not possibly an improved character. At present, it is not very material to know what may be the final decision of the whole court; but it is, however, material that this question, so long kept in abeyance, should be definitely settled, in order, not only that the law, but the practice, in the several district courts of the United States should be, in this respect, hereafter uniform throughout the country.

Chancellor Kent, in his Commentaries (vol. i. p. 413, note), designates the views of Mr. Justice Story as grasping, and laments that the Supreme Court have not been required, as an appellate court, to review and solemnly and definitively pass upon the decision in De Lovio v. Boit. His precise language is as follows: "It appeared to me, therefore, upon a reconsideration of the subject, that the elaborate decision in De Lovio v. Boit, grasped at too much jurisdiction."

In the case of Peele v. The Merchants Ins. Co. (3 Mason, 27), the question was raised by counsel in the first circuit, and diligent preparation was made (as the writer well remembers) for rearguing the case at Washington. But it somehow failed, and never came on for argument. Mr. Justice Curtis in The Gloucester Ins. Co. v. Younger (2 Curtis, 322), seems to have thought there should have been an argument. He says, “ Either from want of confidence felt by the bar, in the ultimate establishment of the jurisdiction by the Supreme Court of the United States, or from some other cause, the jurisdiction in admiralty has been very infrequently resorted to:"" and, since Peele's case, a libel on policies of insurance has not been filed in the district, where the amount in dispute would allow an appeal."

In the third volume of Mason's Reports, the first two

cases there reported were insurance cases (one that of Peele v. Merchants Ins. Co.), in which the same counsel were engaged, but with some slight change of side.

In Baines v. The Schooner James and Catharine (Baldwin, 554), determined in 1832, the controversy was about wages. But the claimant, who intervened, made an attempt to get allowed an account in set-off for provisions and other articles, previously furnished to the libellant. But the offset claimed was disallowed, after an elaborate and extended review of the whole general subject of admiralty jurisdiction in the United States. And Mr. Justice Baldwin, in giving his opinion, made use of the following language: "If an admiralty jurisdiction exists in the United States in suits at common law, commensurate with the claim here made, its assertion is, in my opinion, a renewal of the contest between legislative power and royal prerogative, the common and civil law striving for mastery; the one to secure, the other to take away the trial by jury. And until the authoritative judgment of a higher court shall make it my duty to surrender my judgment to their decree, it will never be sanctioned by me."

At an earlier period, 1827, in Ramsey v. Alegre (12 Wheat. 611), twelve years after the decision in Gallison, the discussion by individual judges was quite significant. A libel was filed for repairs made, amounting to $2,428.84, for which sum a note had been given; but, at the time of instituting the present process, had not been surrendered up. A question of jurisdiction was interposed; the libel was dismissed as coram non judice, both by the district and circuit courts; and the judg ments of those courts were afterward affirmed by the Supreme Court of the United States. Though there

was no difference of opinion among the individual judges as to what ought to be the final disposition of the case, yet Mr. Justice Johnson, though assenting to the court's decree, took that occasion to read an elaborate opinion, in the course of which (p. 566) he said: "I think it high time to check this silent and stealing progress of the admiralty in acquiring jurisdiction to which it has no just pretensions."

"Unfounded doctrines, not put down, and dicta and decisions, being permitted to remain on the books, and acquiesced in by the courts, afford facilities for interpolating doctrines which belong not to the law."

"The test of admiralty jurisdiction is, when suit is instituted, if prohibition shall issue, then jurisdiction is either taken away or never existed;" "the only test is seaman's wages, which probat regulam.”

"If the common law can try the cause and give full redress, that alone takes away the admiralty jurisdiction.”

"Some extravagant admirer of admiralty jurisdiction, or royal prerogative in England, rises to revive the ancient murmurs uttered by the friends of that court, when reluctantly putting off its usurped powers;" "not content to leave it as they found it; but employ themselves in efforts to revive what they cannot but acknowledge has been long extinct."

In the Steamer St. Lawrence (1 Black, U. S. Sup. Ct. Rep. 522), it was distinctly determined, that admiralty jurisdiction was given to the Federal courts by the Constitution, and could not be enlarged by the States or Congress; but that Congress might prescribe the forms of carrying it out. And in that case, Chief Justice Taney held this language: "Judicial power, in all cases of admiralty and maritime jurisdiction, is delegated by Con

gress to the Federal courts, in general terms; and courts of this character had then been established in all commercial and maritime nations, differing, however, materially in different countries, in the powers and duties confided to them; the extent of the jurisdiction conferred, depending very much upon the character of the government in which they were created, and this circumstance, with the general terms of the grant, rendered it difficult to define the exact limits of its power in the United States."

In The Propeller Commerce, 1 Black, 574, Mr. Justice Clifford reiterates the decision pronounced in Philadelphia, Wilmington and Baltimore Co. v. The Philadelphia and Havre de Grace Co. (23 How..215), that "the exception infra corpus comitatus is not allowed to prevail;" and refers, with approbation, to the three prior cases of The De Soto (5 How. 452), The Genesee Chief (12 How. 443), and The Magnolio (20 How. 298), as decisive, that wherever a suit in rem is prosecuted in any district where the offending thing is found, admiralty jurisdiction is not taken away because the tort was within the body of the county; that locality is in torts the test of jurisdiction, and that in cases of collision, occurring on navigable waters emptying into the sea, or bays and gulfs forming part of the sea, maritime courts have jurisdiction.

Mr. Justice Woodbury has, in two elaborate opinions, controverted the positions maintained in De Lovio v. Boit; agreeing, generally, in opinion with his associates on the bench, Justices Campbell and Daniel, in their unreserved and positive objections to the extension of admiralty jurisdiction, unless through the legislative action of Congress. In The United States v. The New

Bedford Bridge, Judge Woodbury gave a very elaborate reading upon the nature and extent of admiralty jurisdiction over torts and crimes. In the case of The De Soto, the same judge, in a very full discussion of admiralty jurisdiction, and in reference particularly to his predecessor's decision in 1815, says: "It certainly seems much wiser, in doubtful cases, to let Congress extend our power, than to do it ourselves, by construction and analogy."

In the case of The Gloucester Ins. Co. v. Younger (2 Curt. 322), Mr. Justice Curtis, commenting on the cases of Peele, in 3 Mason, 27 (decided in 1822), and Hale, 2 Story, 176 (decided in 1842), both of which followed and affirmed De Lovio v. Boit, says: "Though the question has never come before the Supreme Court of the United States, other inquiries concerning the extent of the admiralty jurisdiction, conferred by the Constitution, have there arisen, and given rise to great research and much acute discussion. They have resulted in pretty wide differences of opinion among the individual judges."

He cites Waring v. Clarke, 5 How. 441; The New Jersey Steam Nav. Co. v. Merchants Bank, 6 How. 334; and The Genesee Chief, 12 How. 443.

In Cutler v. Rea, 7 How. 729, it was held that the owner of a ship could not assert a claim for general average against the consignee of the cargo, though the consignee had received the goods, by libel in personam ; and Mr. Justice Curtis adds: "This decision certainly goes pretty far towards overruling the decision in De Lovio v. Boit, and is, undoubtedly, irreconcilable with some of the positions which are reported therein."

"But it does not cover the precise question, whether 1 Woodbury and Minot, 441. 2 Waring et al v. Clarke, 5 How. 441.