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of extensive criminal jurisdiction, and that offences of admiralty jurisdiction were exclusively cognizable by the United States; and that a marine tort on the high seas, as, for instance, the forcible rescue of a prize, was punishable by the admiralty, in the absence of positive law, by fine and * 364 imprisonment. The decision of the Supreme Court was otherwise; (a) 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. The United States courts have no unwritten criminal code to which resort can be had as a source of jurisdiction. They have none but what is conferred by congress, and this principle extends as well to admiralty and maritime as to common-law offences. (b) 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. (c)

(a) 1 Wheaton, 415.

(b) United States v. Hudson & Goodwin, 7 Cranch, 32. United States v. Coolidge, 1 Wheaton, 415. United States v. Bevans, 3 Id. 336. United States v. Wiltberger, 5 Id. 76. The jurisdiction of the Supreme Court is pointed out by the constitution; but the powers of the inferior courts are regulated by statute, and they have no powers but such as the statute gives them. Smith v. Jackson, 1 Paine's C. C. U. S.

453.

(c) 3 Wheaton, 546. So it is a well-established principle of the maritime law, that owners are responsible in the admiralty for the torts of their masters, in acts relative to the service of the ship, and within the scope of their employment. The State Rights, Crabbe, 22. The Rebecca, Ware, 187. Abbott on Shipping, pp. 398, 399. Sherwood v. Hall, 3 Sumner R. 131. It was held, in Chamberlain v. Chandler, 3 Mason's Rep. 242, that the admiralty had jurisdiction of personal torts and wrongs committed on a passenger on the high seas, by the master of the ship, whether the torts were by direct force, as trespasses, or were consequential injuries. So, in Plumer v. Webb, 4 Mason's Rep. 380, it was held, that a father or master might sue in the admiralty for wages earned by maritime service, and for torts committed on the high seas, as in the abduction of a minor or apprentice, per quod servitium amisit. If the tortious act happens in port, but is a continuing injury from sea, or if there be a trespass at sea upon property, and continued upon land, it becomes a maritime tort of admiralty jurisdiction. The courts of admiralty may award consequential damages in cases of marine tort; (Betsey Caines's case, 2 Hagg. Adm.

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 *petit jury, before, and independent of, *365 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

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 v. 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. Com. 269.

(b) 4 Rob. Rep. 74, note.

conferred by the statute of Hen. 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.

Limits of

(3.) Division line between the jurisdiction of the adadmiralty miralty and of courts of common law. 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 ad* 366 miralty 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 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.

(d) 1 Black's Com. 112. Constable's case, 5 Co. 106, 107. Barber v. Wharton, 2 Lord Raym. 1452. 2 East's P. C. 803. 4 Black's Com. 268. The King v. Fortynine 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, any thing done on the other shore, and as to enable an inquisition of the facts to be taken. (b) In the case of Bruce, (c) in * 367 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 contra-distinction 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.

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(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 Ed. 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.

(d) Hale's Hist. P. C. vol. i. p. 424. Ibid. vol. ii. pp. 13, 18, 54. 3 Inst. 113. Constable'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 Santwood 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 sea-shore, 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 boundaries 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 & 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.