trict 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 seen that it is competent to give it, because, under the vigorous system of the English law, such prosecutions in rem are in the Exchequer, according to the course of the common law; and it may be doubted whether the case of the La Vengeance, on which all the subsequent decisions of the Supreme Court have rested, was sufficiently considered. There is, however, much colonial precedent for this extension of admiralty jurisdiction. The viceadmiralty courts, in this country, when we were colonies, and also in the West Indies, obtained jurisdiction in revenue causes to an extent totally unknown to the jurisdic- * 377 tion 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 viceadmiralty 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

(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.

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

2 Ante, 369, n. 1.

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

courts.

(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 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 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 r. 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."

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.

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 * had 378 been invaded and partly subdued by the bold and free spirit of the courts of common law, armed with the protecting genius and masculine vigor of trial by jury.

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) The admiralty has cognizance of

(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 termina1 Ante, 369, n. 1.

maritime hypothecations of vessels and goods in foreign ports, for repairs done, or necessary supplies furnished; (b) and in the 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 * 379 the courts of common law * 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) y1 Suits for seamen's wages are cognition 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 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

yl 528 Pieces of Mahogany, 2 Low. 323.

zable 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) 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

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.

(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, 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.

1 Ante, 369, n. 1.