committed upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States. But the crimes in any river, bay, &c., to be cognizable, must be committed out of the jurisdiction of any particular state, except it be conspiracies to defraud insurers; and it further provided, that the act was not to deprive the state courts of jurisdiction over the same offences. As the state courts have jurisdiction of offences committed within arms of the sea, creeks, havens, basins, and bays, within the ebb and flow of the tide, and within the body of a county, the jurisdiction of the circuit courts of the United States was not extended by the statute to those cases. (a) 1

(a) United States v. Grush, 5 Mason, 290. In the case of the United States v. Davis & Hanlon, in the Circuit Court of the United States for the District of New York, and of the United States v. Jackson (2 N. Y. Legal Observer, 3, 35), it was held that the federal courts have no jurisdiction under the act of Congress of April, 1790, of the crime of larceny, committed on board of an American vessel lying in the port of Savannah, in Georgia, nor if committed within the local jurisdiction of any foreign power. It would have been otherwise if committed on board the vessel on the high seas. The acts of Congress of April 30, 1790, c. 9, and of March 3, 1825, c. 67, are not sufficiently precise on the subject of the criminal jurisdiction of the admiralty over crimes committed on the high seas. The 8th, 9th, 10th, 11th, and 12th sections of the act of 1790 provided for the punishment of murder, robbery, and other capital and inferior offences, committed on the high seas" by any person or persons," without confining the provision specifically to American citizens or American vessels; and yet, under that statute, it has been adjudged that robbery, committed by a foreigner on the high seas, on board of a vessel belonging exclusively to subjects of a foreign state, was not piracy within that statute, nor punishable by the courts of the United States. United States v. Palmer, 3 Wheaton, 610; and see supra, 186, 187. By the same statute, the punishment of malicious maiming on the high seas is expressly confined to the offence committed in an American public or private vessel. Under the 9th section of the act of Congress of March 3, 1825, to provide more effectually for the punishment of certain crimes, &c., any offence, such as plundering shipwrecked property, whether below or above high-water mark, is punishable as within the jurisdiction of the federal courts. United States v. Coombs, 12 Peters, 72. The 4th, 7th, and 8th sections of the act of 1825 are general as to murder, rape, and other specified crimes, and they apply, according to the terms of them, "to any person or persons," without defining the character of the vessel on board of which the crime may be committed. But the 6th section of the act of 1825, respecting robbery on the high seas, confines the jurisdiction to the offence committed on board of an American vessel, and so does

1 Complaints against any master, officer, or mariner of any vessel of citizens of the United States, for any offence, not capital or otherwise infamous, against any law of the United States for the protection of persons or property engaged in

commerce or navigation, may be summarily tried by the district judge on the report of the district attorney. Act of June 11, 1864, c. 121, § 2, 13 U. S. St. at L. 124; ante, 304, n. 1.

It appears from these cases, that though the general cognizance of all cases of admiralty and maritime jurisdiction, as given by

the 22d section, respecting assaults with intent to commit a felony; while, on the other hand, by the 23d section, a conspiracy on the high seas to destroy any vessel with intent to injure the underwriters is made felony, and the section is general, and applies to all persons.

It is difficult to understand exactly what was intended by this diversity of language in different sections, being general in one and specific in another, so far as those various sections have not been construed or defined by judicial decisions. We may safely say, that so far as any crime committed upon the high seas, no matter by whom or where, amounts to piracy within the purview of the law of nations, there can be no doubt of the jurisdiction of the circuit courts of the United States. (See supra, 186, 187.) But where the crime has not attained that “ bad eminence,” then the jurisdiction can only, upon proper principles, attach to crimes committed by American citizens upon the high seas, or to crimes committed in or upon an American vessel on the high seas. If the American citizen commits the crime on the high seas, on board of a foreign vessel, the personal jurisdiction over the citizen, in that case, if it exist at all, must be concurrent with the jurisdiction of the foreign government to which the vessel belongs, or by whose subjects it is owned. Under the 8th section of the act of April 30, 1790, if an offence be committed on board of a foreign vessel by a citizen of the United States, or on board of a vessel of the United States by a foreigner, or by a citizen or foreigner on board of a piratical vessel, it is cognizable by the courts of the United States. United States v. Holmes, 5 Wheaton, 412. The act of 1825 enlarged the jurisdiction of the federal courts to offences on board of American vessels by any of the American crew, in all places and waters where the tide ebbs and flows. The act of 1835 extended the jurisdiction not only to offences on the high seas, but on any other waters within the admiralty and maritime jurisdiction of the United States. United States v Lynch, 2 N. Y. Legal Observer, 51; United States v. Roberts, ib. 99. In the case of the United States v. Mackenzie & Gansevoort, in the New York Circuit Court, January 11, 1843, it was declared, that if the Crimes Act of March 3, 1825, c. 276, was to be considered as giving the circuit and district courts concurrent jurisdiction with courts-martial over offences committed on board ships of war, yet that the proviso in the 11th section showed that the powers of courts-martial were not abrogated or suspended, and that it was doubtful whether the courts of civil jurisdiction were under the necessity of exercising their jurisdiction. The court refused, in that case, to interfere by process, and interrupt the naval court of inquiry then sitting upon the case. Afterwards, the same court, on further and more elaborate discussion and consideration, declared that the Circuit Court had no jurisdiction in the case. See supra, 341, n. (a).

The act of Congress of March 3, 1835, c. 40, sec. 1 and 2, punishes revolt and mutiny, or attempts at the same, by any of the crew of any American vessel on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, by fine and imprisonment, according to the nature and aggravation of the offence; and reduces the same from the grade of a capital offence. On the other hand, the act renders the master and other officers of any such vessel, at any such place, indictable, and punishable by fine and imprisonment, if without any justifiable cause, and from malice, hatred, or revenge, they beat, wound, or imprison any of the crew, or inflict any cruel and unusual punishment upon them. See Abbott on Shipping, 5th Am. ed., Boston, 1846, pp. 246 to 253. The substance is given in the notes by the learned editor, of the several acts of Congress relative to crimes and

364

the Constitution, extends equally to the criminal and civil jurisdiction of the admiralty, as known to the English and maritime law when the Constitution was adopted; yet that without a particular legislative provision in the case, the federal courts do not exercise criminal jurisdiction as courts of admiralty over maritime offences. In the case of The United States v. Coolidge, (b) it was insisted that the admiralty was a court of extensive criminal jurisdiction, and that offences of admiralty jurisdiction were exclusively cognizable by the United States; and that a marine tort on the high seas, as, for instance, the forcible rescue of a prize, was punishable by the admiralty, in the absence of positive law, by fine and imprisonment. The * decision of the Supreme Court was otherwise; (a) and it seems now to be settled, that the federal courts, as courts of admiralty, are to exercise such criminal jurisdiction as is conferred upon them expressly by acts of Congress, and that they are not to exercise any other. The United States courts have no unwritten criminal code to which resort can be had as a source of jurisdiction. They have none but what is conferred by Congress, and this principle extends as well to admiralty and maritime as to common-law offences. (b) This limitation does not, however, apply to private prosecutions in the District Court, as a court of admiralty or prize court, to recover damages for a marine tort. Such cases are cognizable in the admiralty, by virtue of its general admiralty jurisdiction, and so it was held in the case of the Amiable Nancy. (c)

offences committed on the high seas. The principal acts on that subject are those of April 30, 1790, c. 36; 3d March, 1825, c. 276, and March 3, 1835, c. 40. The English law is more penal, and the statute of 11 & 12 Wm. III. c. 7, makes the crime of revolt, or endeavors to create a revolt, or to lay violent hands on his commander, piracy and robbery. Regina v. M'Gregor, 1 Carr. & Kir. 429.

(b) 1 Gall. 488.

(a) 1 Wheaton, 415.

(b) United States v. Hudson & Goodwin, 7 Cranch, 32; United States v. Coolidge, 1 Wheaton, 415; United States v. Bevans, 3 id. 336; United States v. Wiltberger, 5 id. 76. The jurisdiction of the Supreme Court is pointed out by the Constitution; but the powers of the inferior courts are regulated by statute, and they have no powers but such as the statute gives them. Smith v. Jackson, 1 Paine, 453.

(c) 3 Wheaton, 546. So it is a well-established principle of the maritime law, that owners are responsible in the admiralty for the torts of their masters, in acts relative to the service of the ship, and within the scope of their employment. [The State Rights, Crabbe, 22;] Abbott on Shipping, pp. 398, 399; Sherwood v. Hall, 3 Sumner, 131. It was held in Chamberlain v. Chandler, 3 Mason, 242, that the admiralty had jurisdiction of personal torts and wrongs committed on a passenger on the high seas

*

The civil jurisdiction of the English admiralty is according to the forms of the civil law, and before a single judge; but the criminal jurisdiction, in which all maritime felonies are tried, is in the court of admiralty sessions, before commissioners of oyer and terminer, being the judge of the court of admiralty, and three or four associates. It has cognizance of all crimes and offences committed at sea, or on the coasts, out of the body of a county; and in that court the proceedings are by indictment and trial by jury, according to the course of the common law. (d) y1 The criminal jurisdiction of the English admiralty received its present modification by the act of 28 Henry VIII. c. 15; but it had a very extensive criminal jurisdiction, coeval with the first existence of the court. It proceeded by indictment, and * 365 petit jury, before, and independent of, the statute of by the master of the ship, whether the torts were by direct force, as trespasses, or were consequential injuries. So, in Plummer v. Webb, 4 Mason, 380, it was held that a father or master might sue in the admiralty for wages earned by maritime service, and for torts committed on the high seas, as in the abduction of a minor or apprentice, per quod servitium amisit. If the tortious act happens in port, but is a continuing injury from sea, or if there be a trespass at sea upon property, and continued upon land, it becomes a maritime tort of admiralty jurisdiction. The courts of admiralty may award consequential damages in cases of marine tort, Betsey Caines, 2 Hagg. Adm. 28; and courts of common law have also jurisdiction, concurrently with the instance court of admiralty, in cases of marine trespass, free from the question of prize, Percival v. Hickey, 18 Johns. 257; Wilson v. Mackenzie, 7 Hill (N. Y.), 95. The admiralty can take jurisdiction of a suit for damages in the nature of a breach of a maritime contract, even though the ship did not enter on the voyage. Abbott on Shipping, pt. 4, c. 4, sec. 2; case of the City of London, in the Adm., Nov. 1839 [1 W. Rob. 88.] See Curtis's Treatise on Seamen, pp. 300, 356. But if a tort be committed by a master on one of the crew on shore, or in a foreign port, in the course of the voyage, it is a case of common-law jurisdiction, and the admiralty cannot draw to it a tort on shore, though it be a gravamen, mixed up with a tort on the high seas. Adams v. Haffards, 20 Pick. 127. The admiralty, says Mr. Justice Story, does not claim any jurisdiction over torts, except maritime torts committed on the high seas, or on waters within the ebb and flow of the tide. Where those waters are within the body of a county, the learned judge would seem to differ from the courts of common law, for they deny the admiralty jurisdiction in the latter case. The objection to the admiralty jurisdiction does not apply in the case of tide waters in foreign countries, where the distinction of counties is unknown. Thomas v. Lane, 2 Sumner, 9, 10.

(d) 4 Blackst. Comm. 269.

y1 In Reg. v. Keyn, 2 Ex. D. 63, it is held that the territorial criminal jurisdiction of England does not extend beyond low water mark. The whole subject is reviewed at length in several of the opin

ions delivered. See also Smith Adm. Law & Practice (2d ed.). Stat. 41 & 42 Vict. c. 73, provides that the jurisdiction of the admiral shall extend to one marine league from the shore.

Henry VIII.; and all criminal offences cognizable by the admiralty, and not otherwise provided for by positive law, are punishable by fine and imprisonment. (a) The better opinion, however, is, that the ancient common law or primitive criminal jurisdiction of the English admiralty has become obsolete, and has not been in exercise for the last one hundred years, and that no offence of a criminal nature can be tried there, which does not fall within the jurisdiction specially conferred by the statute of Henry VIII. (b) There is, therefore, a very strong precedent for the doctrine of the Supreme Court of the United States, which refuses to the federal courts any criminal jurisdiction in admiralty cases, not derived from statute. And to whatever extent the criminal jurisdiction of the admiralty may extend, the Judiciary Act of 1789 provides that the trial of all issues in fact in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.

3. Limits of the Admiralty Jurisdiction. There has existed a very contested question, and of ancient standing, touching the proper division or boundary line between the jurisdiction of the courts of common law and the courts of admiralty. The admiralty jurisdiction in England originally extended to all crimes and offences committed upon the sea, and in all ports, rivers, and arms of the sea, as far as the tide ebbed and flowed. Lord Coke's doctrine was, (c) that the sea did not include any navigable waters within the body of a county; and Sir Matthew Hale supposed, (d) that prior to the statute of 35th Edw. III. the common law and the admiralty exercised jurisdiction concurrently in the narrow seas, and in ports and havens 366 within the ebb and flow of the tide. Under the statutes

of 13 R. II. c. 5, and 15 R. II. c. 3, excluding the admiralty jurisdiction in cases arising upon land or water within the body of a county, except in cases of murder and mayhem, there have been long and vexatious contentions between the admiralty and the common-law courts. On the sea-shore the common-law jurisdiction is bounded by low-water mark where the main sea begins; and between high and low water mark, where the sea ebbs and

(a) 4 C. Rob. 74, note.

(b) 2 Bro. Civ. and Adm. Law, Appendix, No. 3; Opinion of Law Officers of the Crown, ib.

(c) 4 Inst. 135.

(d) 2 Hale, P. C. c. 3.