against sea-going vessel a maritime claim. Cited also, arguendo, in Atkins v. The Disintegrating Co., 18 Wall. 304, 21 L. 845, collecting cases, holding jurisdiction of non-resident obtainable in admiralty by process of foreign attachment; arguendo, in The Congress, 1 Biss. 44, F. C. 3,099, discussing circumstances under which Admiralty Court has jurisdiction of case of general average; The Huntress, 2 Ware (Dav.) 97, 102, note, F. C. 6,914, fully discussing this subject; The Pizarro v. Matthias, 19 Fed. Cas. 787, holding, arguendo, libel is maintainable in rem or in personam, for collision at sea; arguendo, in The City of Toledo, 73 Fed. 222, 223, discussing history of American admiralty jurisdiction; arguendo, in Keating v. Sprink, 3 Ohio St. 108, 62 Am. Dec. 217, holding admiralty and common-law courts had concurrent jurisdiction in certain cases; arguendo, in State v. County Treasurer, 4 S. C. 537, dissenting opinion, majority setting aside prohibition to restrain collection of taxes.

Admiralty jurisdiction.—The subject-matter in cases of contract, and locality in cases of tort, are the true tests of admiralty jurisdiction of United States courts; neither trial by jury nor concurrent jurisdiction of common-law courts being any test, or having effect to restrict the jurisdiction in either class of cases, pp. 452, 459, 460.

Cited, and this holding relied upon, in New Jersey, etc., Nav. Co. v. Merchants' Bank, 6 How. 394, 430, 12 L. 487, 502, and Leathers v. Blessing, 105 U. S. 630, 26 L. 1194, holding admiralty jurisdiction, in case of tort, determined by locality; Gloucester Ins. Co. v. Younger, 2 Curt. 333, F. C. 5,487, collecting cases, sustaining admiralty jurisdiction over marine insurance policies; The Sarah Jane, 1 Low. 204, F. C. 12,349, collecting cases, holding jurisdiction includes libel for wages, where vessel plying on navigable waters; Holmes v. Oregon, etc., Ry., 6 Sawy. 266, 5 Fed. 77, libel for damages for death of a person; Philadelphia, etc., Tow-Boat Co. v. Philadelphia, etc., R. R., 19 Fed. Cas. 475, affirmed in Philadelphia, etc., R. R. v. Philadelphia, etc., Tow-Boat Co., 23 How. 215, 16 L. 435, case of injury to tow-boat by running against pile left in river; The City of Toledo, 73 Fed. 222, 223, holding, where certain statute, allows jury trial in certain cases, verdict is merely advisory.

Cited also, arguendo, in Mackey v. Enzensperger, 11 Utah, 159, 39 Pac. 543, dissenting opinion, majority sustaining State law permitting verdict upon concurrence of nine jurymen in civil cases.

Federal courts Common-law remedy. The clause in the ninth section of the judiciary act, saving to suitors in all cases, a common-law remedy when the common-law is competent to give it,

5 How. 441-504

Notes on U. S. Reports.

582

means that in cases of concurrent jurisdiction in admiralty and at common law, the jurisdiction in the latter is not taken away, p. 461. The following citing cases indorse and rely upon this holding: Ashbrook v. The Golden Gate, Newb. 302, F. C. 574, holding the common-law remedy saved, not given, by the statute; Home Ins. Co. v. The Northwestern Packet Co., 32 Iowa, 243, 7 Am. Rep. 190, collecting cases, sustaining State courts' jurisdiction of action at law upon bill of lading, for damages; Commissioners v. Brandt, 26 La. Ann. 31, sustaining constitutionality of State navigation law, holding same to be a police regulation; State v. Voorhies, 39 La. Ann. 502, 4 Am. St. Rep. 276, 2 So. 39, collecting cases, sustaining State's jurisdiction of action in personam, against owners of vessel, coupled with sequestration; Baker v. Hoag, 7 N. Y. 562, 59 Am. Dec. 436, sustaining concurrent jurisdiction of State court to enforce sailor's lien on goods sunk in river; Chase v. American Steamboat Co., 9 R. I. 433, 11 Am. Rep. 282, reviewing cases, holding the saving was of remedies, where applicable, and State court had jurisdiction of suit for damages for death in bay.

Cited also in The Lottawanna, 21 Wall. 584, 22 L. 665, dissenting opinion, arguendo, majority refusing to allow lien for supplies claimed under State law; arguendo in Hill v. The Golden Gate, 12 Fed. Cas. 163, collecting cases, holding Admiralty Court, having exclusive jurisdiction in rem, could alone pass title free from liens by judicial sale; Kalleck v. Deering, 161 Mass. 471, 42 Am. St. Rep.. 423, 37 N. E. 451, where State court refused to be influenced by admiralty doctrines in suit for damages; Warner v. Uncle Sam, 9 Cal. 732, holding leading case does not decide against concurrent jurisdiction of State court in admiralty. See also good discussion in note to 62 Am. Dec. 242.

Admiralty jurisdiction of Federal courts, in cases of tort or collision, or where dependent upon locality, extends to tide waters, as far as the tide ebbs and flows, whether infra corpus comitatus or not, p. 464.

Cited, and application of rule extended, in The Genesee Chief v. Fitzhugh, 12 How. 456, 13 L. 1064, Jackson v. The Magnolia, 20 How. 298, 15 L. 911, Philadelphia, etc., R. R. v. Philadelphia, etc., Tow-Boat Co., 23 How. 215, 16 L. 435, The Propellor Commerce, 1 Black, 580, 17 L. 109, collecting cases, Leathers v. Blessing, 105 U. S. 630, 26 L. 1194, The North Cape, 6 Biss. 508, F. C. 10,316, collecting cases, The Barque Yankee v. Gallagher, McAll. 473, F. C. 18,124, United States v. Wilson, 3 Blatchf. 437, F. C. 16,731, collecting cases, and The Sarah Jane, 1 Low. 204, F. C. 12,349, all holding admiralty jurisdiction extends to inland rivers and lakes and that exception of infra corpus comitatus no longer applicable to navigable waters, even beyond tide water; The Hine v. Trevor, 4 Wall. 563, 18 L. 453, reviewing cases sustaining admiralty jurisdiction in Mississippi river, above tide water; The Belfast, 7 Wall. 637, 639, 19 L. 269, 270,