flows, the common law and the admiralty have a divided or alternate jurisdiction. (a)

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 at Westminster, on a reference to them in 1713. (b) 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. (c) In the case of Bruce, (a) 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 high-water mark when the tide is full. The open ocean which washes the seacoast is used in contradistinction to arms of the sea enclosed within the fauces terræ, or narrow headlands and 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. (b)

(a) 1 Blackst. Comm. 112; Constable's Case, 5 Co. 106, 107; Finch's L. 75; Barber v. Wharton, 2 Lord Raym. 1452; 2 East, P. C. 803; 4 Blackst. Comm. 268; The King v. Forty-nine Casks of Brandy, 3 Hagg. Adm. 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 C. Rob. 358.

(b) Cited in Andrew, 232.

(c) King v. Soleguard, Andrew, 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, P. C. b. 2, c. 9, sec. 14; 2 East, P. C. 804; 5 Wheaton, 106, note; Com. Dig. tit. Adm. E. 7, 14; Bacon's Abr. tit. Adm. A.; United States v. Grush, 5 Mason, 290. (a) 2 Leach's Crown Cases, 1093, case 353, 4th ed.

(b) Hale, Hist. P. C. i. 424; ib. ii. 13, 18, 54; 3 Inst. 113; Constable's Case, 5 Co.

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

106 a; Lord Hale, Harg. L. T. c. 4, p. 10; United States v. Grush, 5 Mason, 290. In the United States District Court for Connecticut, January 7, 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 eighteen miles from New London, and 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, 259. In the case of the Public Opinion, 2 Hagg. Adm. 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.

In Thomas v. Lane, 2 Sumner, 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 the 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. 624, and in United States v. Pirates, 5 Wheaton, 184, that a vessel lying 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 enclosed 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 Civ. and Adm. Law, 111; The Nicolaas Witzen, 3 Hagg. Adm. 369; but that in the United States all tide waters, though within the body of a county, are within the admiralty 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

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. (c) 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 offences, 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 *368 * 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

tide water, the admiralty has cognizance of it. Plummer v. Webb, 4 Mason, 383, 384; Steele v. Thatcher, Ware, 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 ed. 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 reasona bly 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, 81, the court waived the question whether the great lakes, above the ebb and flow of the tides, were subject to the jurisdiction of the courts of admiralty. But now, by act of Congress of February 26, 1845, c. 20, the district courts have the same jurisdiction in matters of contract and tort, concerning steamboats and other vessels of twenty 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 waters 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. [Post, 369, n. 1.]

(c) 2 Gall. 398.

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; but 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 commonlaw courts. On the sea-shore or coast, high and low water mark determine 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 flows, 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 offences on the high seas, and in ports and * havens, as far * 369 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 those 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. It was considered that the decisions at common law on this sub

ject were 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. (a) 1yl

(a) Judge Story stated, in this case, that all civilians and jurists agreed that maritime contracts included, among other things, charter-parties, affreightments, marine prohibitions of England. Ib. p. 24; Waring v. Clarke, 5 How. 441; New Jersey S. N. Co. v. Merchants' Bank, 6 How. 344; The Magnolia, 20 How. 296; The Commerce, 1 Black, 574; The Belfast, 7 Wall. 624, 640. x1

1 Admiralty Jurisdiction of the United States. The Supreme Court has since decided in accordance with Judge Story's opinion, Insurance Co. v. Dunham, 11 Wall. 1; and that and other cases show that the admiralty and maritime jurisdiction of the United States is not limited by the restraining statutes or the judicial

yl The test of whether a vessel is of such a nature as to be within the admiralty jurisdiction is found in the object for which it is intended and the purpose for which it is used. If these be for commercial navigation, it is within the jurisdiction, no matter what its form or build, or its propelling power. The General Cass, 1 Brown Adm. 334; Gastrel v. A Cypress Raft, 2 Woods, 213; A Raft of Cypress Logs, 1 Flip. 543. See Cope v. Vallette Dry Dock, 10 Fed. Rep. 142. And it seems that the nature of the subject-matter alone may be sufficient to give jurisdiction, though there be neither a maritime tort or contract. Grigg v. The Clarissa Ann, 2 Hugh.

In The Hine, 4 Wall. 555, 569, Mr. Justice Miller declared it to be settled

89. A marine tort includes injuries arising from negligence as well as from positive tortious acts. Leathers v. Blessing, 105 U. S. 626; Holmes v. Or. & Cal. Ry. Co., 6 Saw. 262. An attachment of goods is sufficient to give jurisdiction where defendant is out of the district. Atkins v. Disintegrating Co., 18 Wall. 272.

r In Ex parte Easton, 95 U. S. 68, it is laid down: (1.) That the jurisdiction in admiralty of the United States courts is not limited by that of England. (2.) That it does not extend to all cases which would fall within it by the civil law and the usage of continental nations. (3.) That its nature and extent is to be determined by the decisions of the Supreme Court,