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Joseph Story, Commentaries on the Constitution 

3:§§ 1659--67


§ 1659. It has been remarked by the Federalist, in another place, that the jurisdiction of the court of admiralty, as well as of other courts, is a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits, by which it is circumscribed. This remark is equally true in respect to England and America; to the high court of admiralty sitting in the parent country; and to the vice-admiralty courts sitting in the colonies. At different periods, the jurisdiction has been exercised to a very different extent; and in the colonial courts it seems to have had boundaries different from those prescribed to it in England. It has been exercised to a larger extent in Ireland, than in England; and down to this very day it has a most comprehensive reach in Scotland. The jurisdiction claimed by the courts of admiralty, as properly belonging to them, extends to all acts and torts done upon the high seas, and within the ebb and flow of the sea, and to all maritime contracts, that is, to all contracts touching trade, navigation, or business upon the sea, or the waters of the sea within the ebb and flow of the tide. Some part of this jurisdiction has been matter of heated controversy between the courts of common law, and the high court of admiralty in England, with alternate success and defeat. But much of it has been gradually yielded to the latter, in consideration of its public convenience, if not of its paramount necessity. It is not our design to go into a consideration of these vexed questions, or to attempt any general outline of the disputed boundaries. It will be sufficient in this place to present a brief view of that, which is admitted, and is indisputable.

§ 1660. The admiralty and maritime jurisdiction, (and the word, "maritime," was doubtless added to guard against any narrow interpretation of the preceding word, "admiralty,") conferred by the constitution, embraces two great classes of cases; one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries done upon the high seas, where all nations claim a common right and common jurisdiction; or acts, or injuries done upon the coast of the sea; or, at farthest, acts and injuries done within the ebb and flow of the tide. The second respects contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches, one embracing captures, and questions of prize arising jure belli; the other embracing acts, torts, and injuries strictly of civil cognizance, independent of belligerent operations.

§ 1661. By the law of nations the cognizance of all captures, jure belli, or, as it is more familiarly phrased, of all questions of prize, and their incidents, belongs exclusively to the courts of the country, to which the captors belong, and from whom they derive their authority to make the capture. No neutral nation has any right to inquire into, or to decide upon, the validity of such capture, even though it should concern property belonging to its own citizens or subjects, unless its own sovereign or territorial rights are violated; but the sole and exclusive jurisdiction belongs to the courts of the capturing belligerent. And this jurisdiction, by the common consent of nations, is vested exclusively in courts of admiralty, possessing an original, or appellate jurisdiction. The courts of common law are bound to abstain from any decision of questions of this sort, whether they arise directly or indirectly in judgment. The remedy for illegal acts of capture is by the institution of proper prize proceedings in the prize courts of the captors. If justice be there denied, the nation itself becomes responsible to the parties aggrieved; and if every remedy is refused, it then becomes a subject for the consideration of the nation, to which the parties aggrieved belong, which may vindicate their rights, either by a peaceful appeal to negotiation, or a resort to arms.

§ 1662. It is obvious upon the slightest consideration, that cognizance of all questions of prize, made under the authority of the United States, ought to belong exclusively to the national courts. How, otherwise, can the legality of the captures be satisfactorily ascertained, or deliberately vindicated? It seems not only a natural, but a necessary appendage to the power of war, and negotiation with foreign nations. It would otherwise follow, that the peace of the whole nation might be put at hazard at any time by the misconduct of one of its members. It could neither restore upon an illegal capture; nor in many cases afford any adequate redress for the wrong; nor punish the aggressor. It would be powerless and palsied. It could not perform, or compel the performance of the duties required by the law of nations. It would be a sovereign without any solid attribute of sovereignty; and move in vinculis only to betray its imbecility. Even under the confederation, the power to decide upon questions of capture and prize was exclusively conferred in the last resort upon the national court of appeals. But like all other powers conferred by that instrument, it was totally disregarded, wherever it interfered with state policy, or with extensive popular interests. We have seen, that the sentences of the national prize court of appeals were treated, as mere nullities; and were incapable of being enforced, until after the establishment of the present constitution. The same reasoning, which conducts us to the conclusion, that the national courts ought to have jurisdiction of this class of admiralty cases, conducts us equally to the conclusion, that, to be effectual for the administration of international justice, it ought to be exclusive. And accordingly it has been constantly held, that this jurisdiction is exclusive in the courts of the United States.

§ 1663. The other branch of admiralty jurisdiction, dependent upon locality, respects civil acts, torts, and injuries done on the sea, or (in certain cases) on waters of the sea, where the tide ebbs and flows, without any claim of exercising the rights of war. Such are cases of assaults, and other personal injuries; cases of collision, or running of ships against each other; cases of spoliation and damage, (as they are technically called,) such as illegal seizures, or depredations upon property; cases of illegal dispossession, or withholding possession from the owners of ships, commonly called possessory suits; cases of seizures under municipal authority for supposed breaches of revenue, or other prohibitory laws; and cases of salvage for meritorious services performed in saving property, whether derelict, or wrecked, or captured, or otherwise in imminent hazard from extraordinary perils.

§ 1664. It is obvious, that this class of cases has, or may have, an intimate relation to the rights and duties of foreigners in navigation and maritime commerce. It may materially affect our intercourse with foreign states; and raise many questions of international law, not merely touching private claims, but national sovereignty, and national reciprocity. Thus, for instance, if a collision should take place at sea between an American and a foreign ship, many important questions of public law might be connected with its just decision; for it is obvious, that it could not be governed by the mere municipal law of either country. So, if a case of recapture, or other salvage service performed to a foreign ship, should occur, it must be decided by the general principles of maritime law, and the doctrines of national reciprocity. Where a recapture is made of a friendly ship from the hands of its enemy, the general doctrine now established is, to restore it upon salvage, if the foreign country, to which it belongs, adopts a reciprocal rule; or to condemn it to the recaptors, if the like rule is adopted in the foreign country. And in other cases of salvage the doctrines of international and maritime law come into full activity, rather than those of any mere municipal code. There is, therefore, a peculiar fitness in appropriating this class of cases to the national tribunals; since they will be more likely to be there decided upon large and comprehensive principles, and to receive a more uniform adjudication; and thus to become more satisfactory to foreigners.

§ 1665. The remaining class respects contracts, claims, and services purely maritime. Among these are the claims of material-men and others for repairs and outfits of ships belonging to foreign nations, or to other states; bottomry bonds for monies lent to ships in foreign ports to relieve their distresses, and enable them to complete their voyages; surveys of vessels damaged by perils of the seas; pilotage on the high seas; and suits for mariners' wages. These, indeed, often arise in the course of the commerce and navigation of the United States; and seem emphatically to belong, as incidents, to the power to regulate commerce. But they may also affect the commerce and navigation of foreign nations. Repairs may be done, and supplies furnished to foreign ships; money may be lent on foreign bottoms; pilotage and mariners' wages may become due in voyages in foreign employment; and in such cases the general maritime law enables the courts of admiralty to administer a wholesome and prompt justice. Indeed, in many of these cases, as the courts of admiralty entertain suits in rem, as well as in personam, they are often the only courts, in which an effectual redress can be afforded, especially when it is desirable to enforce a specific maritime lien.

§ 1666. So that we see, that the admiralty jurisdiction naturally connects itself, on the one hand, with our diplomatic relations and duties to foreign nations, and their subjects; and, on the other hand, with the great interests of navigation and commerce, foreign and domestic. There is, then, a peculiar wisdom in giving to the national government a jurisdiction of this sort, which cannot be wielded, except for the general good; and which multiplies the securities for the public peace abroad, and gives to commerce and navigation the most encouraging support at home. It may be added, that, in many of the cases included in these latter classes, the same reasons do not exist, as in cases of prize, for an exclusive jurisdiction; and, therefore, whenever the common law is competent to give a remedy in the state courts, they may retain their accustomed concurrent jurisdiction in the administration of it.

§ 1667. We have been thus far considering the admiralty and maritime jurisdiction in civil cases only. But it also embraces all public offences, committed on the high seas, and in creeks, havens, basins, and bays within the ebb and flow of the tide, at least in such as are out of the body of any county of a state. In these places the jurisdiction of the courts of admiralty over offences is exclusive; for that of the courts of common law is limited to such offences, as are committed within the body of some county. And on the sea coast, there is an alternate, or divided jurisdiction of the courts of common law, and admiralty, in places between high and low water mark; the former having jurisdiction when, and as far as the tide is out, and the latter when, and as far as the tide is in, usque ad filum aquae, or to high water mark. This criminal jurisdiction of the admiralty is therefore exclusively vested in the national government; and may be exercised over such crimes and offences, as congress may, from time to time, delegate to the cognisance of the national courts. The propriety of vesting this criminal jurisdiction in the national government depends upon the same reasoning, and is established by the same general considerations, as have been already suggested in regard to civil cases. It is essentially connected with the due regulation, and protection of our commerce and navigation on the high seas, and with our rights and duties in regard to foreign nations, and their subjects, in the exercise of common sovereignty on the ocean. The states, as such, are not known in our intercourse with foreign nations, and not recognised as common sovereigns on the ocean. And if they were permitted to exercise criminal or civil jurisdiction thereon, there would be endless embarrassments, arising from the conflict of their laws, and the most serious dangers of perpetual controversies with foreign nations. In short, the peace of the Union would be constantly put at hazard by acts, over which it had no control; and by assertions of right, which it might wholly disclaim.