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as forfeited, for being concerned in the slave trade; and this was also held, on appeal, to be a case not of common law, but of admiralty jurisdiction. So, in the case of The United States v. The Schooner Betsey," it was held, that all seizures under the act of Congress suspending commercial intercourse with a foreign country, and made on waters navigable from sea, by vessels of ten tons burthen, were civil causes of admiralty jurisdiction, being proceedings in rem, and not according to the course of the common law, and were to be tried without a jury. The court said, that the place of seizure being on navigable waters, decided the jurisdiction, and that the act of Congress meant to make seizures on waters navigable from the sea, civil causes of admiralty and maritime jurisdiction. In this last case, the counsel for the claimant contended, that the seizure was made within the body of a county, for a breach of a municipal law of trade, and that though it belonged to the jurisdiction of the District Court, it was not a case of admiralty cognizance. All seizures, in England, for violation of the laws of revenue, trade, or navigation, were tried by a jury in the Court of Exchequer, according to the course of the common law; and though a proceeding be in rem, it is not necessarily a proceeding or cause in the admiralty.

In the case of The Samuel," 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, 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

a 4 Cranch, 443.

b1 Wheaton, 9.

ci Wheaton, 20.

by information, 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," and the Supreme Court there recognised 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. But, in cases of seizures on waters navigable from the sea, by vessels of ten or more tons burthen, 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 made upon navigable waters, and they proceed there to try the fact on which the forfeiture arises by jury. 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, 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 law. Lord Hale said, e that informations of that pature lay exclusively in the exchequer. Congress had a right, in their discretion, to make all such seizures and for feitures 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 20 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." 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 vice-admiralty courts, in this country, when we were colonies, and also in the West Indies, obtained jurisdiction in revenue causes to an extent

a 8 Wheaton, 391.

d Bunb. 236. 6 Thompson, J. 1 Paine, 504. e Harg. Law Tracts, 227. c Attorney General v. Le Merchant, 1 Anst. 52.

totally unknown to the jurisdiction of the English admiralty, and with powers quite as eplarged as those claimed at the present day." 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."

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. 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 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 active practice 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

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. 1. p. 22. 29. 39. Journals of the Assembly of the Colony of New York, vol. 2. 795. 797. 800. VOL. I.

43

of the

Cuurta.

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

(4.) As to the jurisdiction of the instance courts. Jurisdiction The extensive and superior claims of the American instance 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 cogni-
zance only of crimes committed, and things done, and con-
tracts not under seal made super altum mare, and with-
out 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 admiraliy 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 com-
mon law has the preference, and excludes the admiralty.
The admiralty has cognizance of maritime hypothecations
of vessels and goods in foreign ports, for repairs done, or
necessary supplies furnished;" and in the case of Menetone
v. 'Gibbons, it was admitted by the K. B., that the admi-
ralty 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, de-
pended on the subject matter, for here 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 the courts of common law

a Com. Dig. tit. Adm. E. 1. 7. 10. 12. F. 1, 2. 4,5. 3 Black. Com. 106, 107. b Johnson v. Shippen, 1 Salk. 34. Lord Raym. 982. S. C.

3 Term Rep. 267.

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