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. (a) The criminal jurisdiction of the English admiralty received its present modification by the Act of 28 Henry VIII. c. 15; but it had a very extensive criminal jurisdiction, coeval with the first

existence of the court. It proceeded by indictment and *365 *petit jury, before, and independent of, the statute of

Henry VIII.; and all criminal offences cognizable by the admiralty, and not otherwise provided for by positive law, are punishable by fine and imprisonment. (b) 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 con

Rep. 28;) and courts of common law have also jurisdiction, concurrently with the instance court of admiralty, in cases of marine trespass, free from the question of prize. Percival v. Hickey, 18 Johns. Rep. 257. Wilson v. Mackenzie, 7 Hill, N. Y. Rep. 95. The admiralty can take jurisdiction of a suit for damages in the nature of a breach of a maritime contract, even though the ship did not enter on the voyage. Abbott on Shipping, part 4, c. 4, sec. 2. Case of The City of London, in the Adm., Nov. 1839. See Curtis's Treatise on Seamen, pp. 300, 356. But if a tort be committed by a master on one of the crew on shore, or in a foreign port, in the course of the voyage, it is a case of common-law jurisdiction, and the admiralty cannot draw to it a tort on shore, though it be a gravamen, mixed up with a tort on the high seas. Adams". Haffards, 20 Pick. 127. The admiralty, says Mr. Justice Story, does not claim any jurisdiction over torts, except maritime torts committed on the high seas, or on waters within the ebb and flow of the tide. Where those waters are within the body of a county, the learned judge would seem to differ from the courts of common law, for they deny the admiralty jurisdiction in the latter case. The objection to the admiralty jurisdiction does not apply in the case of tide waters in foreign countries, where the distinction of counties is unknown. Thomas v. Lane, 2 Sumner, 9, 10.

(a) 4 Blacks. Comm. 269. (b) 4 Rob. Rep. 74, note.

ferred by the statute of Henry VIII. (a) 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.) Division line between the jurisdiction of the admiralty and of courts of common law.

Limits of admiralty jurisdiction.

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, (b) that the sea did not include any navigable waters within the body of a county; and Sir Matthew Hale supposed, (c) that prior to the statute of 35th Edw. III. the common law and the admiralty exercised jurisdiction concurrently in the nar- *366 row 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 lowwater-mark where the main sea begins; 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. (d)

(a) 2 Bro. Civ. and Adm. Law, Appendix, No. 3. Opinion of Law Officers of the Crown, Ibid.

(b) 4 Inst. 135.

(c) 2 Hale's P. C. c. 3.

Barber v. Wharton,
The King v. Forty-

(d) 1 Black's Comm. 112. Constable's case, 5 Co. 106, 107. 2 Lord Raym. 1452. 2 East's P. C. 803. 4 Black's Comm. 268. nine Casks of Brandy, 3 Hagg. Adm. R. 257. The jurisdiction of the admiralty subsists when the shore is covered with water, and the jurisdiction of the common law when the land is left dry. The Pauline, 2 Robinson, Adm. 358.

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 of Westminster, on a reference to them in 1713. (a) 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, anything done on the

other shore, and as to enable an inquisition of the facts 367 to be taken. (b) In the case of Bruce, (c) 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 highwater-mark when the tide is full. The open ocean which washes the sea-coast is used in contradistinction to arms of the sea inclosed within the fauces terræ, or narrow headlands or promontories; and under this head is included rivers, harbors, 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. (d)

(a) Cited in Andrew's Rep. 232.

(b) 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 Edw. II. 4 Inst. 140. Hawkins's P. C. b. 2, c. 9, sec. 14. 2 East's P. C. 804. 5 Wheaton, 106, note. Com. Dig. tit. Adm. E. 7, 14. United States v. Grush, 5 Mason's

Rep. 290.

(c) 2 Leach's Crown Cases, 1093, case 353, 4th edit.

Con

(d) Hale's Hist. P. C. vol. i. p. 424. Ibid. vol. ii. pp. 13, 18, 54. 3 Inst. 113. stable's case, 5 Co. 106 a. Lord Hale, Harg. L. T. c. 4, p. 10. United States v. Grush, 5 Mason's Rep. 290. In the United States District Court for Connecticut, January 7th, 1840, in the case of Gedney v. Schooner L'Amistad, the judge held, that a vessel on tide waters, off shore, within Montauk Point, and five miles from it, and

The extent of the jurisdiction of the district courts, as courts of admiralty and maritime jurisdiction, was very fully exam

eighteen miles from New London, and a half a mile from Long Island shore, and not in any known harbor, was on the high seas, and within the admiralty jurisdiction. The high seas imported the open ocean without the fauces terræ. The Schooner Harriet, 1 Story's R. 259. In case of The Public Opinion, (2 Hagg. Adm. Rep. 398,) it was held, that the admiralty had not jurisdiction of a case arising in the Humber, twenty miles from the sea, but within the flux and reflux of the tide, because it was infra corpus comitatus. But in the Northern District Court of the United States in New York, in the case of Van Santvort v. The Boat John B. Cole, in 1846, it was decided, that a contract to be performed on board of a canal boat at Albany, being within the ebb and flow of the tide on the navigable Hudson, for the delivery of a cargo of flour in New York, was a maritime contract, relating to the business of navigation and trade, and within the admiralty jurisdiction. The New York Legal Observer for October, 1846.1

In Thomas v. Lane, 2 Sumner's R. 1, in the case of a libel for a maritime tort, it was admitted that the admiralty had no jurisdiction over torts, except those that were maritime or committed on the high seas, or on waters within the ebb and flow of the tide, and that the courts of common law denied the jurisdiction, if the waters are within the body of the county. It was held, however, to be a clear point, that the exception did not apply to tide waters in foreign countries, and that the admiralty jurisdiction attached to torts on such waters, but the libel must aver that the trespass was on tide water in a foreign port, and it cannot be taken by intendment. It was doubted in the case of United States v. Davis, 2 Sumner, 482, whether a place at Raiatea, one of the Society Islands, within a coral reef, covered at high and uncovered at low water, was to be deemed the high seas, so as to confer criminal jurisdiction; for a place may at high water be the high seas, and at low water strictly part of the land, as in case of the seashore, according to the doctrine in Constable's case, 5 Co. 106 a. It was expressly held, in the cases of United States v. Ross, 1 Gall. R. 624, and in The United States v. Pirates, 5 Wheaton, 184, that a vessel in an open roadstead, within a marine league of the shore, was upon the high seas, under the 8th section of the Act of 30th April, 1790, c. 9, sec. 8, so as to give jurisdiction to the courts of the United States. The high seas in that Act mean any waters on the sea-coast, which are without the bounaries of low-water-mark. And yet again it was held, in the case of the United States v. Robinson, 4 Mason, 307, that an offence committed in a bay entirely landlocked and inclosed by reefs, was not committed on the high seas. The cases are so conflicting, that it seems impossible to arrive at any definite conclusions on the subject.

It seems to be conceded that the admiralty has an established jurisdiction to award damages for torts, or personal wrongs done on the high seas; and that waters within the ebb and flow of the tide, and which lie within the body of a county, are not, in England, within the admiralty jurisdiction; Coke's 4th Inst. 134; 2 Brown's Civil and Adm. Law, 111; The Nicolaas Witzen, 3 Hagg. Adm. R. 369; but that in the United States all tide waters, though within the body of a county, are within the admiralty

1 It is not necessary that the voyage should be limited to tide waters, to give admiralty jurisdiction. The Robert Morris, Wallace, Junior's, R. 33.

ined, and with great ability and research, by the Circuit Court of the United States for Massachusetts, in the insurance case of De Lovio v. Boit. (a) It was maintained, that in very early

jurisdiction, and torts committed on such waters are cognizable in the admiralty. See Curtis's Treatise on Seamen, p. 362, and the cases there cited. Nay, if the tort be one continued act, though commencing on land and be consummated on tide water, the admiralty has cognizance of it. Plumer v. Webb, 4 Mason's R. 383, 384. Steele v. Thatcher, Ware's R. 91. It is admitted, however, that the courts of common law have in this country concurrent jurisdiction over mariners' contracts, and in cases of tort committed upon the high seas. But as these courts are not competent to give a remedy in rem, the remedy is a personal suit.

In the case of The Steamboat Black Hawk, decided in the District Court for the Northern District of New York, (Conkling's Treatise, 2d edit. p. 350, note,) it was held, that seizures made on the St. Lawrence, far above tide waters, as at Ogdensburgh and on Lake Ontario, for infractions of the navigation laws of the United States, were cases of admiralty jurisdiction. The learned judge put the decision on the ground of uniform practice for half a century duly acquiesced in ; but he admitted with great candor, that the jurisdiction on the admiralty side of the court might reasonably be questioned, though it was not for that court, under the extraordinary sanction given to the practice, to renounce it. In Wyman v. Hurlburt, 12 Ohio R. 81, the court waived the question whether the great lakes, above the ebb and flow of tides, were subject to the jurisdiction of the courts of admiralty. But now, by Act of Congress of February 26th, 1845, c. 20, the district courts have the same jurisdiction in matters of contract and tort, concerning steamboats and other vessels of 20 tons burden and upwards, enrolled and licensed for the coasting trade, and employed in business of commerce and navigation between ports and places in different states and territories, upon the lakes and navigable waters1 connecting said lakes, as is now exercised and possessed by the said courts in cases of like steamboats and other vessels employed in navigation and commerce upon the high seas, or tide waters within the admiralty and maritime jurisdiction of the United States. The maritime law of the United States, as far as the same is or may be applicable thereto, shall constitute the rule of decision in such suits, in the same manner and to the same extent, and with the same equities as it now does in cases of admiralty and maritime jurisdiction, with saving of the right of trial by jury, and of a concurrent remedy at common law in competent cases.2

(a) 2 Gallison, 398. The J. D. Morton, 2 Ohio State Rep. 26.

(1) The words "navigable waters" may include an artificial communication by canal. The Young America, 1 Newb. Adm. 101.

2 The jurisdiction of the District Court in cases of admiralty does not rest on the statute of 1845, but upon the constitution of the United States, and is not limited to tide waters, but embraces the lakes and navigable rivers, through which commerce is carried on between different states or with a foreign nation. The Backus, 1 Newb. Adm. 1.

And in the case of The Jenny Lind, 1 Newb. Adm. 443, the court say, the admiralty jurisdiction has been clearly established upon the whole length and breadth of the Mississippi River, and all other public rivers as far as they are navigable from the ocean for vessels of ten tons burden. And in the case of Jackson v. Steamboat Magnolia, (20 Howard, U. S. 296,) the principles of these cases were fully affirmed, and the Supreme Court