ferred to the district court, it was natural, in the infancy of federal legislation in commercial subjects, for the latter courts to entertain jurisdiction over the same class of cases, in every respect, as the state courts had done, without due regard to the new relations which the States had assumed toward the maritime law and admiralty jurisdiction."

In Butler v. Boston Steamship Co.15 a limitation upon the power of the States to create maritime liens which the federal courts will recognize and enforce is suggested, though not definitely declared. In that case Justice Bradley, after applying an act of Congress in modification of the federal maritime law, and with reference to a cause arising within the territorial limits of a State, said: "It might be a much more serious question whether a state law can have force to create a liability in a maritime case at all, within the dominion of the admiralty and maritime jurisdiction, where neither the general maritime law nor an act of Congress has created such a liability. On this subject we prefer not to express an opinion." This dictum would, however, appear to be overruled in Old Dominion S. S. Co. v. Gilmore.14a

The Supreme Court has, however, held that until Congress acts on the subject a State may legislate in regard to the duties and liabilities of its citizens and corporations while on the high seas and not within the territory of any other sovereign, and that where a fund is being distributed in a proceeding to limit the liability of the owners of a vessel all claims to which the admiralty does not deny existence must be recognized whether admiralty liens or not. In this case the vessel belonged to a Delaware corporation. The law of Delaware gave damages for death caused by a tort. The vessel was in collision with another vessel belonging also to a Delaware corporation. It was held that claim against the owner of one of the vessels in fault for such death can be enforced in a proceeding in the admiralty brought by such owner to limit its liability 14

In The Lottawanna case it is pointed out that the general doctrines of maritime law as they are to be deduced from the practice

148 207 U. S. 398; 52 L. ed. 264.

14b The Hamilton, 207 U. S. 398; 28 Sup. Ct. Rep. 133; 52 L. ed. 264.

of civilized nations, from the decisions of their courts, and from the comments of scientific writers, are, in the absence of congressional statute to the contrary, to guide the federal courts in the administration of their admiralty jurisdiction.16

§ 646. Legislative Powers of Congress Flowing from Admiralty and Maritime Jurisdiction.

The Constitution does not in express terms confer upon Congress the power to legislate with reference to matters maritime, but the grant to the judiciary of jurisdiction over all cases of admiralty and maritime jurisdiction, a jurisdiction which has, as we have seen, been held to be exclusive- has been construed to give to the federal legislature a power over the law which the federal courts are thus called upon to interpret and apply. In The Lottawanna case, the court say: "It is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. . . Each State adopts the maritime law, not as a code having any independent or inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit.

To ascertain, therefore, what the maritime law of the country is, it is not enough to read the French, German, Italian and other foreign works on the subject, or the codes which they have formed; but we must have regard to our own legal history, Constitution, legislation, usages, and adjudications, as well."

In this case the court seem to indicate that the authority of Congress to legislate with reference to matters of maritime interest is derived from its control of commerce, which includes navigation between the States, and between the United States and foreign States. But in later cases Congress is explicitly recog nized to have a legislative power flowing directly from the grant to the federal courts of admiralty and maritime jurisdiction. In Ex parte Garnett the court say: "It is unnecessary to invoke the power given to Congress to regulate commerce with foreign

15 130 U. S. 527; 9 Sup. Ct. Rep. 612; 32 L. ed. 1017.

16 Section 586.

17 141 U. S. 1; 11 Sup. Ct. Rep. 840; 35 L. ed. 631.

nations, and among the several States, in order to find authority to pass the law in question. The act of Congress which limits the liability of ship owners was passed in amendment of the maritime law of the country, and the power to make such amendment is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends." 18

19

So also, in Providence & N. Y. S. S. Co. v. Hill Mfg. Co.19 the court say: "As the Constitution extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction, as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature, and not in the state legislature." 20

§ 647. The Determination of the Sphere of Admiralty Jurisdiction a Judicial Question.

Though, as appears from the foregoing, Congress, and to a certain extent the state legislatures as well, have the power to fix the substantive law which the federal admiralty courts are to apply, it is not within the power of these law-making bodies to determine the sphere of admiralty jurisdiction. This, it has been held, is a purely judicial function. In The St. Lawrence21 Taney declares: "Certainly no state law can enlarge the admiralty jurisdiction nor can an act of Congress or rule of court make it

18 Citing Butler v. Boston & S. S. S. Co., 130 U. S. 527; 9 Sup. Ct. Rep. 612; 32 L. ed. 1017; Norwich, etc. v. Wright, 13 Wall. 104; 20 L. ed. 585; The Lottawanna, 21 Wall. 558; 22 L. ed. 654; The Scotland, 105 U. S. 24; 26 L. ed. 1001; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578; 3 Sup. Ct. Rep. 379; 27 L. ed. 1038.

19 109 U. S. 578; 3 Sup. Ct. Rep. 379; 27 L. ed. 1038.

20 It is to be remarked that during the early period the power of Congress to legislate with reference to maritime matters was drawn from the Commerce Clause, which had been held to give federal control of navigation between the States and with foreign powers, and it was only later when the admiralty jurisdiction had been construed to extend to all public navigable waters, that the grant of judicial control over admiralty and maritime matters was resorted to as a broader source of federal control.

211 Black, 522; 17 L. ed. 180.

broader than the judicial power may determine to be its true limits. And this boundary is to be ascertained by a reasonable and just construction of the words used in the Constitution, taken in connection with the whole instrument, and the purposes for which admiralty and maritime jurisdiction was granted to the Federal Government." And in The Lottawanna case, Justice Bradley says: "The question as to the true limits of maritime law and maritime jurisdiction, is, undoubtedly, as Chief Justice Taney intimates, exclusively a judicial question and no state law or act of Congress can make it broader, or (it may be added) narrower, than the judicial power may determine those limits to be. But what the law is, within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the usages of this country, and on such legislation as may have been competent to affect it." 22

From the adoption of the principle that from the grant of judicial power over matters of admiralty and maritime jurisdiction, a federal legislative power is to be deduced is not to be drawn the more general rule that in all cases where federal judicial power is granted, Congress may provide the law which is to be applied in the exercise of that jurisdiction. Thus, for example, such a legislative power is not implied where the judicial power is based not upon the subject-matter in suit, but upon the character of the parties litigant.

As has been earlier shown, in suits between the States the Supreme Court from necessity finds itself obliged to determine the law applicable, which law may not be exactly the law of either of the States; so also, in suits between citizens of different States, for reasons which have been stated, the law of the States, at least as interpreted by their respective courts, is not always followed, but there has never been a suggestion that Congress might enact the law to be applied. Relations between the States of the Union being of a quasi-international character, it is eminently proper

22 In the Limited Liability Act of 1851, and the Harter act of 1893, Congress has materially altered maritime liabilities as determined by general maritime jurisprudence.

that, when necessary, general principles of jurisprudence should be applied. And where, in suits between citizens of different States, the federal courts do not hold themselves concluded by the decisions of the state courts, it is not upon the ground that federal law as distinct from state law is to be applied, but upon the doetrine that, as independent tribunals, the federal courts have a right, coördinate with that of the state courts, to determine what the state law is.

In the case of admiralty and maritime causes, however, the condition is quite otherwise. Here the state courts have absolutely no jurisdiction. The general principles of the law to be applied are indeed furnished by the admiralty law of the world. But it is necessary that this body of general principles should be subject to change and addition by the legislatures of each country, and as the Supreme Court has said, it would be indeed a strange and undesirable condition of affairs to have this legislation supplied by governments whose courts have no jurisdiction to apply it.

The legislative powers of Congress thus follow ex necessitate.