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

This enlarged extension of the civil jurisdiction of the admiralty, as declared in the Circuit Court in Massachusetts, remains to be discussed, and definitively settled, in the Supreme Court. It has been subsequently and frequently asserted in the Circuit and District Courts. Thus, in Plummer v. Webb," the jurisdiction of the admiralty over all maritime contracts, upon the doctrine of the case of De

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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 Drinkwater v. The brig Spartan, in the District Court for Maine, the doctrine in De Lovio v. Boit was explicitly recognised as sound. It was declared to have been before the public for twelve years, without having its reasoning met, or its conclusions shaken; and it was adjudged in this case, 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,) and 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. 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. 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, touch

a American Jurist, No. 5. p. 26. 6 3 Mason, 16. 17.

c The sloop Mary, 1 Paine's R. 673. Wilmer v. The Smilax, and Davis & Brooks v. Brig Seneca, in the Circuit Court. Penn. district.

d 5 Mason, 465.

ing 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 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. 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, that the admiralty possesses authority to decree restitution of a ship unlawfully withheld by a wrongdoer from the real owner.

In the cases 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. Notwithstanding the English practice to the contrary, the admiralty in this country claim, to possess a rightful jurisdiction equally over petitory and possessory suits.

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 that the argument for the extension of the civil jurisdiction of the admiralty beyond 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.

a Haly v. Goodson, 2 Merivale's R. 77. Lord Stowel, in the cases of the Aurora, 3 Rob. Adm. R. 133. 136. The Warrior, 2 Dodson, 288. and The Pitt, 1 Hagg. Adm. R. 240. 2 Bro. Civ. and Ad. Law, 114, 115.

b In the matter of Blanshard, 2 B. & Cress. 244. c The schooner Tilton, 5 Mason, 465.

It has been made a question, what were “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 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 burthen, 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 tire right of a common law remedy, where the common law is competent to give it.”

The act of Congress is rather ambiguous in its meaning, and leaves it uncertain whether it meant to consider seizures on tide waters, in ports, harbours, creeks, and arms of the sea, as cases of admiralty and maritime jurisdiction, or as

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 burthen. 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 are a 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 French privateer was libelled in the District Court of NewYork, 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, harbour, or water, within the precincts of any county of a

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, the vessel was libelled in the District Court,


a 3 Dallas, 297,

b 2 Cranch, 406.

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