and though a proceeding be in rem, it is not necessarily a proceeding or cause in the admiralty. In the case of The Samuel, (a) where the vessel and cargo were seized and libelled, and condemned in the District Court of Rhode Island, for a breach of the non-importation laws of the United States, the same objection was made upon appeal to the Supreme Court, and it was again overruled, on the authority of the preceding cases. The same objection was taken in the case of The Octavia; (b) and it was contended, that the word including, in the 9th section of the judiciary act, ought not to be construed cumulatively; and that a suit might be a cause of admiralty and maritime jurisdiction, and yet triable under the common law, proceeding *by informa- *375 tion, instead of the civil law process by libel. The objection was again overruled. The last case that brought up the same point for review and discussion was The Sarah; (c) and the Supreme Court there recognized the marked and settled distinction between the common law and the admiralty jurisdictions of the district courts. In seizures made on land, the District Court proceeds as a court of common law, according to the course of the English exchequer, on information in rem, and the trial of issues of fact is to be by jury. (d) But in cases of seizures on waters navigable from the sea, by vessels of ten or more tons burden, the court proceeds as an instance court of admiralty, by libel in rem, and the trial is by the court. It may now be considered as the settled law of this country, that all seizures under laws of impost, navigation, and trade, if made upon tide waters navigable from the sea, are civil cases of admiralty jurisdiction; and the successive judgments of the Supreme Court, upon this point, are founded upon the judiciary act of 1789. If the act of congress declares them to be cases of admiralty jurisdiction, it is apprehended that this is an extension of admiralty powers beyond the English practice. Cases of forfeiture for breaches of revenue law are cognizable in England in the exchequer upon information, though the seizure was (a) 1 Wheaton, 9. (b) 1 Wheaton, 20. (c) 8 Wheaton, 391. (d) Thompson, J., 1 Paine's Rep. 504. United States v. Fourteen Packages, Gilpin's R. 235. made upon navigable waters, and they proceed there to try the fact on which the forfeiture arises, by jury. (a) Informations are filed in the court of exchequer for forfeiture, upon seizure of property, for breach of laws of revenue, impost, navigation, and trade. In the case of the Attorney-General v. Jackson, (b) the seizure was of a vessel lying in port at Cowes, for breach of the act of navigation, and the proceeding was by information and trial by jury, according to the course of the common * 376 law. Lord Hale said, (c) that informations of that *na ture lay exclusively in the exchequer. Congress had a right, in their discretion, to make all such seizures and forfeitures cognizable in the district courts; but it may be a question, whether they had any right to declare them to be cases of admiralty jurisdiction, if they were not so by the law of the land when the constitution was made. The constitution secures to the citizen trial by jury, in all criminal prosecutions, and in all civil suits at common law, where the value in controversy exceeds twenty dollars. These prosecutions for forfeitures of large and valuable portions of property, under revenue and navigation laws, are highly penal in their consequences; and the government and its officers are always parties, and deeply concerned in the conviction and forfeiture. And if, by act of congress, or by judicial decisions, the prosecution can be turned over to the admiralty side of the District 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. It is probable, however, that the judiciary act of 1789 did not intend to do more than 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 was competent to give it." 1 We have seen that it is competent to As to the construction of the last-mentioned clause of the constitution, see ante, (p. 869,) note (1). 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 vice-admiralty 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 jurisdiction of the English ad- *377 miralty, 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 vice-admiralty 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 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. (c) It is certain, however, that (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, p. 158. (b) Journals of Congress, vol. i. pp. 22, 29, 39. Journals of the Assembly of the Colony of New York, vol. ii. pp. 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 edit. p. 391. sec. 9. (e) Constitution, art. 3, sec. 2. Act of congress of September 24th, 1789, c. 20, Vide supra, pp. 304, 372. Mr. Justice Story (3 Com. Const. U. S. 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 the state courts take an extensive and unquestionable 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 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, any thing 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 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 courts. 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 v. 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 A more enlarged jurisdiction appears to be now established. See ante, p. [369,] note (1.) * practice of the admiralty, as it once existed in the middle ages, before its territories had been invaded and partly *378 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 of the instance courts. Jurisdiction stance The extensive and superior claims of the American of the incourts of admiralty, as courts of civil maritime juris- courts. diction, 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 admi (a) Com. Dig. tit. Adm. E. 1, 7, 10, 12, F. 1, 2, 4, 5. 3 Blacks, Com. 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's U. S. Rep. 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 was essentially a maritime service, and gave a lien, notwithstanding the commencement or termination 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 See pp. 364, 367, 369, 370, 371, 378, 379, of this volume. The act of congress, 26th February, 1845, (5 Statutes at Large, 726,) conferring upon the district courts the same admiralty jurisdiction in matters of contract and tort, concerning ves waters. |