191 U.S. BREWER, J., FULLER, C. J., and PECKHAM, J., dissenting.

Again, in Ex parte Reggel. 114 U. S. 642, 651, Mr. Justice Harlan used these words:

"That Commonwealth [Pennsyania] has the right to establish the forms of pleadings and process to be observed in her own courts, in both civil and criminal cases, subject only to those provisions of the Constitution of the United States involving the protection of life, liberty and property in all the States of the Union."

So Mr. Justice White, speaking for the court, in Iowa Central Railway Company v. Iowa, 160 U. S. 389, 393, declared: "But it is clear that the Fourteenth Amendment in no way undertakes to control the power of a State to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice and affords fair opportunity to be heard belore the issues are decided."

See, also, Chicago, Burlington & Quincy Railroad v. Chicago, 166 U. S. 226; Backus v. Fort Street Union Depot Company, 169 U. S. 557, 570; Brown v. New Jersey, 175 U. S. 172; League v. Texas, 184 U. S. 156, 158.

But it is said that while this is generally true there is this limitation, that the State cannot, as to claims against vessels, adopt the procedure now obtaining in admiralty cases, or, without actual notice to the owner, seize and sell a vessel in satisfaction of a lien. Of course, it is not necessary to determine that question, because, as I have stated, there was notice to the owner and an appearance by her, and such proceeding was authorized by the statute. But even if it was not so authorized, and was simply a direct proceeding to enforce a lien upon the vessel and sell it in satisfaction thereof, I insist that the state courts may entertain jurisdiction. It was held in Arndt v. Griggs, 134 U. S. 316, that a State may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defendant, being a non-resident, is only brought into court by publication. The question was discussed at length, the authorities

BREWER, J., FULLER, C. J., and PECKHAM, J., dissenting. 191 U.S.

reviewed, and the conclusion reached that the State had such jurisdiction over real estate within its limits that it could determine the title without the personal presence of the owner. But has the State any less jurisdiction over personalty situated within its borders than it has over real estate? Upon what theory of state power can it be held that à State may divest a non-resident of his title to real estate and not a nonresident of his title to personal property? There seems to be a contention that there is a peculiar sanctity in the form of admiralty proceedings which excludes the States from resort to them, but the jurisdiction of the admiralty courts does not depend on the form of the procedure. Congress may if it see fit change entirely that procedure. As said by Chief Justice Taney in The Genesee Chief, 12 How. 443, 460:

"The Constitution declares that the judicial power of the United States shall extend to 'all cases of admiralty and maritime jurisdiction.' But it does not direct that the court shall proceed according to ancient and established forms, or shall adopt any other form or mode of practice. The grant defines the subjects to which the jurisdiction may be extended by Congress. But the extent of the power as well as the mode of proceeding in which that jurisdiction is to be exercised, like the power and practice in all the other courts' of the United States, are subject to the regulation of Congress, except where that power is limited by the terms of the Constitution or by necessary implication from its language. In admiralty and maritime cases there is no such limitation as to the mode of proceeding, and Congress may therefore in cases of that description give either party right of trial by jury, or modify the practice of the court in any other respect that it deems more conducive to the administration of justice."

Suppose Congress should exercise this power and substitute for the procedure in admiralty courts the common law practice, and make it the only method of procedure therein. What would become of the argument that the State cannot resort to the procedure obtaining in admiralty courts for enforcing

191 U. S. BREWER, J., FULLER, C. J., and PECKHAM, J., dissenting,

the rights of claimants? Must it then desist from common law remedies because they have been adopted in admiralty and go back to that form of procedure now obtaining in the admiralty courts? Can it be that the power of a State to vest jurisdiction in one of its courts depends upon the form of procedure which it adopts?

Why should we be so anxious to drive parties having small claims away from their local courts to courts not infrequently held at a great distance? Why should we be so anxious to force litigants into a court where there is no constitutional right to a trial by jury? I for one believe that the right of trial by jury is not to be taken away from a claimant unless it be a case coming clearly within the well-established limits of equity and admiralty cases. I do not like to see these provisions which have so long been the boast of our AngloSaxon system of procedure frittered away by either legislative or judicial action.

Further, it seems a great hardship that a party who has been brought into a court of general jurisdiction, with full opportunity to litigate the claim of the plaintiff, and has carried the case through all the courts of the State without ever disputing its validity, should now obtain a reversal of the entire proceedings when such reversal may operate to prevent the collection of the debt. By section 33 of chapter 418, heretofore referred to, the lien expires at the expiration of twelve months from the time the debt was contracted. Of course, the lien is now gone. The canalboat has very likely disappeared and the owner may be entirely irresponsible.

Even if these objections to the opinion and judgment of the court are wholly without foundation, there is still another, broader and deeper. I do not believe that under the true interpretation of the Constitution the admiralty jurisdiction of the Federal courts extends to contracts for the repairs of vessels engaged wholly in commerce within a State. I recognize the fact that this court has decided in a series of cases, commencing with The Genesee Chief, 12 How. 443, that

BREWER, J., FULLER, C J., and PECKHAM, J., dissenting. 191 U. S. the admiralty jurisdiction of the Federal courts is not limited by tide waters, as admiralty jurisdiction was understood to be limited both in Great Britain and in this country at the time the Constitution was framed, but extends to all navigable waters of the United States, and I have no disposition to question the correctness of those decisions, or in any way limit their scope. But what is admiralty? It is the law, not of the water, but of the seas.

As said in Edwards on Admiralty Jurisdiction, p. 29:

"But its jurisdiction may be said to rest generally on the following considerations: First, the nature of the property to be adjudicated upon; secondly, the question to be decided; thirdly, the origin of the cause; and fourthly, the locality; and these must be of the sea to give the admiralty a jurisdiction."

So also in Edwards v. Elliott, 21 Wall. 532, 553, is this declaration of this court:

"Maritime contracts are such as relate to commerce and navigation, and unless a contract to build a ship is to be regarded as a maritime contract, it will hardly be contended that a contract to furnish the materials to be used in accomplishing that object can fall within that category, as the latter is more strictly a contract made on land, and to be performed on land, than the former, and is certainly one stage further removed from any immediate and direct relation to commerce and navigation."

It grew up out of the fact that the ocean is not the territorial property of any nation, but the common property of all; that vessels engaged in commerce between the different nations ought, so far as possible, to be subject to a uniform law, and not annoyed by the conflicting local laws and customs of the several nations which they visit. I do not mean that the several maritime nations did not establish different rules, or that there is not some dissimilarity in their maritime laws, for as long as each nation is the master of its own territory it may legislate as it sees fit in reference to maritime matters coming within its jurisdiction, and yet this does not abridge the fact

191 U.S. BREWER, J., FULLER, C. J., and PECKHAM, J., dissenting.

that admiralty grew up out of the thought of having a common law of the seas. It was well said by Mr. Justice Bradley in The Lottawanna, 21 Wall. 558, 572:

"Perhaps the maritime law is more uniformly followed by commercial nations than the civil and common laws are by those who use them. But, like those laws, however fixed, definite and beneficial the theoretical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have. But the actual maritime law can hardly be said to have a fixed and definite form as to all the subjects which may be embraced within its scope. Whilst it is true that the great mass of maritime law is the same in all commercial countries, yet, in each country, peculiarities exist either as to some of the rules or in the mode of enforcing them. Especially is this the case on the outside boundaries of the law, where it comes in contact with or shades off into the local or municipal law of the particular country and affects only its own merchants or people in their relations to each other. Whereas, in matters affecting the stranger or foreigner, the commonly received law of the whole commercial world is more assiduously observed-as, in justice, it should be. No one doubts that every nation may adopt its own maritime code. France may adopt one, England another, the United States a third; still, the convenience of the commercial world, bound together, as it is, by mutual relations of trade and intercourse, demands that, in all essential things wherein those relations bring them in contact, there should be a uniform law founded on natural reason and justice. Hence the adoption by all commercial nations (our own included) of the general maritime law as the basis and groundwork of all their maritime regulations. Each State adopts the maritime law, not as a code having any independent or inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption

VOL. CXCI-4