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ing property in ships, were either petitory suits, in which the mere title to the property is litigated and sought to be enforced, or they were possessory suits, to restore to the owner the possession, which he had under a claim of title. The jurisdiction over both classes of cases was exercised by the admiralty, until some time after the Restoration in 1660, when the courts of law interfered, and claimed the exclusive cognizance of mere questions of title; and the admiralty jurisdiction over petitory suits has been, in England, abandoned for a considerable length of time, though it is constantly upheld as to possessory suits. The distinction does not appear to rest on any sound principle, for the question of title is necessarily involved in that of the possession, and it is admitted by the courts of law, that the admiralty possesses authority to decree restitution of a ship unlawfully withheld by a wrongdoer from the real owner. In the cases of illegal captures, and of bottomry, salvage, and marine torts, the Admiralty Courts in this country inquire into and decide on the rights and titles involved in the controversy; and where they have jurisdiction of the principal matter, it is suitable, and according to the analogies of law, that they should possess it over the incidents. Notwithstanding the English practice to the contrary, the admiralty in this country claim, to possess a rightful jurisdiction equally over petitory and possessory suits.
With respect to the criminal jurisdiction of the admiralty, we have already seen, that the courts of the United States do not assume any jurisdiction which is not expressly conferred by an act of Congress; and that the argument for the extension of the civil jurisdiction of the admiralty be
a Haly v. Goodson, 2 Merivale's R. 77. Lord Stowel, in the cases of the Aurora, 3 Rob. Adm. R. 133. 136. The Warrior, 2 Dodson, 288. and The Pitt, 1 Hagg. Adm. R. 240. 2 Bro. Civ. and Ad. Law, 114, 115.
b In the matter of Blanshard, 2 B. & Cress. 244.
c The schooner Tilton, 5 Mason, 465.
yond the limits known and established in the English law, at the time of the formation of our constitution, is not free from very great difficulty.
It has been made a question, what were "cases of admiralty and maritime jurisdiction," within the meaning of the constitution of the United States. It is not in the power of Congress to enlarge that jurisdiction beyond what was understood and intended by it when the constitution was adopted, because it would be depriving the suitor of the right of trial by jury, which is secured to him by the constitution in suits at common law; and it is well known, that in civil suits of admiralty and maritime jurisdiction, the proceedings are according to the course of the civil law, and without jury. If the admiralty and maritime jurisdiction of the District Courts embraces all maritime contracts, then suits upon policies of insurance, charter parties, marine hypothecations, contracts for building, repairing, supplying, and navigating ships, and contracts between part owners of ships, must be tried in the admiralty by a single judge, to the exclusion of the trial by jury, and the state courts would be devested, at one stroke, of a vast field of commercial jurisdiction. The words of the judiciary act of 1789, sec. 9. are, that the District Courts shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade, of the United States, where the seizures are made on waters which are navigable from the sea, by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas." But the act adds, by way of qualification to this designation of admiralty jurisdiction, these words, viz. "saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it."
The act of Congress is rather ambiguous in its meaning, and leaves it uncertain whether it meant to consider seizures on tide waters, in ports, harbours, creeks, and arms of the sea, as cases of admiralty and maritime jurisdiction, or as
cases simply within the cognizance of the District Courts; for the expression is including, that is, comprehending, either within the cognizance of the court, or within the class of cases of admiralty jurisdiction, all seizures under laws of impost, navigation and trade, on waters navigable from the sea, by small vessels of ten tons burthen. This act has, however, been construed to put a construction upon the words "admiralty and maritime jurisdiction," conformable to the claims of the civilians, and in opposition to the claims of the common law tribunals; and there are a series of decisions in the Supreme Court of the United States to that effect.
In the case of the United States v. La Vengeance," a French privateer was libelled in the District Court of NewYork, for an attempt to export arms from the United States to a foreign country, contrary to law. She was adjudged to be forfeited to the United States. The decree, on appeal to the Circuit Court, was reversed. On a further appeal to the Supreme Court of the United States, it was contended, that this was a criminal case, both on account of the manner of prosecution, and the matter charged; and, therefore, that the decree of the District Court was final; and that it ought likewise to have been tried by a jury in the District Court; and that, if it was even a civil suit, it was not a case of admiralty and maritime jurisdiction. To render it such, the cause must arise wholly upon the sea, and not in a bay, harbour, or water, within the precincts of any county of a state. But the Supreme Court decided, that it was a civil suit, not of common law, but of admiralty and maritime jurisdiction. The seizure was on the waters of the United States. The process was in rem, and did not, in any degree, touch the person, and no jury was necessary.
Afterwards, in the case of The United States v. The Schooner Sally, the vessel was libelled in the District Court,
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.
b 1 Wheaton, 9.
c 1 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,d 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
a 8 Wheaton, 391.
b Thompson, J. 1 Paine, 504.
d Bunb. 236.
e Harg. Law Tracts, 227.
c Attorney General v. Le Merchant, 1 Anst. 52.