"Such actions may also be maintained in personam against a defendant in the common-law courts, as the common law gives; all in consistence with the grant of admir-authorized by the statute. But, even if it alty powers in the 9th section of the judiciary act."

was not so authorized, and was simply a direct proceeding to enforce a lien upon the So, in the case at bar, we have a proceed- vessel and sell it in satisfaction thereof, I ing authorized by the statute in which the insist that the state courts may entertain owner is named, and notice required to be jurisdiction. It was held in Arndt v. Griggs, served on him, and notice in fact served, an 134 U. S. 316, 33 L. ed. 918, 10 Sup. Ct. Rep. appearance of the defendant, and an oppor-557, that a state may provide by statute tunity to try the merits of the claim, as in that the title to real estate within its limits any other civil action.

navigable waters of the United States; and I have no disposition to question the correctness of those decisions, or in any way limit their scope. But what is admiralty? It is the law, not of the water, but of the seas. As said in Edwards, Admiralty Jurisdic tion, p. 29:

jury, or modify the practice of the court in | Constitution was framed, but extends to all any other respect that it deems more conducive to the administration of justice." Suppose Congress should exercise this power, and substitute for the procedure in admiralty courts the common-law practice, and make it the only method of procedure therein. What would become of the argument that the state cannot resort to the procedure obtaining in admiralty courts for enforcing the rights of claimants? Must it, then, desist from common-law remedies because they have been adopted in admiralty and go back to that form of procedure now obtaining in the admiralty courts? Can it be that the power of a state to vest jurisdic-diction." tion in one of its courts depends upon the form of procedure which it adopts?

Why should we be so anxious to drive parties having small claims away from their local courts to courts not infrequently held at a great distance? Why should we be so anxious to force litigants into a court where there is no constitutional right to a trial by jury? I, for one, believe that the right of trial by jury is not to be taken away from a claimant unless it be a case coming clearly within the well-established limits of equity and admiralty cases. I do not like to see these provisions, which have so long been the boast of our Anglo-Saxon system of procedure, frittered away by either legislative or judicial action.

"But its jurisdiction may be said to rest generally on the following considerations: First, the nature of the property to be adjudicated upon; secondly, the question to be decided; thirdly, the origin of the cause; and fourthly, the locality; and these must be of the sea to give the admiralty a juris

So, also, in Edwards v. Elliott, 21 Wall. 532, 553, 22 L. ed. 487, 491, is this declaration of this court:

"Maritime contracts are such as relate to commerce and navigation, and, unless a contract to build a ship is to be regarded as a maritime contract, it will hardly be contended that a contract to furnish the materials to be used in accomplishing that object can fall within that category, as the latter is more strictly a contract made on land, and to be performed on land, than the former, and is certainly one stage further removed from any immediate and direct relation to commerce and navigation."

It grew up out of the fact that the ocean is not the territorial property of any nation, but the common property of all; that vessels engaged in commerce between the different nations ought, so far as possible, to be subject to a uniform law, and not annoyed by the conflicting local laws and customs of the several nations which they visit. I do not mean that the several maritime nations did not establish different rules, or that there is not some dissimilarity in their maritime laws, for, as long as each nation is the master of its own territory, it may legislate as it sees fit in reference to maritime matters coming within its jurisdiction, and yet this does not abridge the fact that admiralty"

Further, it seems a great hardship that a party who has been brought into a court of general jurisdiction, with full opportunity to litigate the claim of the plaintiff, and has carried the case through all the courts of the state without ever disputing its validity, should now obtain a reversal of the entire proceedings when such reversal may operate to prevent the collection of the debt. By 33 of chapter 418, heretofore referred to, the lien expires at the expiration of twelve months from the time the debt was contracted. Of course, the lien is now gone. The canal boat has very likely disappeared, and the owner may be entirely irresponsible. | grew up out of the thought of having a Even if these objections to the opinion and judgment of the court are wholly without foundation, there is still another, broader and deeper. I do not believe that, under the true interpretation of the Constitution, the admiralty jurisdiction of the Federal courts extends to contracts for the repairs of vessels engaged wholly in commerce within a state. I recognize the fact that this court has decided in a series of cases, commencing with The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, that the admiralty jurisdiction of the Federal courts is not limited by tide waters, as admiralty jurisdiction was understood to be limited, both in Great Britain and in this country, at the time the

common law of the seas. It was well said by Mr. Justice Bradley in The Lottawanna, 21 Wall. 558, 572, sub nom. Rodd v. Heartt, 22 L. ed. 654, 661:

"Perhaps the maritime law is more uniformly followed by commercial nations than the civil and common laws are by those who use them. But, like those laws, however fixed, definite, and beneficial the theoretical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have. But the actual maritime law can hardly be said to have a fixed and definite form as to all the subjects which may be embraced within its scope. Whilst it is true that the great mass

tide as the test, because it was a convenient one, and more easily determined the character of the river. Hence, the established doctrine in England, that the admiralty jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters.

of maritime law is the same in all commer- tions, meant nothing more than public riv cial countries, yet in each country peculiari-ers, as contradistinguished from private ties exist, either as to some of the rules, or ones; and they took the ebb and flow of the in the mode of enforcing them. Especially is this the case on the outside boundaries of the law, where it comes in contact with, or shades off into, the local or municipal law of the particular country, and affects only its own merchants or people in their relations to each other. Whereas, in matters affecting the stranger or foreigner, the "At the time the Constitution of the Unitcommonly received law of the whole com-ed States was adopted, and our courts of admercial world is more assiduously observed, miralty went into operation, the definition -as, in justice, it should be. No one doubts which had been adopted in England was that every nation may adopt its own mari-equally proper here. In the old thirteen time code. France may adopt one, England another, the United States a third; still, the convenience of the commercial world, bound together, as it is, by mutual relations of trade and intercourse, demands that, in all essential things wherein these relations bring them in contact, there should be a uniform law founded on natural reason and justice. Hence the adoption by all commercial nations (our own included) of the general maritime law as the basis and groundwork of all their maritime regulations. . . . Each state adopts the maritime law, not as a code having any independent or inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted, and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption it would not be law. And thus it happens that, from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common comes to be the common maritime law of the world."

In the opinion of Chief Justice Taney, in The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, in which this court for the first time held that the jurisdiction of the admiralty courts extended above tide water, the argument is thus stated (p. 454, L. ed. p. 1063):

states, the far greater part of the navigable waters are tide waters. And in the states which were, at that period, in any degree commercial, and where courts of admiralty were called on to exercise their jurisdiction, every public river was tide water to the head of navigation. And, indeed, until the discovery of steamboats, there could be noth ing like foreign commerce upon waters with an unchanging current resisting the upward passage. The courts of the United States, therefore, naturally adopted the English mode of defining a public river, and, consequently, the boundary of admiralty jurisdiction. It measured it by tide water. And that definition, having found its way into our courts, became, after a time, the familiar mode of describing a public river, and was repeated, as cases occurred, without particularly examining whether it was as universally applicable in this country as it was in England."

Again, as said by this court, in The Commerce, 1 Black, 574, 579, sub nom. Commercial Transp. Co. v. Fitzhugh, 17 L. ed. 107, 109:

"All such waters are, in truth, but arms of the sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself."

Such being the general nature of admiralty, and the jurisdiction of its courts being understood, at the time of the adoption of our Constitution, to relate to the ocean and the arms thereof, with the view of uniform

"In England, undoubtedly the writers up-ity in respect to international commerce, on the subject, and the decisions in its courts what was granted to the general government of admiralty, always speak of the jurisdic- when to its courts was given exclusive ju tion as confined to tide water. And this risdiction over "all cases of admiralty and definition in England was a sound and rea- maritime jurisdiction?" Did it mean that sonable one, because there was no navigable the judicial power of the United States stream in the country beyond the ebb and should extend to controversies respecting flow of the tide; nor any place where a port contracts and torts concerning every vessel could be established to carry on trade with upon all the waters of the several states? a foreign nation, and where vessels could en- It is not pretended that it did. Take an inter or depart with cargoes. In England, land lake, wholly within the limits of the therefore, 'tide water' and 'navigable water' territory of a state and having no connecare synonymous terms, and 'tide water,' tion with the ocean. The admiralty juriswith a few small and unimportant excep- 'diction of the Federal courts does not extend

$52

Can it be that, having such power before the waters are connected with the ocean, it loses that power by the act of connecting the waters of the ocean, and is deprived of its thitherto unquestioned control over the remedies it chooses to provide?

But it is said that, given the fact that the admiralty jurisdiction of the Federal courts extends to all navigable waters of the United States, and that such jurisdiction is exclusive, it follows that, the moment any navigable waters are connected with the ocean, the jurisdiction of the Federal courts over those waters becomes exclusive. In this case we touch upon the difference between contracts and torts. As said in The Belfast, 7 Wall. 624, 637, 19 L. ed. 266, 270:

to contracts or collisions in respect to, or | still retain jurisdiction to enforce claims for upon, such waters. The Montello, 11 Wall. repairs, but only by proceedings according 411, 20 L. ed. 191. But why should the ad- to the course of the common law, I reply miralty jurisdiction of the United States that, while it remained still a landlocked courts not extend to landlocked waters lake with no connection with the ocean, the wholly within the limits of a state, when it state of New York having full jurisdiction, does extend to waters having connection could, as we have seen, resort to any prowith the ocean? Clearly, as shown by the ceeding it saw fit for the enforcement of quotation from Chief Justice Taney's opin- claims for repairs. It has full control over ion in The Genesee Chief v. Fitzhugh, be- its own procedure, and may change and alter cause, since the use of steam, foreign com- it as it sees fit. merce may extend into such waters, and, therefore, the full exercise of the admiralty jurisdiction which concerns the law of the sea requires that that jurisdiction should be coextensive with waters which may be traversed by ocean-going vessels. It mat ters not whether such waters are natural or artificial highways, canals or rivers. If they open to the ocean, or are connected with the ocean, they become, or may become, the highways of ocean commerce, and, therefore, in order that the admiralty jurisdiction may be fully exercised, it was held, and rightfully, in The Genesee Chief v. Fitzhugh, that it extends to all navigable waters of the United States. Take the case of a landlocked lake within the limits of New York. Unquestionably, the state has full jurisdiction over its waters and the vessels traversing them. The admiralty courts of the United States would not assume any jurisdiction. Can it be that, if the state of New York constructs a canal, by which the waters of that lake are connected with the ocean, it is deprived of its full jurisdiction over those waters and the vessels traversing them? Doubtless, to a certain extent, and for the purpose of fully effectuating the admiralty jurisdiction of the nation, the Federal courts in admiralty would have a certain jurisdiction. Take the case of The Diana, Lush. 539, in which Dr. Lushington assumed jurisdiction over a collision between two British vessels in the Great North Holland canal. Can it for a moment be supposed that the English admiralty courts would take jurisdiction of a claim for repairs made on a Dutch canal boat in such canal? Or, to bring the case nearer home, would the British admiralty | courts take jurisdiction of the claim of this plaintiff for the work done upon the defendant's canal boat? Or, would the admiralty courts of the United States take jurisdiction of a like action brought for repairs done to a canal boat on the canal between Liverpool | and Manchester? Clearly, these matters are of local significance, and of local significance alone.

If it be said that the state of New York, in the case cited, would, notwithstanding the construction of a canal between the thitherto landlocked lake and the ocean,

"Principal subjects of admiralty jurisdiction are maritime contracts and maritime torts, including captures jure belli, and seizures on water for municipal and revenue forfeitures.

"(1) Contracts, claims, or service, purely maritime and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty.

"(2) Torts or injuries committed on navigable waters, of a civil nature, are also cognizable in the admiralty courts.

"Jurisdiction in the former case depends upon the nature of the contract, but in the latter it depends entirely upon locality."

We have here no matter of torts, but simply one of contract. The question, therefore, is not one of locality, but one of the nature of the contract. The contract was for work done, not on an ocean-going vessel or one capable of engaging in foreign commerce, or, like a tug, The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930, one which can be used directly in assisting foreign commerce, but a canal boat necessarily used only on inland waters, and in fact only so used. Can this fairly be adjudged a maritime contract? I think not. Wilson v. Lawrence, 82 N. Y. 409; Edwards v. Elliott, 21 Wall. 532, 22 L. ed. 487. In addition to the fact that this boat was designed primarily for use upon a canal, to be drawn by animals moving on the land, the place at which the work was done is also worthy of consideration. While the admiralty jurisdiction may extend to canals, yet the United States

*55

have no such exclusive control over canals APPEAL from the Circuit Court of the

United States for the Northern District of California to review an order denying a writ of habeas corpus. Affirmed.

The facts are stated in the opinion.
Messrs. W. C. Van Fleet and W. B.*
Treadwell for appellant.

Messrs. U. S. Webb, E. B. Power, and 0.
N. Post for appellee.

Mr. Justice McKenna delivered the opinion of the court:

Appeal from an order denying a writ of habeas corpus. The respondent is the warden of the state prison of the state of California, at San Quentin, and holds the petitioner in custody under a judgment of the superior court of San Luis Obispo county, state of California, in which court he had been indicted, tried, and found guilty of the crime of murder, and sentenced to be hanged.

as over natural navigable waters. The canal was built by the state, is owned by the state, and it cannot for one moment be assumed that the national government can interfere to restrict the state as to the size of the canal, the depth of water, the construction of bridges, or other things in respect to which it has full control over the natural navigable waters. It seems an anomaly that, when the state builds a waterway and owns a waterway, and has a general control over that waterway, it cannot provide as it sees fit for enforcing claims for work done on vessels navigating such highway when the vessels are of a character which prevents them being used for any foreign commerce. Recapitulating: I dissent from the opinion and judgment of the court, because, first, I think the contract, being made on land, for work to be done on land, and in fact done upon the land, is not a maritime contract, and therefore cannot be a subject of admiralty jurisdiction. Second, the proceeding which was instituted was authorized by the statutes of the state, and in its essential features an ordinary proceeding according to the course of the common law, which may always be resorted to even in re-supreme court of the state of California, and spect to contracts which are of a strictly maritime nature. Third, because the grant to the national government over admiralty and maritime matters was in furtherance of commerce between this nation and others, and designed to secure uniformity in respect thereto, and does not extend to contracts made in respect to vessels which are incapacitated from foreign commerce, designed and used exclusively for mere local traffic within a state.

I am authorized to say that the Chief Justice and Mr. Justice Peckham concur in this dissent.

Mr. Justice Harlan also dissents.

(191 U. S. 60)

BURT ROSS, Appt.,

V.

MARTIN AGUIRRE, Warden of the State
Prison of the State of California, at San
Quentin, California.

Statutes-subject expressed in title.

The title of an amendatory state statute, which designates the particular sections of the Code of Civil Procedure which it purports to amend, satisfies a constitutional requirement that every act shall embrace but one subject, which subject shall be expressed in its title.

[No. 19.]

The petition under review is the second presented to the circuit court. The first was denied on the ground "that application for relief on behalf of said Burt Ross should first be made to the courts of the state." Thereupon a petition was presented to the

denied. A writ of error to this court was also denied. The ground of the petition is that the grand jury by which the indict ment was found was not selected in accordance with law, and that, therefore, his conviction, sentence, and commitment do not constitute due process of law, and that he is deprived of his liberty in violation of the 14th Amendment of the Constitution of the. United States.

*By the Constitution of the state of California no person can be held for a crime unless on information, after examination and commitment by a magistrate, or an indictment by a grand jury. Const. 1879, § 8. By §§ 204 to 211, inclusive, of the Code of Civil Procedure of the state (prior to the amendments hereinafter stated), it was made the duty of each of the superior courts of the state to fix, by order, the number of grand jurors and trial jurors required for the transaction of business and the trial of causes during the ensuing year; and it was made the duty of the boards of supervisors of the counties, upon the making of said order, to select from the last preceding assessment roll a list of persons competent and suitable to serve as grand jurors, and also a list of persons to serve as trial jurors, and certify said lists, and place the same with the county clerk, who, upon receiving them, was required to file them in his office, "and write down the names con

Argued and submitted October 14, 1903. De- tained thereon, on separate pieces of paper,

oided November 2, 1903.

of the same size and appearance, and fold