District and Territorial Courts

THE district courts act as courts of common law, and also as courts of admiralty.

A distinction is made in England between the instance and the prize court of admiralty. The former is the ordinary admiralty court, but the latter is a special and extraordinary jurisdiction; and although it be exercised by the same person, it is in no way connected with the former, either in its origin, its mode of proceeding, or the principles which govern it. To constitute the prize court, or to call it into action in time of war, a special commission issues, and the court proceeds summarily, and is governed by general principles of policy and the law of nations. This was the doctrine of the English Court of King’s Bench, as declared by Lord Mansfield in Lindo v. Rodney;¹ and though some parts of his learned and elaborate opinion in t hat case do not appear to be very clear and precise on the point concerning the difference in the foundation of the powers of the instance and of the prize court of admiralty, yet I should infer from it that the judge of the English admiralty requires a special commission, distinct from his ordinary commission, to enable him, in time of war, to assume the jurisdiction of prize. The practice continues to this day, of issuing a special commission, on the breaking out of hostilities, to the commissioners for executing the office of lord high admiral, giving them jurisdiction in prize cases.²

The division of the Court of Admiralty into two courts is said not to have been generally known to the common lawyers of England before the case of Lindo v. Rodney; and yet it appears, from the research made in that case, that the prize jurisdiction was established from the earliest periods of the English judicial history. The instance court is the ordinary and appropriate Court of Admiralty, and takes cognizance of the general subjects of admiralty jurisdiction, and it proceeds according to the civil and maritime law. The prize court has exclusive cognizance of matters of prize, and matters incidental thereto, and it proceeds to bear and determine according to the course of the admiralty and the law of nations. The distinction between these two courts, or rather between these two departments of the same court, is kept up throughout all the proceedings; and the appeals from the decrees of these two jurisdictions are distinct, and made to separate tribunals. The appeal from the instance court lies to delegates, but from the prize court it ties to the lords commissioners of appeals in prize causes, and who are appointed fir that special purpose.

Such is the distinction in England between the instance and the prize court of admiralty; and in the case Ex parte Lynch, it was held, that the jurisdiction of the admiralty as a prize court, did not cease with the war, but extended to all the incidents of prize, and to an indefinite period after the war. It remains to see how far that distinction is known or preserved lit the jurisdiction of our district courts.

It is said by a judge, who must have been well acquainted with this subject, (for he was a register of a colonial court of admiralty before our revolution,) that this distinction between the instance and the prize court was not known to our admiralty proceedings under the colony administrations.³

In the case of Jennings v. Carson,⁴ the District Court of Pennsylvania, in 1792, decided, that prize jurisdiction was involved in the general delegation of admiralty and maritime powers, and that congress, by the judiciary act of 1780, meant to convey to the district courts all the powers appertaining to admiralty and maritime jurisdiction, including that of prize. Prize jurisdiction was inherent in a court of admiralty, though it was of course a dormant power until called into activity by the occurrence of war.

But notwithstanding this early decision in favor of the plenary jurisdiction of the district courts as courts of admiralty, there was. great doubt entertained in this country, about the year 1793, whether the district courts had jurisdiction, under the act of congress of 1789, as prize courts. The District Court of Maryland decided against the jurisdiction, and that decree was affirmed on appeal to the Circuit Court, on the ground that a prize cause was not a civil cause of admiralty jurisdiction, but rested on the jus belli, and that there was no prize court in existence in the United States. The same question was carried up to the Supreme Court of the United States, in February, 1794, in the case of Glass v. The Sloop Betsey,⁵ and was ably discussed. The Supreme Court put an end at once to all these difficulties about jurisdiction, by declaring that the district courts of the United States possessed all the powers of courts of admiralty, whether considered as instance or as prize courts.

In the case of the Emulous,⁶ the Circuit Court in Massachusetts was inclined to think, that the admiralty, from time immemorial, had an inherent jurisdiction in prize, because if we examine the most venerable relies of ancient maritime jurisprudence, we shall find the admiralty in possession of prize jurisdiction, independent of any known special commission. It seems to have always constituted an ordinary, and not an extraordinary branch of the admiralty powers; and it is to be observed, that Lord Mansfield leaves the point uncertain, whether the prize and the instance jurisdictions sere coeval in antiquity, or whether the former was constituted by special commission. Be that as it may, the equal jurisdiction of the admiralty in this country, as an instance and as a prize court, is now definitively settled, and if the prize branch of the jurisdiction of the admiralty be not known in time of peace, it is merely because its powers lie dormant, from the want of business to call them into action.

There is no pretense of claim on the part of courts of common law, to any share in the prize jurisdiction of the courts of admiralty. It is necessarily and completely exclusive: and we will first take a view of the jurisdiction and posers of the district courts in prize cases, and then of their ordinary admiralty jurisdiction. As prize questions are applicable to a state of war, and are governed chiefly by the rules of the law of nations, and the usages and practices of the maritime powers, I do not propose to enlarge on that subject My object will be, to ascertain the exact jurisdiction of the District Court, in all its various powers and complicated character. I shall therefore treat of it, first, as an admiralty court; and, under that description, I shall consider, (1.) Its character as a prize court. (2.) As a court of criminal jurisdiction in admiralty. (3.) The division line between the admiralty and the courts of common law. (4.) Its powers as an instance court of admiralty. I shall then next consider its jurisdiction asa court of common law, and clothed also with special powers over payments, and in cases of bankruptcy.

(1.) As to the jurisdiction of the prize courts.

The ordinary prize jurisdiction of the admiralty extends to all captures in war, made on the high seas. I know of no other definition of prize goods, said Sir William Scott, in the case of the Two Friends,⁷ than that they are goods taken on the high seas, jure belli, out of the hands of the enemy. The prize jurisdiction also extends to raptures in foreign ports and harbors, and to captures made on land by naval forces, and upon surrenders to naval forces, either solely, or by joint operation with land forces.⁸ It extends to captures made in rivers, ports and harbors, of the captor’s own country. But as to plunder or booty in a mere continental land war, without the presence or intervention of any ships or their crews, Lord Mansfield admitted, in Lindo v. Rodney, there was no case, or authority, or principle, to enable him to bring it within the cognizance of a prize court. The prize court extends also to all ransom bills upon captures at sea, and to money received as a ransom or commutation, on a capitulation to naval forces alone, or jointly with land forces.⁹ The federal courts have asserted for the prize courts in this country, a jurisdiction equally as ample and extensive as any claimed for them in England. In the case of the Emulous,¹⁰ though the court gave no opinion as to the right of the admiralty to take cognizance of mere captures made on the land, exclusively by land forces, yet it was declared to be very clear, that its jurisdiction was not confined to captures at sea. It took cognizance of all captures in creeks, havens, and rivers, and also of all captures made on land, where the same had been made by a naval force, or by cooperation with a naval force; and this exercise of jurisdiction was settled by the most solemn adjudications. A seizure may therefore be made in port, in our own country, as prize, if made while the property was water-borne. Had it been landed and remained on land, it would have deserved consideration, and no opinion was given, whether it could have been proceeded against as prize, under the admiralty jurisdiction, or whether, if liable to seizure, and condemnation in our courts, the remedy ought not to have been pursued, by a process applicable to municipal confiscations.

It is understood in England, that the admiralty, merely by its own inherent powers, never exercises jurisdiction as to captures or seizures, as prize, made on shore, without the cooperation of naval forces. In the case of the Ooster Eems, cited by Sir William Scott in the case of the Two Friends,¹¹ and decided by the highest authority, that of the lords commissioners of appeal, in 1784, it was held, that goods taken on shore as prize, where there had been no act of capture on the high seas, were riot to be considered as prize, and that the prize courts had no jurisdiction in such a case. But it is admitted, that if the jurisdiction has once attached, and the goods have been taken at sea, they may be followed on shore by the process of the prize court, and its jurisdiction over there still continues. In this respect, the prize court seems more extensive, and to hold a firmer jurisdiction, than the instance court; for, as to cases of wreck and derelict, if the goods are once on shore, or landed, the cognizance of the common law courts attaches.¹²

Though the prize be unwarrantably carried into a foreign port, and there delivered by the captors upon security, the prize court does not lose its jurisdiction over the capture, and the questions incident to it.¹³ So, if the prize be lost at sea, the court may, notwithstanding, proceed to adjudication, and at the instance of the captors or the claimants.¹⁴ It has jurisdiction, likewise, though the prize be actually lying within a foreign neutral territory. This is the settled law of the prize jurisdiction, both in England and in this country. The principle is, that the possession of the captor, though in a neutral country, is considered to be the possession of his sovereign, and sub protestate curiae.¹⁵ But, it is admitted, that if possession of the thing seized be actually, as well as constructively lost, as by recapture, escape, or a voluntary discharge of the captured vessel, the jurisdiction of the prize court over the subject is lost. Though captured property be unjustifiably or illegally converted by the captors, the jurisdiction of the prize court over the case continues, but it rests in the sound discretion of the court, whether it will interfere in favor of file captors in such cases; and it is equally discretionary in all cases where the disposition of the captured vessel and crew has not been according to duty.¹⁶ The prize court may always proceed in rem, whenever the prize, or the proceeds of the prize, can be traced to the hands of any person whatever; and this it may do, notwithstanding any stipulation in the nature of bail had been taken for the property. And it is a principle perfectly well settled, and constantly conceded and applied, that prize courts have exclusive jurisdiction, and an enlarged discretion as to the allowance of freight, damages, expenses, and costs, in all cases of captures, and as to all torts, and personal injuries, and ill treatments, and abuse of power, connected with captures jure belli; and the courts will frequently award large and liberal damages in those cases.¹⁷

The prize courts may apply confiscation by way of penalty, for fraud and misconduct, in respect to property captured as prize, and claimed by citizens or neutrals.¹⁸ They may decree a forfeiture of the rights of prize against captors guilty of gross irregularity or fraud, or any criminal conduct; and, in such cases, the property is condemned to the government generally.¹⁹

(2.) As to the criminal jurisdiction of the admiralty.

The ordinary admiralty and maritime jurisdiction, exclusive of prize cases, embraces all civil and criminal cases of a maritime nature; and though there does not seem to be any difficulty or doubt as to the proper jurisdiction of the prize courts, there is a great deal of unsettled discussion respecting the civil and criminal jurisdiction of the district court as an instance court, and possessing under the constitution and judiciary act of 1789, admiralty and maritime jurisdiction.

The act of congress gives to the district courts, exclusive of the state courts, and concurrently with the circuit courts, cognizance of all crimes and offenses cognizable under the authority of the United States, and committed within their districts, or upon the high seas, where only a moderate corporal punishment, or fine or imprisonment, is to be inflicted. This is the ground of the criminal jurisdiction of the district courts; and it is given to them as district courts; and as it includes the minor crimes and offenses committed on the high seas, and cognizable in the courts of admiralty under the English law, the district courts may be considered as exercising the criminal jurisdiction of a court of admiralty in those cases. The constitution of the United States declares, that the judicial power of the union shall extend to all cases of admiralty and maritime jurisdiction; and it has been supposed, that the federal courts might, without any statute, and under this general delegation of admiralty powers, have exercised criminal jurisdiction over maritime crimes and offenses. 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. McGill,²⁰ 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; 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,²¹ 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 8th 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 such murder. The act confined the federal jurisdiction to murder and other crimes and offenses committed upon the high seas, or in any river, harbor, 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 harbor, 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 hoard a ship of tear 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 offenses committed upon tide waters, in the bays and harbors within their respective territorial jurisdictions. And in the case of The United States v. Wiltberger,²² 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 30th of April, 1790, ch. 36. sec. 12. did not reach such a case, and was confined to the crime committed on the high seas. Upon the principle of this decision, the offender could not be judicially punished, except by the Chinese government; and it was said upon the argument in that 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, 1525, c. 67; which declared, that if any offense 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 offense shall be 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; but the crimes in any river, bay, etc. to be cognizable, must he 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 some offenses.

It appears from these cases, that though the general cognizance of all cases of admiralty and maritime jurisdiction, as given by the constitution, extends as well to the criminal as, to the civil jurisdiction of the admiralty as known to the English and maritime law when the constitution war: 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 offenses. In the case of The United States v. Coolidge,²³ it was insisted that the admiralty was a court of extensive criminal as well its civil jurisdiction, and that offenses 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 decision of the Supreme Court was otherwise;²⁴ 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.²⁵

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 offenses 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.²⁶ 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 jury, before, and independent of, the statute of Hen. VIII; and all criminal offenses cognizable by the admiralty, and not otherwise provided for by positive law, are punishable by fine and imprisonment.²⁷ 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 offense of a criminal nature can be tried there, which does not fall within the jurisdiction specially conferred by the statute of Hen. VIII.²⁸ 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 offenses 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,²⁹ that the sea did not include any navigable waters within the body of a county; and Sir Matthew Hale supposed,³⁰ that prior to the statute of 35 Edw. III, the common law and the admiralty exercised jurisdiction concurrently 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.³¹

With respect to the admiralty jurisdiction over arms of the sea, and bays and navigable rivers, where the tide ebbs and floss, 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 floss below the first bridges. This seemed also to be the opinion of ten of the judges at Westminster, on a reference to them in 1713.³² On the part of the common law courts, it has been contended, that the bodies of counties comprehended all navigable rivers, creeks, ports, harbors, 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.³³ In the case of Bruce in 1812³⁴ all the judges agreed, that the common law and the admiralty had a concurrent jurisdiction in bays, havens, creeks, etc., where ships of war floated.

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.³⁵ 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 offenses, 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 coextensive 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 from ports and havens. The court agreed with the admiralty civilians, that the statutes 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; bit 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 floss, 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 offenses, 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, and the decisions at common law on this subject sere 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.

It is understood, that the enlarged extension of the civil jurisdiction of the admiralty, as declared in the Circuit Court in Massachusetts, is a point now under review, and remains to be discussed, and definitively settled, in the Supreme Court. 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 the argument for the extension of the civil jurisdiction of the admiralty beyond 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 hiss 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 divested, 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 alt civil causes of admiralty and maritime, jurisdiction, including all seizures under lass 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 burden, 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, harbors, arms, and creeks 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 burden. 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. Le Vengeance,³⁶ a French privateer was libeled in the District Court of New York, 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, harbor, 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,³⁷ the vessel was libeled 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,³⁸ 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 burden, 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 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 was in rem, it was not necessarily a proceeding or cause in the admiralty.

In the case of The Samuel,³⁹ where the vessel and cargo were seized and libeled, and condemned in the District Court of Rhode Island, for a breach of the nonimportation 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,⁴⁰ 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 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,⁴¹ and the Supreme Court there recognized 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 informations in rem, and the trial of issues of fact is to be by jury.⁴² But, in cases of seizures on waters navigable from the sea, by vessels of ten or more tons burden, 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.⁴³ 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,⁴⁴ 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,⁴⁵ that informations of that 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 bad 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 an 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 lass 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 leaves 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 Le 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 enlarged as those claimed at the present day.⁴⁶ But this extension 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.⁴⁷

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 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 vigor of trial by jury.⁴⁸

(4.) As to the jurisdiction of the instance courts.

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.⁴⁹ 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;⁵⁰ and in the case of Menetone v Gibbons,⁵¹ 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 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.⁵² Suits for seamen’s sages are cognizable in the admiralty, though the contract be made upon land; 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.⁵³ This case of seamen’s wages the courts of common law admit to be of admiralty jurisdiction; and this is an exception in favor 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 quits 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 when there is a specific lien, as 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.⁵⁴ 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, both in civil and criminal cases, and both as an instance and as 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. 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.

I proceed next to consider the jurisdiction of the District Court when proceeding as a court of common law. It extends to all minor crimes and offenses, cognizable under the authority of the United States, and which are not strictly of admiralty cognizance; and to all seizures on land, and on waters not navigable from the sea; and to all suits fur penalties and for forfeitures there incurred, and to all suits by aliens for torts done in violation of the law of nations, or of a treaty; and to suits against consuls and vice-consuls; and to all suits at common law, where the United States sue, and the matter in dispute amounts to one hundred dollars.⁵⁵ It has jurisdiction likewise of proceedings to repeal patents obtained surreptitiously, or upon false suggestions. This is given by the act of congress of 21st February, 1793, chap. 11, and it is a jurisdiction that leads frequently to the most intricate, nice, and perplexed investigations, respecting the originality of inventions and improvements in complicated machinery, It was made a question in the District Court of New York, in the case Ex parte Wood, whether the process to be awarded to repeal the patent, was not in the nature of a scire facias at common law, upon which issue of fact might be taken, and tried by a jury. The district judge decided, that the proceeding was summary, upon a rule to show cause, and that no process of scire facias was afterwards admissible. But upon appeal to the Supreme Court of the United States,⁵⁶ the decree of the District Court was reversed, and the District Court was directed by mandamus too enter upon record the proceedings in the cause, antecedent to the granting of the rule to show cause why process should not issue to repeal the patent. The District Court was further directed to award process, in the nature of a scire facias, to the patentee, to show cause why the patent should not be repealed; and upon the return of the process, the Court was to proceed to try the cause upon the pleadings of the parties, and the issue of law or fact joined thereon, as the case might be; and that if the issue be an issue of fact, the trial thereof was to be by jury, according to the course of the common law.

This was a just and liberal decision of the Supreme Court, and it was observed, in. the opinion which was pronounced, that it was not lightly to be presumed, that congress, in this class of patent cases, placed peculiarly within their patronage and protection, involving some of the dearest and most valuable rights which society acknowledges, and the constitution itself meant to favor, would institute a new and summary process, which should finally adjudge upon those rights, without a trial by jury, without a right of appeal, and without any of those guards with which, in equity suits, it has, fenced round the general administration of justice. The Supreme Court then went into an analytical examination of the 10th section of the act of 1793, on which the claim of summary jurisdiction rested, and vindicated the construction which they assured, in opposition to that taken by the, District Court.

The jurisdiction of the judges of the district courts, in cases of bankruptcy, has presented for consideration some extremely important and difficult questions on the point of jurisdiction. We have no bankrupt system in existence under the government of the United. States; but there are some lingering traces of business yet arising and undetermined, under the bankrupt act of the year 1800; and we are in expectation, at every session of congress, of a revival of that, or some other analogous system and code of national bankrupt law. The question, which was not long since discussed and decided in the District Court of New York in the case of Comfort Sands,⁵⁷ is worthy of some little examination.

The district judge observed, that, in England, the sole power of directing the execution, and controlling the administration of the bankrupt system, in all. its departments, and in every stage of the proceeding, resided in the lord chancellor. He examined the provisions of the several English bankrupt acts, from 34th and 35th Hen. VIII to 49th Geo. III, to show that, by them, the chancellor has authority to appoint the commissioners of bankrupts to supersede their authority, to enlarge the time for the bankrupt to surrender, to punish for concealing him, to remove the assignees and appoint others, and to order then to pay dividends. Under this delegation of power, the whole administration of the bankrupt’s effects is vested in the lord chancellor; though this administration was given immediately by the legislature to the commissioners. The chancellor, in virtue of his acknowledged power to appoint and remove, to create and annihilate these officers, possesses, in effect, the authority to control and direct them in all their acts, and thus effectually to exercise the whole jurisdiction. His power is adequate to every case, and to every emergency, that can arise in the course of the administration of the bankrupt system. He grants relief to all parties interested, the bankrupt as well as the creditor, in a summary way.

This jurisdiction of the English chancellor is not in the court of chancery, but in the individual who holds the, great seal; and it is exercised summarily upon petition, and his judgment upon the petition is without appeal, unless the chancellor in his discretion allows a bill to be filed in order to found an appeal thereon. The judge, after giving this view of the jurisdiction of the lord chancellor of England, sitting in bankruptcy, proceeded to examine the several provisions of the bankrupt act of the United States of 1800, in order to show, that upon the principles of construction adopted in England, the district judge had the same jurisdiction in cases of bankruptcy as is exercised by the lord chancellor. The same course of reasoning which sustains the jurisdiction of the one, would confer that of the other. He insisted that the jurisdiction here was given, not to the District Court, but to the individual who happened to hold the office of district judge, and that, consequently, all his decisions, in bankruptcy were without appeal, for appeals lie only from the decrees of the District Court.

The district judge accordingly proceeded to institute an inquiry, upon the petition of the bankrupt, into the execution of the commission of bankruptcy, and what the commissioners had done under it, and be made an order calling upon the assignees to account.

After this decision, an application was made to the Circuit Court of the United States to take cognizance of this case, and to restrain the bankrupt from further proceedings before the district judge; but that court held, that it bad no jurisdiction in the case.

If the doctrine in this case be sound, and that the district judge had this plenary, absolute, uncontrollable and exclusive jurisdiction in all cases of bankruptcy, both in respect to the person and estate of the bankrupt, then it must be admitted that the bankrupt act of 1800 erected a tribunal of a most arbitrary character, and it is fortunate in that respect that the bankrupt act was, speedily repealed. According to this decision, the state tribunals, such as the Court of Chancery and the Court of Errors of this state, which asserted and exercised concurrent jurisdiction between the bankrupt and his creditors, as in the case of Codwise and others v. Sands and others,⁵⁸ were all under a mistake, and the decrees of those courts respectively were null and void for want of jurisdiction. The weight of authority is, however, in favor of the concurrent jurisdiction of the state courts, and against any construction of the bankrupt act of 1800, which should vest such extravagant powers in the unchecked discretion of a single judge. There was nothing in that act which declared or intimated that the judge of the District Court, in executing the powers vested in the district judge, was not to be deemed to be acting judicially as a court. The act of congress was susceptible of a safer construction, and one better adapted to the genius and whole detail of our municipal institutions; and it is understood that the Circuit Court for the district of New York has since admitted the right of appeal to that court, and also the concurrent jurisdiction of the state courts.⁵⁹

With respect to the vast territories belonging to the United States, and which are not distinct, political societies, known to the constitution as states, congress have assumed to exercise over them supreme powers of sovereignty. In the Michigan territory, congress have, by the acts of 7th of August, 1789, and January 14th, 1805, adopted the principles of the ordinance of the confederation congress of the date of the 13th of July, 1787. This ordinance was formed upon sound and enlightened maxims of civil jurisprudence, and the judges appointed in that territory hold their offices during good behavior. In the Arkansas territory, a greater subjection is created to the will of the president of the United States. The governor and judges are appointed by the president and senate, but they are removable at the pleasure of the president, and the judges subject to such removal, hold for four, and the governor for three years. The legislative power of the territory was originally vested in the governor, and the three judges of the superior court, by the act of March 2d, 1819. But a legislative assembly, to be composed of a council of nine members, appointed by the president and senate of the United States, and to continue in office for five years, and of a house of representatives to be chosen by the inhabitants biennially, was provided by the act of 21st of April, 1820, adopting the act of June 4th, 1812, c. 95. The Superior Court of that territory has exclusive cognizance of all capital offenses, and the trial by jury is secured, together with many of the other great fundamental principles of civil liberty. The territorial legislatures both of Michigan and Arkansas, are prohibited from interfering with the primary disposal of the soil by the United States, or from taxing lands of non-resident proprietors, higher than those of residents, or from interrupting the navigable waters flowing into the Mississippi and Missouri rivers, as common highways free to all the citizens of the United States.

In the organization of the territorial governments of East and West Florida, by the act of congress of March 30th, 1822, the judges of the superior courts are appointed by the president and senate of the United States, and hold their offices for four years; but writs of error and appeal lie from their decisions to the Supreme Court of the United States, equally as from the circuit. courts in the several states.

It would seem, from these various congressional regulations of the territories belonging to the United States, that congress have supreme power in the government of them, depending on the exercise of their sound discretion. Neither the District of Columbia, nor a territory, is a state, within the meaning of the constitution, or entitled to claim the privileges secured to the members of the union. This has been so adjudged by the Supreme Court.⁶⁰ Nor will a writ of error or appeal lie from a territorial court to the Supreme Court, unless there be a special statute provision for the purpose.⁶¹ There is such a provision as to Florida, and there is a limited provision of that kind as to Arkansas and Michigan, extending to cases in which the United States are concerned, and not extending further.⁶² If, therefore, the government of the United States should carry into execution the project of colonizing the great valley of the Oregon to the west of the Rocky Mountains, it would afford a subject of grave consideration what would be the future civil and political destiny of that country. It would be a long time before it would be populous enough to be created into one or more independent states; and, in the mean time, upon the doctrine taught by the acts of congress, and even by the judicial decisions of the Supreme Court, the colonists would be in a state of the most complete subordination, and as dependent upon the will of congress as the people of this country would have been upon the king and parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not congenial with the free and independent spirit of our native institutions; and the establishment of distant territorial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression.