any statute, and under this general delegation of admiralty powers, have exercised criminal jurisdiction over maritime crimes and offences. But the courts of the United States have been reluctant to assume the exercise of any criminal jurisdiction in admiralty cases, which was not specially conferred by an act of Congress. In the case of the United States v. M'Gill, the defendant was indicted and tried in the Circuit Court at Philadelphia, for murder committed on the high seas, and the jurisdiction of the court was much discussed. One of the judges observed, that he had often decided, that the federal courts had a common law jurisdiction in criminal cases; but he considered, that the crime charged (a mortal stroke having been given on the high seas, and the death in consequence of it happening on land) was not a case of admiralty and maritime jurisdiction, within the meaning of the constitution, or of the English admiralty law, and the prisoner, on account of this defect of jurisdiction, was acquitted. The other judge of the court gave no opinion, whether that case was one of admiralty and maritime jurisdiction, upon the general principles of the admiralty and maritime law; and he confined himself to the 8th section of the penal act of congress of April 30th, 1790, ch. 9; and the case charged was not, by that act, within the jurisdiction of the Circuit Court.

Afterwards, in the case of The United States v. Bevans, the Supreme Court, on a case certified from the Massachusetts circuit, decided, that, even admitting that the United States had exclusive jurisdiction of all cases of admiralty and maritime jurisdiction, and admitting that a murder committed on the waters of a state where the tide ebbs and flows, was a case of admiralty and maritime jurisdiction, yet that congress had not, by the Sth section of the act of 1790, ch. 9. " for the punishment of certain crimes against the United States," conferred on the courts of the United States jurisdiction over

a 4 Dallas, 426.

VOL. I.

46

b 3 Wheaton, 336.

such murder. The act confined the federal jurisdiction to murder and other crimes and offences committed upon the high seas, or in any river, harbour, basin, or bay, out of the jurisdiction of any particular state; and the murder in question was committed on board a ship of war of the United States in Boston harbour, and within the jurisdiction of Massachusetts. There was no doubt of the competency of the powers of Congress to confer such a jurisdiction in the case of a crime committed on board a ship of war of the United States, wherever the ship might be; but no such power had, to that extent, been as yet exercised by Congress; and it must have followed of course, in that case, that the state courts had jurisdiction of the crime at common law, for it was committed within the territory of the state. It was admitted to be a clear point, that the state courts had cognizance of crimes and offences committed upon tide waters, in the bays and harbours within their respective territorial jurisdictions. And in the case of The United States v. Wiltberger, it was decided, that the courts of the United States had no jurisdiction of the crime of manslaughter committed by the master upon one of the seamen on board a merchant vessel of the United States, lying at anchor in the river Tigris, within the empire of China, because the act of Congress of the 29th of April, 1790, ch. 9. sec. 12. did not reach such a case, and was confined to the crime committed on the high seas. Upon the principle of that decision, the offender could not be judicially punished, except by the Chinese government; and it was said, upon the argument of the case, that China disclaimed the jurisdiction. The law was defective upon this point, and a remedy was provided by the act of Congress of 3d March, 1825, c. 67, which declared, that if any offence shall be committed on board of any vessel belonging to a citizen of the United States, while lying in a foreign port or place, the offence shall be

a 5 Wheaton, 76.

cognizable in the Circuit Courts of the United States, equally as if it had been committed on board of such vessel on the high seas, provided that if the offender shall be tried and acquitted or convicted in the foreign state, he shall not be subject to another trial here. The act provided also for the punishment of many other crimes against the United States committed upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay, within the admiralty jurisdiction of the United States. But the crimes in any river, bay, &c. to be cognizable, must be committed out of the jurisdiction of any particular state, except it be conspiracies to defraud insurers; and it further provided, that the act was not to deprive the state courts of jurisdiction over the same offences. As the state courts have jurisdiction of offences committed within arms of the sea, creeks, havens, basins, and bays, within the ebb and flow of the tide, and within the body of a county, the jurisdiction of the Circuit Courts of the United States was not extended by the statute to those cases."

It appears from these cases, that though the general cognizance of all cases of admiralty and maritime jurisdiction, as given by the constitution, extends equally to the criminal and civil jurisdiction of the admiralty, as known to the English and maritime law when the constitution was adopted; yet that without a particular legislative provision in the case, the federal courts do not exercise criminal jurisdiction as courts of admiralty over maritime offences. In the case of The United States v. Coolidge, it was insisted that the admiralty was a court of extensive criminal as well as civil jurisdiction, and that offences of admiralty jurisdiction were exclusively cognizable by the United States; and that a marine tort on the high seas, as for instance, the forcible rescue of a prize, was punishable by the admiralty, in the absence of positive law, by fine and imprisonment. The

a United States v. Grush, 5 Mason, 290.

b 1 Gallison, 488.

decision of the Supreme Court was otherwise; and it seems now to be settled, that the federal courts, as courts of admiralty, are to exercise such criminal jurisdiction as is conferred upon them expressly by acts of Congress, and that they are not to exercise any other. This limitation does not, however, apply to private prosecutions in the District Court, as a court of admiralty or prize court, to recover damages for a marine tort. Such cases are cognizable in the admiralty, by virtue of its general admiralty jurisdiction, and so it was held in the case of The Amiable Nancy.

The civil jurisdiction of the English admiralty is according to the forms of the civil law, and before a single judge; but the criminal jurisdiction, in which all maritime felonies are tried, is in the Court of Admiralty sessions, before commissioners of oyer and terminer, being the judge of the Court of Admiralty, and three or four associates. It has cognizance of all crimes and offences committed at sea, or on the coasts, out of the body of a county; and in that court, the proceedings are by indictment, and trial by jury, according to the course of the common law. The criminal jurisdiction of the English admiralty received its present modification by the act of 28 Hen. VIII. c. 15.; but it had a very extensive criminal jurisdiction, coeval with the first existence of the court. It proceeded by indictment and petit

a 1 Wheaton, 415.

b 3 Wheaton, 546. It was held, in Chamberlain v. Chandler, 3 Mason, 242, that the admiralty had jurisdiction of personal torts and wrongs committed on a passenger on the high seas, by the master of the ship, whether the torts were by direct force, as trespasses, or were consequential injuries. So, in Plumer v. Webb, 4 Mason, 380, it was held, that a father or master might sue in the admiralty for wages earned by maritime service, and for torts committed on the high seas, as in the abduction of a minor or apprentice, per quod servitium amisit. If the tortious act happens in port, but is a continuing injury from sea, or if there be a trespass at sea upon property, and continued upon land, it becomes a maritime tort of admiralty jurisdiction.

c 4 Blacks. Com. 265.

jury, before, and independent of, the statute of Hen. VIII. ; and all criminal offences cognizable by the admiralty, and not otherwise provided for by positive law, are punishable by fine and imprisonment. The better opinion, however, is, that the ancient common law, or primitive criminal jurisdiction of the English admiralty, has become obsolete, and has not been in exercise for the last one hundred years; and that no offence of a criminal nature can be tried there, which does not fall within the jurisdiction specially conferred by the statute of Hen. VIII. There is, therefore, a very strong precedent for the doctrine of the Supreme Court of the United States, which refuses to the federal courts any criminal jurisdiction in admiralty cases, not derived from statute. And to whatever extent the criminal jurisdiction of the admiralty may extend, the judiciary act of 1789 provides, that the trial of all issues in fact in the District Courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.

(3.) As to the division line between the jurisdiction of the admiralty, and of courts of common law.

There has existed a very contested question, and of ancient standing, touching the proper division or boundary line between the jurisdiction of the courts of common law and the courts of admiralty. The admiralty jurisdiction in England originally extended to all crimes and offences committed upon the sea, and in all ports, rivers, and arms of the sea, as far as the tide ebbed and flowed. Lord Coke's doctrine was, that the sea did not include any navigable waters within the body of a county; and Sir Matthew Hale supposed, that prior to the statute of 35th Edw. III., the common law and the admiralty exercised jurisdiction concur

d

"

Limits of

admiralty ju

risdiction.

a 4 Rob. Rep. 74. note.

b 2 Bro. Civ. and Adm. Law, appendix, No. 3. Opinion of Law Officers of the Crown, ibid.

c 4 Inst. 135.

d 2 Hale's P. C. ch. 3.