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himself to the case of the United States vs. La Vengeance,* and others, that have since been decided in conformity to it:

“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 informations, though the seizure was made upon navigable waters, and they proceed there to try the fact on which the forfeiture arises by jury. Informations are filed in the Court of Excheguer for forfeiture upon seizure of property, for breach of laws of revenue, impost, navigation, and trade. In the case of the Attorney General vs. Jackson, 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, that information 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 question whether they had 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 twenty 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 judicial 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 laws 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 saves 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 La Vengeance, on which all the subsequent decisions of the Supreme Court have rested, was sufficiently considered. There is,

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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. 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.

“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

inay 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, anything 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 the territories of the admiralty 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 vigour of trial by jury,” Vol. i. pp. 349–352.

The last observations point to the pretensions of the admiralty, as stated and sanctioned in the case of De Lovio vs. Boit.* We confess that we once regarded this sally of the learned judge who decided that case as a notable piece of knight errantry, very ingenious, very romantic, and quite harmless. We regarded, with indulgence, the natural disposition of a mind much addicted to certain studies, to overrate their importance, and make their application as universal as possible-like the musician in Cicero, who explains every thing by the principles of harmony, and the dancing-inaster in Moliere, who considers his own art as the foundation of all the sciences. We even sympathised with what we thought the generous and uncalculating zeal of such an enterprise, and felt all the pathos of the following very touching appeal. “In both these cases, (enforcing the judg

2 Gall, p. 398.

ments of foreign admiralty courts and proceeding in rem upon bottomry bonds executed in foreign parts) the authority of the admiralty has been admitted in the most ample manner, and in a recent case of bottomry, triumphantly upheld against every objection. These melancholy remains of its former splendour stand upon the ancient foundations of the admiralty before the reign of Richard II. and if they have survived the assaults of enmity and time, it is because the principles on which they rest, are solid and immoveable.”* But we did not, at that time, think it possible that these notions should be gravely entertained by any minds not possessed with the same passion. We think somewhat differently now. It would not surprise us much to see these exploded doctrines of unsettled and barbarous times re-established amongst us, and the flag of “the Admiral” floating triumphantly over the vast field of maritime contracts.

Having already exceeded the limits allotted to this dry artiele, we shall not enter into a detailed discussion of the subject, but we cannot refrain from making a very few remarks upon it before we lay down our pen.

It would be difficult to support a paradox with greater ingenuity and learning, and in general, in a more able and persuasive manner than the very learned judge who decided De Lovio vs. Boit, has displayed in defence of his. He has done all that could be done for the cause. Si Pergama dextrâ, &c. If any one could re-edify the crumbled and mouldering fabric of the admiralty, it were he. But it appears to us that the reasoning of Lord Coke, in the 4th Institute,t is as conclusive as it is simple and obvious. In his answer to the sixth objection, he says * The like answer as to the first. And it is further added, that for the death of a man, and of mayhem (in those two cases only) done in great ships, being and hovering in the maine streame only, beneath the points of the same rivers nigh to the sea, and po other place of the same rivers, nor in other causes, but in those two only, the admiral hath cognisance. But for all contracts, pleas, and querels made or done upon a river, haven or creek, within any county of this realm, the admiral, without question, hath not any jurisdiction, for then he should hold plea of Things done within the body of a county, which are triable by verdict of twelve men, and meerly determinable by the common law, and not within the court of the admiralty, according to the civil law. For that were to change and alter the laws of the realm in those cases, and make those contracts, pleas and querels triable by the common laws of this realm, to be drawu ad aliud

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examen, and to be sentenced by the judge of the admiralty according to the civil laws."

This statement rather than argument, in our opinion, exhausts the whole subject. All that is necessary to be done by the defenders of the common law and the trial by jury in this matter, is, to explain the text of Coke, and refute the cavils (for they can be nothing more) of his adversaries. But the light in which he puts the controversy is entirely satisfactory to men of plain sense. Suppose, without having regard to precedients, one were asked, whether, from the general spirit of the English law, he thought it probable that such an anomalous and foreign jurisdiction were tolerated by it? Could he possibly doubt about it ? Surely he would suppose that the jurisdiction of the common law courts was co-extensive with the realm and all its social concerns, wherever that jurisdiction could be effectualwherever every right could be protected, and every wrong redressed by it. He could not conceive how a people who have been in all ages so jealous on the subject of their own institutions—especially so stout and heroic in defending the trial by jury, and the principles of magna chartacould think of admitting an exception of so important a kind, and that too without the smallest occasion for it. For, as to the notion of its being so advantageous to have maritime cases disposed of velis levatis, according to their phrase, that would go too far to be entertained even for a moment. Speedy justice is, doubtless, a very good thing, but pure justice and public liberty are still better-at least so have thought the people of England in all ages. Why; we repeat it, should there be more than one system of law in a country, where that law is competent to do perfect justice? Why should the authority of a tribunal depend upon the ebbing and flowing of the tide in a river within the body of a county any more than

upon the changes of the moon. As to the divisum imperium on the sea-shore, there is reason in that, because if the jurisdiction is to stop at the bounds of a territory, as it must somewhere, and if the sea be assumed as the proper boundary, the extent of its waters is a good-enough practical line of demarcation. At all events, being settled, it is not worth while to disturb it for the purpose of establishing another that may not be a jot better. But is there any sense in the pretension of exercising jurisdiction in one river, or one part of a river, and not another, because the tide flows or does not flow there, while there are tribunals open that can do ample justice whether it flows or not? The analogy of chancery is really against the friends of the admiralty, who so confidently rely upon it. The true theory of our jurisprudence is, that that court entertains


jurisdiction only where the complaint is remediless at law. We are, of course, aware that there are cases of concurrent jurisdiction, and that even where the common law courts adopting the principles of equity, have administered the same remedies, the jurisdiction of the latter is not considered as necessarily gusted. But these are mere abuses. Mr. Brougham has, we perceive, in his scheme of reform, declared war against trusts, and we shall, on a future occasion, make some further remarks upon the excesses or superfluities of the Prætorian jurisdiction. As for the case of hypothecation, it comes within our principle, and is a fair exception, because the common law courts do not afford the stipulated remedy. The other exception of seaman's wages, is, as Lord Holt considers it, a mere indulgence, and a very convenient

way of settling such small matters. Another important consideration,and one that greatly strengthens (if any thing were wanted to strengthen) the decided opinion of Lord Coke, is, that the authorities cited on the other side are mostly taken from barbarous and unsettled times, or from foreign

Suppose it could be shown that the statutes of Richard II. do not mean what that illustrious lawyer says they do, and that there were, at remote periods, even stronger and more numerous precedents in favour of the admiral's usurpations, than judge Story's indefatigable researches have yet discovered. How much ought they to weigh, at this time of day, against the reason of the thing, the analogies of the law, the genius of the constitution, and the almost unbroken current of authorities for a century and a half together. Nearly all that has ever been done to make England what she is, and to lift up the common law to its present just supremacy in that realm, over the tyrannical forms and principles of other systems, has been accomplished since Lord Coke's time. His commanding authority and virtuous efforts and example eminently contributed to bring about these improvements. When Mr. Justice Buller is quoted to shew that the first of our common lawyers was inimical to the admiralty, it ought to be remembered that he was equally so to every thing else that savored of arbitrary power and of hostility to the liberties of Englishmen. Some indulgence may be extended-perhaps an especial degree of authority conceded to that incorruptible and undaunted champion of magna chartathe author and proposer of the Petition of Rights, and one of the founders of that very freedom which we now enjoy. Those who overthrew the Star Chamber, and the High Commission Court, would scarcely tolerate the pretension of the admiralty--while on the contrary,

Qui Bayium non odit, amettua carmina Mævi.

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