Appeals, 778. Massachusetts — Adams v. Adams, Writ of supplicavit, 778. Mississippi — U. S. Circuit and District Courts, 779. New York - U. S. District Court (Northern District), Gillespie v. The Leonard, Jurisdiction of Admiralty, 779; James Topham Brady, 779. Ohio-Superior Court, Foote v. Buchanan, Trade-mark, 781; Bailey v. Berry, Joint Trespass, 782; Legislation, 782. South Carolina - Supreme Court. State v. Bank of the State, 783. Virginia-U. S. Circuit Court, In re Cæsar Griffin, 784; Evans v. City of Richmond, 784. GREAT BRITAIN - New Appointment, 785; First Report of Judicature Commission, 785; United States v. McRae, 787.

This number completes the third volume of the American Law Review. A full index to the three volumes will be published and distributed to subscribers in the course of the month. It will be paged so as to bind up at the end of this volume.

THE

AMERICAN LAW REVIEW.

VOL. III.]

BOSTON, JULY, 1869.

[No. 4.

THE LIMITS OF THE EXCLUSIVE JURISDICTION OF
ADMIRALTY IN THE UNITED STATES.

THE series of decisions by the Supreme Court of the United States, defining the jurisdiction of admiralty, rests at present with the case of The Hine v. Trevor.1

By these, a comprehensive interpretation has been given to the power conferred upon the District Courts by the Constitution, and to the Acts of 1789 and 1845. Tide-water is no longer the dividing line between the jurisdiction of admiralty and of common law. The attempts to apply the narrow doctrines of the King's Bench have been unsuccessful; and the ground taken by Judge Story, in the case of De Lovio v. Boit, relative to the subjects of admiralty jurisdiction, has been sustained, unless, perhaps, in one or two points. This extensive control of the United States Courts over maritime affairs, is conceded without question by all. But what is the exact effect of the saving clauses in the Judiciary Acts, and how far the jurisdiction of admiralty is exclusive of State Courts, have been questions, as it seems, never well understood, nor clearly laid down by the Supreme Court of the United States, until within a short time.

The consideration of our subject embraces the questions of Locality and Subject-matter, in addition to those proposed above. The second head, being well understood, we shall disregard en

tirely; the question of locality will be examined so far as it is connected with the Act of 1845, and with the series of cases on which rests the case of The Hine v. Trevor. These decisions extend over a period of forty years from the case of The Thomas Jefferson.1 In this, and in the three cases following, it was held that the Act of 1789 confined the jurisdiction of admiralty to causes arising on tidewater. Accordingly, with the intention of meeting the necessities of the already important and rapidly increasing internal commerce of the United States, the Act of 1845 was passed. This was prepared by Judge Story, and is said to have received the approval of all the judges of the Supreme Court.2

In the year 1851, the case of The Genesee Chief, resulting from a collision on Lake Ontario, came before the Supreme Court of the United States, under this act, from the Northern District of New York. But before examining the case, a word should be said of the opinions held concerning the statute.

4

Judge Conkling, in his work on Admiralty, says, "In the first case that arose under this act, very soon after its passage, in the District Court for the Northern District of New York, its constitutionality was strenuously controverted at bar, and was doubtless assumed rather than formally adjudicated upon by that court.” Many of the lawyers of the Western States supposed that the admiralty jurisdiction over all inland waters - rivers as well as lakes

depended upon it.5 Some considered it void, because not authorized by the Constitution, and on the ground that Congress cannot extend the jurisdiction of the District Courts to cases and subjects not enumerated in the Constitution. The objection was also made that the statute was an accumulation of power in the Central Government, which is contrary to the principles of our free institutions.6 The District Courts, meantime, avoided the discussion of the act, and it remained unsupported by judicial opinion, excepting a dictum of Story, in the case of The Thomas Jefferson, and the opinion of Congress, until the case of The Genesee Chief. By this important and interesting case, the previous decisions were overruled, and admiralty jurisdiction extended to all navigable waters. The counsel for the appellants

OF ADMIRALTY IN THE UNITED STATES.

599

contended that the Act of Feb. 26, 1845, was unconstitutional, -"first, because not a regulation of commerce, and therefore not within the commercial clause of the Constitution; and, second, because the constitutional grant of admiralty powers did not extend to cases originated above tide-water, and Congress cannot extend it by legislation." The cases of Marbury v. Madison,1 and Hodgson v. Bowerbank,2 were cited as analogous. Chief Justice Taney, in giving the decision of the court, said, "The admiralty jurisdiction granted to the Federal Government by the Constitution of the United States, is not limited to tide-water, but extends to all public navigable lakes and rivers. . . . If the validity of the act depended upon the power of Congress to regulate commerce, it would be unconstitutional ... If the law, therefore, is constitutional, it must be supported on the ground that the lakes and navigable waters connecting them are within the scope of admiralty and maritime jurisdiction, as known and understood in the United States when the Constitution was adopted."

It is expressly stated in this decision that the jurisdiction which it establishes is independent of the Act of 1845; and although its constitutionality is hypothetically recognized, the real effect of the statute is not made apparent. Judge Conkling, in remarking on the case, says, "It is a serious question whether the Act of 1845 is not superseded and rendered nugatory thereby."3 In the case of The Magnolia, although not essential to the decision of the point at issue, the opinion is given by the court, that the Act of 1845 was necessary to confer admiralty jurisdiction over the great lakes upon the District Courts.

In the case of Fox v. Revenue Cutter, Judge Wilson says, "It is clear, that in passing this statute, Congress looked for its authority solely to the 8th sect. of Art. 3 of the Constitution, which declares that Congress shall have power to regulate commerce among the several States.' We know of no rule of construction by which the Act of 1845 should be held to abridge any of the admiralty powers conferred by the statute of 1789." This opinion conflicts with both that in the case of The Magnolia and of The Genesee Chief.

Although the jurisdiction thus established was sustained by the

V

6.

Supreme Court in several cases during the next ten years, and largely administered in the western districts, no farther light is thrown upon the statute, until the case of The Hine v. Trevor. Mr. Justice Miller, in summing up his opinion, here says,

"1st. The admiralty jurisdiction to which the power of the Federal judiciary is by the Constitution declared to extend, is not limited to tide-water, but covers the entire navigable waters of the United States.

"2d. The jurisdiction of admiralty causes arising on the interior waters of the United States, other than the lakes and their connecting waters, is conferred by the Act of Sept. 24, 1789.

"3d. The admiralty jurisdiction exercised by the same courts on the lakes, and waters connecting those lakes, is governed by the Act of Feb. 26, 1845. The act of 1845 is a limitation of the powers granted by the Act of 1789, as regards cases arising upon the lakes and navigable waters connecting said lakes, in the following particulars: (1). It is limited to vessels of twenty tons' burden and upwards, enrolled and licensed for the coasting trade; (2). To vessels employed in commerce and navigation between ports and places in different States; (3). It grants a jury trial, if either party shall demand it."

In dismissing the discussion of the statute of 1845, with reference to the question of locality, we beg leave to refer the reader to the cases below, in which very nice lines have been drawn in regard to it.1

We are now ready for the question, how far the jurisdiction of the courts of the United States is exclusive of State courts.

The important difference between admiralty and common law is, that the proceedings of the former are after the forms of the civil law, without a jury, and before a single judge. Their object is to afford a speedy and equitable remedy in cases arising from the exigencies peculiar to maritime affairs. Jurisdiction may be exercised either in personam or in rem, as either form is best fitted to afford the desired remedy. When it is impossible to make use of the proceeding in rem, in cases where there is no lien by the general maritime law, admiralty may proceed by arrest and citation of the person.

But the peculiar and effective remedy, is the process in rem. By this, the suit is brought against the thing, and not the person.

1 Scott v. The Young America, 1 Newb. 101; McCormick v. Ives, Abbott Ad. 418; The Farmer, Gilp. 524, 533; The Bolivar, Olc. 474; The Commerce, 1 Black, 574.