have already seen that the courts of the United States do not assume any jurisdiction which is not expressly conferred by an * act of Congress; and the argument for the extension of *372 the civil jurisdiction of the admiralty beyond the limits known and established in the English law, at the time of the formation of our Constitution, is not free from very great difficulty. It has been made a question, what were the "cases of admiralty and maritime jurisdiction," within the meaning of the Constitution of the United States. It is not in the power of Congress to enlarge that jurisdiction beyond what was understood and intended by it when the Constitution was adopted, because it would be depriving the suitor of the right of trial by jury, which is secured to him by the Constitution in suits at common law; and it is well known that in civil suits of admiralty and maritime jurisdiction, the proceedings are according to the course of the civil law, and without jury. If the admiralty and maritime juris vessel, have a present standing in the admiralty, and come within its jurisdiction, and can sue in personam, and, where there is a lien, in rem. The jurisdiction of the English admiralty has been enlarged, and doubtful points settled by the statute of 3 and 4 Victoria, c. 68, passed 7th August, 1840. It is entitled "An Act to improve the Practice and extend the Jurisdiction of the High Court of Admiralty of England." The Dean of the Arches is made an assistant judge of the admiralty court, with concurrent authority. Jurisdiction is given over the claims of mortgagees of ships, over all questions as to the title to ownership of any ship or vessel, or the proceeds thereof remaining in the registry, arising in any case of possession, salvage, damage, wages, and bottomry. Jurisdiction is given over all claims and demands in the nature of salvage, for services rendered to, or damages received by, any ship or sea-going vessel, or in the nature of salvage or for necessaries supplied to any ship or sea-going vessel, or in the nature of salvage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county or upon the high seas at the time. The court may direct issues of fact to be tried by a jury, before a judge of one of the courts of law at Westminster, and the judge of the admiralty is to have the like protection as other judges in the exercise of his jurisdiction. Concurrent jurisdiction over all these subjects and causes of action is retained in the courts of law. A synopsis of the admiralty jurisdiction in this country is stated to contain, 1. Contracts between part owners, petitory, and possessory suits; 2. Charter-parties and affreightments; 3. Bottomry and hypothecation; 4. Contracts of material men; 5. Insurance; 6. Wages; 7. Salvage, civil and military; 8. Averages, contributions, and jettisons; 9. Pilotage; 10. Ransom; 11. Surveys; 12. Maritime torts and trespasses. The Jurist, for January, 1841, p. 408. All the above causes of action, except those arising on insurance, ransom, and surveys, now belong to the English court of admiralty. diction of the district courts embraces all maritime contracts, then suits upon policies of insurance, charter-parties, marine hypothecations, contracts for building, repairing, supplying, and navigating ships, and contracts between part owners of ships, must be tried in the admiralty by a single judge, to the exclusion of the trial by jury; and the state courts would be devested, at one stroke, of a vast field of commercial jurisdiction. The words of the Judiciary Act of 1789, sec. 9, are, that the district courts shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea, by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas." But the act adds, by way of qualification to this designation of admiralty jurisdiction, these words, viz.: "saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it." 1 The act of Congress is rather ambiguous in its meaning, and leaves it uncertain whether it meant to consider seizure on tide waters, in ports, harbors, creeks, and arms of the sea, as cases of admiralty and maritime jurisdiction, or as *cases *373 simply within the cognizance of the district courts; for the expression is including, that is, comprehending, either within the cognizance of the court, or within the class of cases of admiralty jurisdiction, all seizures under laws of impost, navigation, and trade, on waters navigable from the sea, by small vessels of ten tons burden. This act has, however, been construed to put a construction upon the words "admiralty and maritime jurisdiction," conformable to the claims of the civilians, and in opposition to the claims of the common law tribunals; and there is a series of decisions in the Supreme Court of the United States to that effect. In the case of The United States v. La Vengeance, (a) a French privateer was libelled in the District Court of New York for an attempt to export arms from the United States to a foreign country contrary to law. She was adjudged to be forfeited to the United States. The decree, on appeal to the circuit court, was reversed. On a further appeal to the Supreme Court of the 1 Ante, 869, n. 1. (a) 3 Dallas, 297. United States, it was contended, that this was a criminal case, both on account of the manner of prosecution, and the matter charged; and, therefore, that the decree of the district court was final; and that it ought likewise to have been tried by a jury in the district court; and that, if it was even a civil suit, it was not a case of admiralty and maritime jurisdiction. To render it such, the cause must arise wholly upon the sea, and not in a bay, harbor, or water, within the precincts of any county of a state. But the Supreme Court decided that it was a civil suit, not of common law, but of admiralty and maritime jurisdiction. The seizure was on the waters of the United States. The process was in rem, and did not, in any degree, touch the person, and no jury was necessary. Afterwards, in the case of The United States v. The Schooner Sally, (b) the vessel was libelled in the district court, as *374 forfeited for being concerned in the slave-trade; and this was also held, on appeal, to be a case, not of common law, but of admiralty jurisdiction. So, in the case of The United States v. The Schooner Betsey, (a) it was held, that all seizures under the act of Congress suspending commercial intercourse with a foreign country, and made on waters navigable from sea, by vessels of ten tons burden, were civil causes of admiralty jurisdiction, being proceedings in rem, and not according to the course of the common law, and were to be tried without a jury. The court said, that the place of seizure being on navigable waters decided the jurisdiction, and that the act of Congress meant to make seizures on waters navigable from the sea civil causes of admiralty and maritime jurisdiction. In this last case, the counsel for the claimant contended that the seizure was made within the body of a county, for a breach of a municipal law of trade, and that though it belonged to the jurisdiction of the district court, it was not a case of admiralty cognizance. All seizures, in England, for violation of the laws of revenue, trade, or navigation, were tried by a jury in the Court of Exchequer, according to the course of the common law; and though a proceeding be in rem, it is not necessarily a proceeding or cause in the admiralty. In the case of the Samuel; (b) where the vessel and cargo were seized and libelled, and condemned in the district court of Rhode (b) 1 Wheaton, 9. (b) 2 Cranch, 406. * Island, for a breach of the non-importation laws of the United States, the same objection was made upon appeal to the Supreme Court, and it was again overruled, on the authority of the preceding cases. The same objection was taken in the case of the Octavia; (c) and it was contended, that the word including, in the 9th section of the Judiciary Act, ought not to be construed cumulatively; and that a suit might be a cause of admiralty and maritime jurisdiction, and yet triable under the common law, proceeding *by information, instead of the civil law 375 process by libel. The objection was again overruled. The last case that brought up the same point for review and discussion was The Sarah; (a) and the Supreme Court there recognized the marked and settled distinction between the common law and the admiralty jurisdictions of the district courts. In seizures made on land, the district court proceeds as a court of common law, according to the course of the English Exchequer, on information in rem, and the trial of issues of the fact is to be by jury. (6) But in cases of seizures on waters navigable from the sea, by vessels of ten or more tons burden, the court proceeds as an instance court of admiralty, by libel in rem, and the trial is by the court. 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 information, though the seizure was made upon navigable waters, and they proceed there to try the fact on which the forfeiture arises, by jury. (c) Informations are filed in the Court of Exchequer for forfeiture, upon seizure of property, for breach of laws of revenue, impost, navigation, and trade. In the case of The Attorney-General v. Jackson, (d) the seizure was (c) 1 Wheaton, 20. (a) 8 Wheaton, 391. (b) Thompson, J., 1 Paine, 504; United States v. Fourteen Packages, Gilpin, 235 (c) Attorney-General v. Le Merchant, 1 Anst. 52. (d) Bunb. 236. 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 376 said, (e) that informations 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 a 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 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.1 It is probable, however, that the Judiciary 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 is 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, however, much colonial precedent for this extension of admiralty jurisdiction. The viceadmiralty courts, in this country, when we were colonies, and (e) Harg. L. T. 227. 1 See Union Ins. Co. v. United States, 6 Wall. 857, n. 1. See, also, 302, n. 1. 759, and other cases cited, ante, 2 Ante, 369, n. 1. |