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rently in the narrow seas, and in ports and havens within the ebb and flow of the tide. Under the statutes of 13 R. II. c. 5. and 15 R. II. c. 3., excluding the admiralty jurisdiction in cases arising upon land or water within the body of a county, except in cases of murder and mayhem, there have been long and vexatious contentions between the admiralty and the common law courts. On the sea shore, the common law jurisdiction is bounded by low water mark; and between high and low water mark, where the sea ebbs and flows, the common law and the admiralty have a divided or alternate jurisdiction."
With respect to the admiralty jurisdiction over arms of the sea, and bays and navigable rivers, where the tide ebbs and flows, there has been great difference of opinion, and great litigation, in the progress of the English jurisprudence. On the part of the admiralty, it has been insisted, that the admiralty continued to possess jurisdiction in all ports, havens and navigable rivers, where the sea ebbs and flows below the first bridges. This seemed also to be the opinion of ten of the judges at Westminster, on a reference to them in 1713.b On the part of the common law courts, it has been contended, that the bodies of counties comprehended all navigable rivers, creeks, ports, harbours, and arms of the sea, which are so narrow as to permit a person to discern, and attest upon oath, any thing done on the other shore, and so as to enable an inquisition of facts to be taken. In
a 1 Blacks. Com. 110. Constable's case, 5 Co. 106, 7. Barber v. Wharton, 2 Lord Raym. 1452. 2 East's P. C. 803. 4 Blacks. Com. 268.
b Cited in Andrew's Rep. 232.
c King v. Soleguard, Andrew's Rep. 231. The resolution of the judges in 1632, cited in 2 Bro. Civ. and Adm. Law, 78. Stanton, J., Fitz. Abr. Corone. 399. 8 Ed. II. 4 Inst. 140. Hawkins' P. C. b. 2. c. 9. sec. 14. 2 East's P. C. 804. 5 Wheaton's Rep. 106. note. Com. Dig. tit. Adm. E. 7. 14. Bacon's Abr. tit. Adm. A. United States v. Grush, 5 Mason, 290.
the case of Bruce, in 1812, all the judges agreed, that the common law and the admiralty had a concurrent jurisdiction in bays, havens, creeks, &c., where ships of war floated. The high seas, mean the waters of the ocean without the boundary of any county, and they are within the exclusive jurisdiction of the admiralty up to high-water mark when the tide is full. The open ocean which washes the sea coast, is used in contradistinction to arms of the sea enclosed within the fauces terræ, or narrow headlands and promontories; and under this head is included rivers, harbours, creeks, basins, bays, &c. where the tide ebbs and flows. They are within the admiralty and maritime jurisdiction of the United States; but if they are within the body of a county of any particular state, the state jurisdiction attaches.b
The extent of the jurisdiction of the District Courts, as courts of admiralty and maritime jurisdiction, was very fully examined, and with great ability and research, by the Circuit Court of the United States for Massachusetts, in the case of De Lovio v. Boit. It was maintained, that in very early periods, the admiralty jurisdiction, in civil cases, extended to all maritime causes and contracts, and in criminal cases to all torts and offences, as well in ports and havens within the ebb and flow of the tide, as upon the high seas; and that the English admiralty was formed upon the same common model, and was co-extensive in point of jurisdiction with the maritime courts of the other commercial powers of Europe. It was shown, by an exposition of the ancient cases, that Lord Coke was mistaken, in his attempt to confine the ancient jurisdiction of the admiralty to the high seas, and to exclude it from the narrow tide waters, and
a 2 Leach's Crown Cases, 1093. case 353. 4th edit.
b Hale's Hist. P. C. vol. 1. 424. Ibid. vol. 2. 13. 18. 54. 3 Inst. 113. Constable's case, 5 Co. 106. a. Lord Hale, Harg. L. T. ch. 4. p. 10. United States v. Grush, 5 Mason, 290.
e 2 Gallison, 398.
from ports and havens. The court agreed with the admiralty civilians, that the statute of 13 R. II. and 15 R. II. and 2 H. IV., did not curtail this ancient and original jurisdiction of the admiralty, and that, consistently with those statutes, the admiralty might exercise jurisdiction over torts and injuries upon the high seas, and in ports within the ebb and flow of the tide, and in great streams below the first bridges; and also over all maritime contracts, as well as over matters of prize and its incidents. It appeared from an historical review of the progress of the controversy for jurisdiction, which lasted for two centuries, between the admiralty and the courts of common law, that the latter, by a silent and steady march, gained ground, and extended their limits, until they acquired concurrent jurisdiction over all maritime causes, except prize causes, within the cognizance of the admiralty. The common law doctrine was, that the sea, ex vi termini, was without the body of any county; but that all ports and havens, and all navigable tide waters, where one might see from one land to the other what was doing, were within the body of the county, and under the exclusive jurisdiction of the common law courts. On the sea shore or coast, high and low-water mark determined what was parcel of the sea, and what was the line of division between the admiralty and the courts of law; and it was held, that it ought to be so considered, by parity of reason, where the tide ebbs and flows, in ports and havens ; and that the admiralty jurisdiction extends to all tide waters in ports and havens, and rivers beneath the first bridges. It was admitted, however, that the common law originally had jurisdiction on the high seas, concurrent with the admiralty; and that in cases manifestly within the admiralty jurisdiction, both civil and criminal, the common law now claimed concurrent jurisdiction.
The result of the examination in that case was, that the jurisdiction of the admiralty, until the statutes of Richard II., extended to all maritime contracts, and to all torts, injuries, and offences, on the high seas, and in ports and
havens, as far as the ebb and flow of the tide; that the common law interpretation of those statutes abridged this jurisdiction to things wholly and exclusively done upon the sea, but that the interpretation was indefensible upon principle, and the decisions founded upon it inconsistent ; that the admiralty interpretation of these statutes did not abridge any of its ancient jurisdiction, and that interpretation was consistent with the language and intent of the statutes, and analogous reasoning, and public convenience. It was considered that the decisions at common law on this subject were not entitled to outweigh the decisions of the great civilians of the admiralty. The vice-admiralty courts in this country, under the colonial governments, exercised a most ample jurisdiction, to the extent now claimed, over all maritime contracts, and over torts and injuries, as well in ports as upon the high seas; and the constitution of the United States, when it conferred not only admiralty, but maritime jurisdiction, added that word ex industria, to remove every latent doubt. This large and liberal construction of the admiralty powers of the District Courts, and their extension to all maritime contracts, torts, and injuries, was recommended by the general equity and simplicity of admiralty proceedings, and the policy and wisdom of that code of maritime law, which had embodied the enlightened reason of the civil law, and the customs and usages of the maritime nations, and regulates, by its decisions, the commercial intercourse of mankind.
This enlarged extension of the civil jurisdiction of the admiralty, as declared in the Circuit Court in Massachusetts, remains to be discussed, and definitively settled, in the Supreme Court. It has been subsequently and frequently asserted in the Circuit and District Courts. Thus, in Plummer v. Webb, the jurisdiction of the admiralty over all maritime contracts, upon the doctrine of the case of De
Lovio v. Boit, was declared, and it was considered that inasmuch as Courts of Admiralty act as courts of equity, and administer justice upon the same principles, and with equal safety, maritime contracts were suitable objects of such a jurisdiction; and especially as such contracts require a liberal interpretation, and enlarged good faith, and the application of a comprehensive equity. So, in Drinkwater v. The brig Spartan, in the District Court for Maine, the doctrine in De Lovio v. Boit was explicitly recognised as sound. It was declared to have been before the public for twelve years, without having its reasoning met, or its conclusions shaken; and it was adjudged in this case, that the admiralty had a general jurisdiction over maritime contracts; and the circumstance that the contract was under seal did not affect the jurisdiction, though it was admitted, that in England the courts of law would grant a prohibition in such a case. The broad jurisdiction of the American Courts of Admiralty, over all executed maritime contracts, (for the jurisdiction is confined to executed contracts,) and all cases of a maritime nature, has been equally asserted in the Circuit Courts of the United States at New-York and Philadelphia, founded on the language of the constitution, and the judiciary act of 1789. This enlarged admiralty cognizance of civil causes was elaborately vindicated, on principles of reason, as well as on the ground of authority, in the case of the Schooner Tilton. It was there held, that the admiralty had jurisdiction of all causes of a maritime nature, inclusive of questions of prize, whether they arose from contracts or from torts. The jurisdiction was clear, in all matters that concerned owners and proprietors of ships, as such. It was observed, that suits in the admiralty, touch
a American Jurist, No. 5. p. 26.
b 3 Mason, 16. 17.
c The sloop Mary, 1 Paine's R. 673. Wilmer v. The Smilax, and Davis & Brooks v. Brig Seneca, in the Circuit Court. Penn. district. d 5 Mason, 465.