nature 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 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

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.

Jurisdiction of the

Courts.

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.

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 cognizance only of crimes committed, and 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. 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 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 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.

do not proceed in rem. 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. Suits for seamen's wages are cognizable 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. This case of seamen's wages the courts of common law admit to be of admiralty jurisdiction; and this is an exception, in favour 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 by material men, in rem and in personam. The proceeding in personam, is always maintainable by those men, but the proceeding in rem is only maintainable by material men when there is a specific lien, as for wages, or for repairs made, or necessaries furnished to a foreign ship, or to a ship in the ports of the state to which she does not belong. The admiralty jurisdiction is essen

a Com. Dig. tit. Adm. F. 6. 3 Blacks. Com. 108. The Court of Admiralty has 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 Dodson's Adm. 369.

b 1 Salk. 34. Str. 761. 937. 1 Lord Raym. 398. 3 Lev. 60. 4 Inst. 134. 142. Com. Dig. tit Adm. E. 15. 2 Ld. Raym. 1206.

c The General Smith, 4 Wheaton, 438. The Jerusalem, 2 Gallison, 345. The Robert Fulton, 1 Paine, 620. Drinkwater v. Brig Spartan, American Jurist, No. 5. 26. Sheppard v. Taylor, 5 Peters' U. S. Rep. 675. If materials for a vessel be furnished in a home port, and a note of hand given by the owner, a libel in the admiralty in personam will not lie. Ramsay v. Allegre, 12 Wheaton, 611. In

tial in all such cases, for the process of a court of common law cannot directly reach the thing in specie. If the law raises a lien for a maritime service, a court of admiralty has power to carry it into effect. The act of Congress of July 20th, 1790, relative to seamen, section 6., has given a specific and summary relief for seamen, in the recovery of wages, by authorizing the district judge, or, in his absence, a magistrate, to summon the master before him, and to attach the vessel as security for the wages.

We have now finished a general survey of the admiralty jurisdiction of the District Courts, in civil and criminal cases, and both as an instance and a prize court. It would not be consistent with the plan of these elementary disquisitions, to give a detailed sketch of the course of proceeding, and of the peculiar practice in the admiralty courts. The proceedings are according to the course of the civil law, and are remarkable for their comprehensive brevity, celerity, and simplicity. Nothing can be more unlike in its process, pleadings, proof, trial, and remedy, than the practice of the courts of admiralty and of the courts of common law."

this last case the extent of admiralty jurisdiction in personam was much discussed, and questioned by Mr. Justice Johnson. But in Willard v. Dorr, 3 Mason, 93. and in Hammond v. Essex F. and M. Ins. Co. 4 Mason, 196., Mr. Justice Story considered it to be the settled jurisdiction of the admiralty, that the master could sue there in personam for his wages, and the seamen in rem as well as in personam for their wages. This appears to be a well-established distinction.

a See vol. 3., as to the lien of material men. Ibid., as to the remedy for seamen's wages.

b For a knowledge of the admiralty practice, I would refer the student to Clerke's Practice of the Court of Admiralty in England, which is a work of undoubted credit; and in 1809, a new edition was published in this country by Mr. Hall, with an appendix of precedents. I would also refer him to the 2d volume of Brown's Civil and Admiralty Law, and to the appendix to the 1st and 2d volumes of Mr. Wheaton's Reports, where he will find the practice of the instance and prize courts digested and summarily explained.