acts of his agents, it might seem strange that claims of the individual against his State based upon contract are allowed to be adjudicated, whereas those based upon tort are not; in other words, that, the more wrongful and illegal the acts of the agents, the less liable is his principal. This state of the law, however, is a logical and necessary outcome of the general principle of American and English law that an ultra vires act of a public official is not the act of his government, but is a private act for which he may be held civilly and criminally responsible. 86

86 For an argument as to the justice as well as the expediency of holding the sovereign State liable for the torts of its agents, especially when it acts as the owner of, or in relation to, private property, see article by Professor Ernst Freund entitled "Private Claims against the State," in Political Science Quarterly, VII, 625. Professor Freund says: "The principal torts which may be imputable to the government in connection with its private relations, are negligence, non-compliance with statutory regulations, nuisance, trespass, and disturbance of natural easements. It is characteristic of these torts that they violate obligations which are cast by law upon the ownership or occupation or control of property, that they are sometimes not directly attributable to a specific act of any particular agent, and that the existence of the wrongful condition is usually of some benefit to the owner. The liability of the State in these cases is demanded not only by justice but by the logic of the law."

For a description of the jurisdiction of the United States Court of Claims, see ante, section 564.

ADMIRALTY AND MARITIME JURISDICTION.

§ 637. Admiralty and Maritime Jurisdiction Defined.

Section II, Clause 1, of Article III provides that "The judicial power shall extend to all cases of admiralty and maritime jurisdiction."

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Admiralty jurisdiction refers to that class of cases which are cognizable in courts established by an admiral, in that officer being vested, according to English law, the government of the King's navy and the authority to hear all causes connected with the sea.

Maritime jurisdiction, as the name itself indicates, is the jurisdiction over matters relating to the sea. To a very considerable extent, then, admiralty jurisdiction and maritime jurisdiction are of like meaning. The terms are not, however, synonymous. Admiralty now has reference, primarily, to the tribunals in which the causes are tried; maritime to the nature of the causes tried. The admiralty and maritime jurisdiction of the United States is then of a double nature; that over cases depending upon acts committed upon navigable waters; and that over contracts, and other transactions connected with such navigable waters. In the former class of cases the jurisdiction is given by the locality of the act; in the latter class by the character of the act or transaction.

The cases falling within the federal admiralty jurisdiction because of the locality, i. e., arising upon the high seas and other navigable waters, are, broadly speaking, of two classes; those of prize, arising jure belli; and those acts, torts, injuries, etc., which have no reference to a state of war.

Those cases which fall within the admiralty jurisdiction purely because of their maritime nature are those arising out of contracts, claims, etc., with reference to maritime operations. In actions of tort the test determining jurisdiction is locality; in contracts, it is the subject-matter.'

1 Waring v. Clarke, 5 How. 441; 12 L. ed. 226; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344; 12 L. ed. 465. The distinction between admiralty and maritime jurisdiction suggested above is not exactly that, originally at least, of the English law. See Benedict's Admiralty, ch. 4.

§ 638. Extent of Admiralty Jurisdiction.

Following strictly the rule of giving to the technical terms of the Constitution the meanings attached to them in the English common law, the admiralty jurisdiction of the United States courts, so far as dependent upon locality, would be limited to that exercised in the English admiralty courts at the time the Constitution was adopted. This jurisdiction of the English courts had varied considerably at different periods but at the time the American Constitution was adopted had, by the efforts of the common law judges, led by Coke, been reduced to comparatively narrow limits.

There was at first a disposition upon the part of the Supreme Court to give to the federal courts a narrow admiralty jurisdiction corresponding with that then exercised by the English court, but, moved especially by the arguments of Justice Story, a much wider sphere of admiralty power has been later upheld.

According to the earlier decisions, the federal admiralty jurisdiction was confined to cases arising upon the high seas and upon rivers as far as the ebb and flow of the tide extended. Beginning, however, with Waring v. Clarke, and The Genesee Chief, decided in 1851, the earlier cases were overruled, and the federal power declared to extend over all waters that are navigable. The case of The Genesee Chief arose under, and, therefore, involved the constitutionality of, the act of Congress of 1845 extending the jurisdiction of the federal district courts to certain cases upon the great lakes and upon the navigable waters connecting them.

Chief Justice Taney rendered the opinion of the court. In it he first calls attention to the fact that the statute was not one in exercise of the power of Congress to regulate foreign or interstate commerce, and that, though closely related, the federal commercial and admiralty powers are to be clearly distinguished from each other. "The extent of the judicial power," says the chief justice, "is carefully defined and limited, and Congress cannot enlarge it to suit even the wants of commerce, nor for the more convenient execution of its commercial regulations. And 12 How. 443; 13 L. ed. 1058.

the limits fixed by the Constitution to the judicial authority of the courts of the United States, would form an insuperable objection to this law, if its validity depended upon the commercial power.

If this law, therefore, is constitutional, it must be supported on the ground that the lakes and navigable waters connecting them are within the scope of admiralty and maritime jurisdiction as known and understood in the United States when the Constitution was adopted."

The opinion continues: "If the meaning of these terms was now for the first time brought before this court for consideration, there could, we think, be no hesitation in saying that the lakes and their connecting waters were embraced in them. These lakes are in truth inland seas. Different States border on them on one side, and a foreign nation on the other. A great and growing commerce is carried on upon them between different States and a foreign nation which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them, and prizes been made; and every reason which existed for the grant of admiralty jurisdiction to the general government on the Atlantic seas, applies with equal force to the lakes. There is an equal necessity for the instance and for the prize power of the Admiralty Court to administer international law, and if the one cannot be established, neither can the other.

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Again, the Union is formed on the basis of equal rights among all the States. Courts of admiralty have been found necessary in all commercial countries, not only for the safety and convenience of commerce, and the speedy decision of controversies, where delay would often be ruin, but also to administer the laws of nations in a season of war, and to determine the validity of captures and questions of prize or no prize in a judicial proceeding. And it would be contrary to the first principles on which the Union was formed to confine these rights to the States bordering on the Atlantic, and to the tidewater rivers connected with it, and to deny them to the citizens who border on the lakes, and the great navigable streams which flow through the western States. Certainly such was not the intention of the framers of the Con

stitution; The only objection made to this jurisdiction is that there is no tide in the lakes or the waters connecting them; . Now there is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public navigable water, on which commerce is carried on between different states or nations, the reason for the jurisdiction is precisely the same. And if a distinction is made on that account, it is merely arbitrary, without any foundation in reason; and, indeed, would seem to be inconsistent with it."

The chief justice then points out that the limitation of admiralty jurisdiction to tidal waters is a reasonable one in England because in that country there are no navigable streams which go beyond the flow and ebb of the tide; and that at the time this rule was accepted by the court in this country there was little commerce except upon such waters. Referring to the case of The Thomas Jefferson, the opinion concludes: "As we are convinced that the former decision was founded in error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it."

The limitation of admiralty jurisdiction to tidal waters being abandoned, the further extension of the jurisdiction to all the great navigable waters within the United States soon followed.3

; § 639. Admiralty Jurisdiction Extends to Navigable Waters Wholly Within a State.

The federal admiralty jurisdiction being wholly independent of the power to regulate interstate commerce, and attaching whenever the cause of action has arisen on navigable water, jurisdiction extends over all cases arising upon navigable waters even though they be wholly within the confines of a particular State, provided they be connecting links in a chain of commercial communication between States. In The Daniel Ball the court say: "Those rivers must be regarded as public navigable rivers in law

The Magnolia, 20 How. 296; 15 L. ed. 909.

410 Wall. 557; 19 L. ed. 999.