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)

*The division of the court of admiralty into two courts * 354 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. 15.

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 pro* 355 ceedings under the 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 occur. rence 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 1793whether 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; * and it is to be * 356 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. I know of no other definition of prize goods, said Sir William Scott, in the case of the Two Friends, (a) * 357 than that they are goods * 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 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. In the case of

(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.

(c) Ships taken at Genoa, 4 C. Rob. Maisonnaire v. Keating, 2 Gall. 325.

1 Prize 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

388; Anthon v. Fisher, Doug. 649, note;

Anna, ib. 337; The Prize Cases, 2 Black,
635; Jecker v. Montgomery, 13 How. 498.
See the act of June 30, 1864, c. 174, 13
U. S. St. at L. 306, which does not exhaust

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 coöperation with a

(d) 1 Gall. 563.