The The exclusive jurisdiction which the United | Chesapeake, the pretension of searching public States have in forts and dock-yards ceded to ships for deserters was solemnly disavowed 351*] them, is derived from the express *as-*by the British government, and their [*352 sent of the states by whom the cessions are immunity from the exercise of any jurisdiction made. It could be derived in no other manner; but that of the sovereign power to which they because without it, the authority of the state belong was spontaneously recognized.2 would be supreme and exclusive therein. But principle that every power has exclusive juristhe exclusive jurisdiction of the United States diction over offenses committed on board their on board their ships of war is not derived from own public ships, wherever they may be, is also the express assent of the individual states; be- demonstrated in a speech of the present Chief cause the United States have it in common with Justice of the United States, delivered in the all other independent powers; they have it by House of Representatives on the celebrated case the public law of the world; a concession of it of Nash, alias Robbins; which argument though in the constitution would have been merely de-made in another forum, and for another object, claratory of that law. The power granted to applies with irresistible force to every claim of Congress by the constitution, "to make rules for jurisdiction over a public ship that may be set the government of the land and naval forces,' up by any sovereign power other than that to merely respects the military police of the army which such ship belongs. *All juris- [*353 and navy, to be maintained by articles of war diction is founded on consent; either the conwhich form the military code. But this case is sent of all the citizens implied in the social not within the grasp of that code, the offense compact itself, or the express consent of the being committed within the jurisdiction of the party or his sovereign. *But in this [*354 United States. The power of a court-martial case, so far from there being any consent, imto punish murder, is confined to cases "with-plied or express, that the state courts should out" the United States, by the act of the 23d take cognizance of offenses committed on board of April, 1800, for the government of the navy, of ships of war belonging to the United States, ch. 33. In England, murder committed in the *those ships enter the ports of the dif- [*355 army or navy, is triable (not by courts-martial), ferent states under the permission of the state but in the ordinary criminal courts of the coun- governments, which is as much a waiver of try. But in what courts? In the national jurisdiction as it would be in the case of a forcourts. If committed on land, in the courts of eign ship entering by the same permission. A common law; if committed within the limits foreign ship would be exempt from the local of the admiralty jurisdiction, at the admiralty jurisdiction; and the sovereignty of the United sessions. In the memorable case of the frigate | States on board their own ships of war cannot 1. Tytler's Military Law, 153. 2. Mr. Canning's Letter to Mr. Monroe, August 3d, 1807; 5 Waites' Documents, 89. 3.-Bee's Adm. Rep. 266. The Edinburgh Review for October, 1807, art. 1, contains an examination of this subject, in which the writer deduces the following propositions: I. That the right to search for deserters on board of merchant ships rests on the same basis as the right to search for contraband goods. The ground of this right being in each case the injury done to the belligerent-which can only be known by a search, and redressed by immediate impressment. P. 9. to the national ships, and that these floating citadels are as much a part of the territory as castles on dry land. They are public property, held by public men in the public service, and governed by martial law. Moreover, the supreme power of the state resides in them, the sovereign is represented in them, and every act done by them is done in his name. V. From the analogical case of the rights and privileges of ambassadors, every reason for which applies strongly to the present exemption. Vattel, lib. 4, ch. 7 and 8; Grotius, de Jure Belli, 17, 4, 4. VI. From the the absurdity of determining claims of sovereign states in the tribunals of one of them when these claims can only be decided by Yet if search in such case the parties themselves. be resisted, the admiralty would on capture be the All jurists agree that there is no human court in which the disputes of nations can be tried. And no provisions are made in any treaty for a trial of this nature. P. 15. II. That this right must be confined to merchant ships, and is wholly inapplicable to ships of war of any nation. That in case of the protecting of deserters by such ships the only remedy lies in nego-judge. tiation, and if that fails, in war. P. 9, 10. The non-existence of the right to search national ships is inferred from the following arguments. 1. The great inconvenience of the exercise of the right-the tendency to create dissention. 2. The silence of all public jurists on the subject, though occasions have arisen in which its existence would have settled the question in dispute at once. For example, the case of The Swedish convoy; The judgment of Sir W. Scott thereon; Dr. Croke's remarks on Schlegel's work; Letters of Sulpicius; Lord Grenville's speech on the Russian treaty, November, 1810, p. 11. III. The language of all treaties, in which the subject of search is mentioned, where it is always confined to merchant ships. Consolato del mare, ch. 273; Treaty of Whitehall, 1661, art. 12; Treaty of Copenhagen, 1670, art. 20; Treaty of Breda, 1667, art. 19; Treaty of Utrecht, 1713, art. 24; Treaty of Commerce with France, 1786, art. 26; Treaty with America, 1795, art. 17, 1819. So, in the language of jurists, the right is always confined to merchant ships. Vattel, liv. 3, ch. 7, s. 113, and 114; Martens on Privateers, ch. 2, s. 20; Hubner, de la Saisie des batimens neutres, Vol. I, part 1, ch. 8, s. Whitlock's mem. p. 654; Molloy, de Jur. Mar. book 1, ch. 5. IV. That the territory of an independent state is inviolable, and cannot be entered into to search for deserters. Vattel, lib. 2, ch. 7, s. 93, s. 64, and s. 79. That the same principle of inviolability applies VII. That the naval supremacy of Great Britain affords no argument for the right. That this naval supremacy was never admitted by other nations, generally, though it was by Holland. That it is confined to the British seas, and that even in them it only respects the mere right of salute, and no more. See Grotius, lib. 2, ch. 3, s. 8, 13; Puffendorff, de Jure Gent. lib. 4, ch. 5, s. 7; Seld. Mar. Claus. lib. ch. 14; Ibid. lib. 2. ch.; Molloy b. 1, ch. 5; Treaty of peace and alliance with Holland, 1654, art. 13; Treaty of Whitehall, 1662, art. 10; Treaty of Breda, 1667, art. 19; Treaty of Westminster, 1674, art. 6; Treaty of Paris, 1784, with Holland, art. 2; Vattel, liv. 1, ch. 23, s. 289, p. 17, 18. VIII. Two instances only exist of an attempt to claim the right, and these were of Holland. In the negotiation of the peace of 1654, Cromwell endeavored to obtain from the Dutch the right to search for deserters in their vessels of war within the British seas. But this was rejected, and the Soon after right of salute only acknowledged. that peace (1654) the question was discussed in consequence of a Dutch convoy being searched as to the merchant ships in the channel. The Dutch government, on this occasion, gave public instructions to their commanders to allow the merchant ships to be searched, but never to allow the ships of war. Thurloe, Vol. II., p. 503, p. 19, 20. be less perfect while they remain in any of the and colonization of this country become applicaports of the confederacy than if they were in ble here, because they are geographically local a port wholly foreign. But we have seen that in their nature. British statutes were not in when they are in a foreign port they are exempt force in the colonies, unless the colonies were from the jurisdiction of the country. With expressly, or by inevitable implication, included still more reason must they be exempt from the therein. We never admitted the right of the jurisdiction of the local tribunals when they British parliament to bind us in any case, alare in a port of the Union. 2. The State Court though they assumed the authority to bind us had not jurisdiction, because the place in which in all cases. It is therefore highly probable the offense was committed (even if it had not that the framers of the constitution had in view been committed on board a public ship of war the jurisdiction of those admiralty courts with of the United States) is within the admiralty which they were familiar. The jurisdiction of jurisdiction with which the federal courts are the colonial admiralty courts extended, First. invested by the constitution and the laws. By To all maritime contracts, wherever made and the constitution, the judiciary power extends wherever to be executed. Second. To all to "all cases of admiralty and maritime juris- revenue causes arising on navigable waters. diction." Third. To all offenses committed "on the There can be no doubt that the technical sea shores, public streams, ports, fresh waters, common law terms used in the constitution are rivers, and arms as well of the sea as of the to be construed according to that law, such as rivers and coasts," etc." But if this construc"habeas corpus," "trial by jury," etc. But tion should not be tenable, it may be shown this is a term of universal law, "cases of ad- that an offense committed in the *place [*357 miralty and maritime jurisdiction;" not cases where the record shows this crime was comof admiralty jurisdiction only; but the amplest, mitted, is within the rightful jurisdiction of broadest, and most expansive terms that could the admiralty, according to English statutes be used to grasp the largest sense relative to and English authorities. Before the statutes the subject-matter. The framers of the consti- of Richard II. the criminal jurisdiction of tution were not mere common lawyers only. the admiralty extended to all offenses commitTheir minds were liberalized by a knowledge ted on the high seas, and in the ports, havens 356*] of universal *jurisprudence and general and rivers of the kingdom. Subsequently to policy. They may as well, therefore, be sup- the statutes of Richard, there has never been posed to have used the term admiralty and any question in England that the admiralty maritime jurisdiction as denoting the jurisdic-had jurisdiction on the sea coast within the ebb tion of the admiralty in France, and in every and flow of the tide. The doubt has been concountry of the civilized world, as in England fined to ports and havens. But "the sea," alone. But even supposing this not to have technically So termed, includes ports and been the case, the statutes of Richard II., at havens, rivers and creeks, as well as the sea their enactment, could not have extended to this coasts; and therefore the admiralty jurisdiction country, because the colonies did not then ex- extends as well to these (within the ebb and ist. They could not afterwards on the discovery flow) as to the sea coasts.* On this branch of 1.-1 Bl. Com. 107, 108. seaward, for in these the admiralty hath full jurisdiction in all causes, criminal and civil, except treasons and right of wreck." Spelman, of the Admiralty Jurisdiction, Works, 226, Edw. 1727. 2.-De Lovio v. Boit, 2 Gallis. 470, note 47. 3.-Roughton's Articles in Clerk's Praxis, 99, et infra. Exton, book 12 and 13; Selden, De Dominio Maris, book 2, ch. 24; Zouch's Jurisdiction of the Admiralty asserted, 96; Hall's Adm. Practice, XIX.; Spelman's Works, 226, Ed. 1727. 4. Nota, Que chescun ewe, que flow et reflew est appel bras de meer ci tant aunt come el flowe." 22 Assise, 93. CHOKE, J., "Si jeo ay terre adjoint al mere issint que le mere ebbe et flow sur ma terre, quant il flowe chescun poet pischer en le ewe que est flow sur ma terre, car donques il est parcel de le mere, et en le mere chescun homme poit pischer de common droit." Year Book, 8 Edw. 4, 19, a; S. C. cited 5 Co. Rep. 107. "It was resolved that where the sea flows and has plentitudem maris, the admiral shall have jurisdiction of everything done on the water between the high water-mark by the natural course of the sea; yet, when the sea ebbs, the land may belong to a subject, and everything done on the land, when the sea is ebbed, shall be tried at the common law, for it is then parcel of the county and infra corpus comitatus, and therewith agrees. 8 Edw. IV. 19, a. So note that below the low water-mark the admiral hath the sole and absolute jurisdiction; between the high water-mark and low water-mark, the common law and the admiral have divisum imperium, as is aforesaid, scilicet one super acquam and the other super terram." Sir Henry Constable's case, 5 Co. Rep. 106, 107. "The place absolutely subject to the jurisdiction of the admiralty is the sea, which seemeth to comprehend public rivers, fresh waters, creeks, and surrounding places, whatsoever, within the ebbing and flowing of the sea at the highest water, the shores or banks adjoining, from all the first bridges 3 "The court was of opinion, that the contract being laid to be made infra fluxum et refluxum maris, it might be upon the high sea; and was so, if the water was at high water-mark, for in that case there is divisum imperium between the common law and the admiralty jurisdiction, according as the water was high or low. Barber v. Wharton, 2 Ld. Rayı. 1452. The ancient commission issued under the statute 28 Henry VIII., ch. 15, concerning the trial of crimes committed within the admiralty jurisdiction, contains the following words, descriptive of the criminal jurisdiction of the court: "Tam in aut super mari, aut in aliquo porta, rivo, aqua dulci, creca, seu loco quocunque infra fluxum maris ad plenitudem, a quibuscunque primis pontibus versus mare, quam super littus maris, et alibi abicunque infra jurisdictionem nostram maritimam, aut limites Admiralitatis Regninostri, et Dominium nostrorum." Zouch, 112, 2 Hale's P. C. ch. 3. Lord Hale speaking of this statute, 28 Hen. VIII. ch. 15, quoting the words which define the locality of the jurisdiction given to the high commission court, viz., " in and upon the sea, or in any other haven, creek, river, or place, where the admiral hath, or pretends to have power, authority, or jurisdiction," this seems to me to extend to great rivers, where the sea flows and reflows below the first bridges, and also in creeks of the sea at full water, where the sea flows and reflows, and upon high water upon the shore, though these possibly be within the body of the county; for there at least, by the statute of Rich. II., they have a jurisdiction; and thus, accordingly, it has been constantly used in all times, even when judges of the common law have been named and sat in their commission; but we are not to extend the words "pretends to have" to such a pretense as is without any right at all, and there 358*] the case it would be useless to do more, the court. The High Court of Admiralty in than refer to the opinion of one of the learned England has no original jurisdiction of revenue judges of this court,' in which all the learning causes whatever. But the colonial courts of 359*] on the civil and criminal jurisdiction *of admiralty have always had, and that inherent, the admiralty is collected together, and concen- independent of, and pre-existent to, the statutes trated in a blaze of luminous reasoning, to on this subject.* The inevitable conclusion, prove that this tribunal, before the statutes of therefore, is, that both the legislature and the 360*] Richard II. *had cognizance of all torts, court understood the term cases of admiralty and offenses, on the high seas, and in ports and and maritime jurisdiction, to refer, not to the havens, as far as the ebb and flow of the tide; jurisdiction of the High Court of Admiralty in that the usual common law interpretation, England, as frittered down by the illiberal abridging this jurisdiction to transactions jealousy and unjust usurpations of the common wholly and exclusively on the high seas, is inde-law courts, but to the admiralty jurisdiction fensible upon principle, and the decisions found- as it had been exercised in this country from ed upon it are irreconcilable with one another; whilst that of the civilians has all the consistency of truth itself; and that whether the English courts of common law be, or be not, bound by these decisions, so that they cannot retrace their steps, yet that the courts of this country are unshackled by any such bonds, and may and ought to construe liberally the grant of admiralty and maritime jurisdiction contained in the constitution. To the authorities there cited, add those in the margin, showing that 361*] the courts *of admiralty in Scotland, France, and the other countries of Europe possess the extent of jurisdiction we contend for.2 The liberal construction of the constitution, for which we contend, is strongly fortified by the interpretation given to it by the Congress in an analogous case, which interpretation has been confirmed by this court. The judiciary act declares that revenue suits, arising out of seizures 362*] on waters *navigable from the sea, etc., shall be causes of admiralty and maritime jurisdiction. And in the case of The Vengeance, and other successive cases, the court has confirmed the constitutionality of this legislative provision. But neither the Congress nor the court could make those suits cases of admiralty and maritime jurisdiction which were not so by the constitution itself. The constitution is the supreme law, both for the legislature and for 3 fore, although the admiral pretends to have jurisdiction upon the shore when the water is reflowed, yet he hath no cognizance of a felony committed there," etc. 2 Hale's P. C. ch. 3. The navy mutiny act of the 22 Geo. II., ch. 33, sec. 4, thus defines the jurisdiction of a navy courtmartial, to wit: "Nothing contained in the articles of war shall extend or be construed to extend, to empower any court-martial in virtue of this act, to proceed to the punishment or trial of anv of the offenses specified in the several articles (other than the offenses specified in the 5th, 34th, and 35th articles and orders), which shall not be committed upon the main sea, or in great rivers only, beneath the bridges of the said rivers nigh to the sea, or in the haven, river, or creek within the jurisdiction of the admiralty," etc. In the 25th section of the act is the following proviso: "Provided always, that nothing in this act shall extend, or be construed to extend to take away, from the Lord High Admiral of Great Britain, or the commissioners for executing the office of Lord High Admiral of Great Britain or any vice-admiral, or any judge or judges of the admiralty, or his or their deputy or deputies, or any other officers or ministers of the admiralty, or any others having or claiming any admiralty power, jurisdiction, or authority within the realm, or any other of the king's dominions, or from any person or court whatsoever, any power, right, jurisdiction, pre-eminence, or authority, which he, or they, or any of them. lawfully hath, have, or had, or ought to have and enjoy, before the making of this act, so as the same person shall not be punished twice for the same offense." 1 M'Arthur on Courts-Martial, 174, 348, 4th Ed. its first colonization. But it has been already shown that this jurisdiction extended to all crimes and offenses committed in ports and havens. It therefore follows that such was the extent of the admiralty jurisdiction meant to be conferred upon the federal courts by the framers of the constitution. 3. By the judiciary act of 1789, ch. 25, the Circuit Court has jurisdiction of all crimes cognizable under the authority of the United States. By the act of *1790, ch. 9, it is provided, that "if [*363 any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder," etc., "he shall suffer death." It appears by the face of the record itself that this murder was committed, in fact, "in a river, haven, or bay," and it has already been shown that in law it was committed out of the jurisdiction of any particular state. If The Attorney-General, on the same side. the offense in question be not cognizable by the Circuit Court, it is entirely dispunishable. The harbor of Boston is bounded by three distinct counties, but not included in either; consequently the locus in quo is not within the body of any county. These three counties are Suffolk, Middlesex and Norfolk; and are referred to as early as the year 1637, in the public acts of the colony of Massachusetts as then estab 1.-De Lovio v. Boit, 2 Gallis. 398. 2.-In Scotland, the delegate of the High Admiral, who holds the Court of Admiralty, "is declared to be the king's justice-general upon the seas, or fresh water, within flood and mark, and in Law, 30, 490; Erskine's Institutes, 34, 10th ed. all harbors and creeks," etc. 2 Bro. Civ. and Adm. "In Scotland (as Wellwood, a Scottish man, writes), the admiral and judge of the admiralty hath power within the sea-flood, over all sea-faring men, and in all sea-faring causes and debates, civil and criminal. So that no other judge of any degree may meddle therewith, but only by way of assistance, as it was found in the action brought by Anthony de la Tour against Christian Martens, November 6th, 1542." Zouch. 91. "Connoftront (les juges de l'amirauté) pareillement des frateriés, pillages et desertions des equip ages, et généralement de tous crimes et delits com mis sur mer, ses ports, havres, et rivages." Ordonnance de la marine, L. 1, t. 2, art. 10, de la Compétence. "L'amirauté étoit une veritable jurisdiction les personnes tant au criminel qu'au civil, et cerayant le droit de glaive et conséquemment de juger taines choses qui par leur nature étoient purement maritimes, ce qui résulte du titre de la compétence. art. 2, et 10. Le tribunal des juges consuls jugoient les choses commerciales; d'où il résultoit que les amirautés connoissent de tous les procès, actions et contrats survenus pour vente le navires naufrages. assurances, etc. et les tribunaux consulaires de tous actes de commerce Durement mercantile." Boucher, Droit Maritime, 727. les 3.-3 Dall. 297. 4. The Fabius, 2 Rob. 245. lished.1 It is not pretended that the place | cient law of the admiralty, independent of stat. where the ship of war lay at the time this of-utes; when thus proceeding, it never acted withfense was committed is within the limits of the out the aid of a grand and petit jury. There is county of Middlesex. By the act of the legis- no doubt the courts of the United States are lature of Massachusetts of the 26th of March, 1793, all the territory of the county of Suffolk not comprehended within the towns of Boston and Chelsea, was formed into a new county by the name of Norfolk. And by this act and the subsequent acts of the 20th of June, 1793, and 18th of June, 1803, the county of Suffolk now comprehends only the towns of Boston and 364] Chelsea. The locus in quo cannot be within the body of either of these counties, or of the old county of Suffolk; for there is no positive law fixing the local limits of the counties themselves, or of the towns included therein; and according to the facts stated on the record, it is at least doubtful whether a person on the land on one side of the waters of the harbor could discern what was done on the other side. If the locus in quo be not within the body of any county, it is confessedly within the admiralty jurisdiction. That jurisdiction is exclusively vested in the United States courts, and therefore the state court could not take cognizance of this offense. To whichever forum, however, the cause be assigned, the accused is equally safe. In either court the trial is by a jury, and there is the same privilege of process to compel the attendance of witnesses, etc. The objection commonly urged to the admiralty jurisdiction, that it proceeds according to the course of the civil law, and without the intervention of a jury, would not apply. Besides, that objection is wholly unfounded, even as applied to the court when proceeding in criminal cases according to the an "This day, the king being present in council, the articles and propositions following, for the accom modating and settling the difference concerning prohibitions, arising between His Majesty's courts at Westminster, and his court of admiralty, were fully debated and resolved by the board; and were then likewise, upon reading the same, as well before the judges of His Majesty's said courts at Westminster, as before the judge of his said court of admiralty, and his attorney-general, agreed unto, and subscribed by them all in His Majesty's presence, viz.: "1. If suit should be commenced in the court of admiralty upon contracts made, or other things personal done beyond the sea, or upon the sea, no prohibition is to be awarded. "2. If suit be before the admiral for freight or mariner wages, or for breach of charter-parties, for wages to be made beyond the seas; though the charter-party happen to be made within the realm; so as the penalty be not demanded, a prohibition courts of limited jurisdiction, but not limited as to each general class of cases of which they take cognizance. The terms of the constitution embrace *"all cases of admiralty and [*365 maritime jurisdiction;" civil and criminal, and whether the same arise from the locality or from the nature of the controversy. The meaning and extent of these terms is to be sought for, not in the common law, but in the civil law. Suppose the terms had been jus postliminii, or jactitation of marriage; where else, but to the civil law, could resort be had in order to ascertain their extent and import? It may be that the jurisdiction of the civil law courts is a subdivision of the great map of the common law; but in order to ascertain its limits, extent and boundaries, the map of this particular province must be minutely inspected. The common law had no imperial prerogative over the civil law courts by which they could be controlled, or have been in fact controlled. The terrors of prohibition were disregarded, and the contest between these rival jurisdictions was continued with unabated hostility until the agreement signed by all the judges in 1632, and ratified by the king in council. The war between them would never have been termi- [*366 nated, but by the overruling authority of the king in counsel. A temporary suspension of hostilities had been effected by a previous agreement of *the judges of the King's [*367 Bench and admiralty, made in 1575; but that agreement was soon violated by the common law courts." So that the limits of the adis not to be granted. But if the suit be for the penalty, or if the question be made, whether the charter-party be made or not; or whether the plaintiff did release, or otherwise discharge the same within the realm; this is to be tried in the king's courts, and not in the admiralty. "3. If suit be in the court of admiralty, for building, amending, saving, or necessary victualing of a ship against the ship itself, and not against any party by name, but such as for his interest makes himself a party; no prohibition is to be granted, though this be done within the realm. "4. Although of some causes arising upon the Thames beneath the bridge, and divers other rivers beneath the first bridge, the king's courts have cognizance; yet the admiralty hath also jurisdiction there in the point specially mentioned in the statute of Decimo quinto Richardi Secundi, and also by exposition and equity thereof, he may inquire of and redress all annoyances and obstructions in those rivers, that are any impediment to navigation or passage to or from the sea; and no prohibition is to be granted in such cases. "5. If any be imprisoned, and, upon habeas corpus brought, it be certified, that any of these be the cause of his imprisonment, the party shall be remanded. "Subscribed 4th February, 1632, by all the judges of both benches." Cro. Car. 296, London Ed. of 1657. By Sir Harbottle Grimstone. These resolutions are inserted in the early editions of Croke's reports, but left out in the later, seemingly ex industria. 2 Brown's Civ. & Adm. Law, 79. "12th of May, 1575. "The request of the judge of the admiralty to the Lord Chief Justice of Her Majesty's Bench, and his colleagues, with their answers to the same. 5. "1st Request. That after judgment or sentence given in the Court of Admiralty, in any cause or appeal made from the same to the High Court of Chancery, it may please them to forbear the granting of any writ of prohibition, either to the judge of said court or to Her Majesty's delegates, at the sute of him by whom such appeal shall be made, seeing by choice of remedy in that way, in reason 368*] miralty *jurisdiction in England, as fixed | place where they arise. The first class includes at the time the United States constitution was all questions of prize, and all maritime conestablished, could not be ascertained by the tracts wherever made, and wherever to be exe369*] common law alone. Resort *must have been had for this purpose to the resolutions of the king in council, in 1575 and 1632, and to the statutes of Richard II. and Henry VIII. 370*] *The framers of the constitution took a large and liberal view of this subject. They were not ignorant of the usurpations of the common law courts upon the admiralty jurisdiction, and therefore used, ex industria, the broad terms, "all cases of admiralty and maritime jurisdiction;" leaving the judiciary to determine the limit of these terms, not merely by the inconsistent decisions of the English common law courts (which are irreconcilable with each other, and with the remains of jurisdiction that are by them acknowledged still to belong to the admiralty), but by an impartial view of the whole matter, going back to the statute 28th Henry VIII. ch. 15, which has its original foundations. What cases are "of admiralty and maritime jurisdiction," must be determined either by their nature or by the he ought to be contended therewith, and not to be, "2d. Request. That prohibitions hereafter be not granted upon bare suggestions or surmises, without summary examination and proof thereof, wherein it may be lawful to the judge of the admiralty, and the party defendant to have counsel, and to plead for the stay thereof, if there shall appear cause. "Answer. They have agreed that the judge of the admiralty and the party defendant shall have counsel in court, and to plead to stay, if there may appear evident cause. 3d Request. That the judge of the admiralty, according to such an ancient order as hath been taken by King Edward I., and his council, and according to the letters patent of the Lord Admiral for the time being, and allowed by other kings of the land ever since, and by custom time out of the memory of man, may have and enjoy cognition of all contracts, and other things, rising as well beyond as upon the sea, without let or prohibition. "Answer. This is agreed upon by the said Lord Chief Justice and his colleagues. "4th Request. That the said judges may have and enjoy the knowledge of the breach of charterparties, made betwixt masters of ships and merchants for voyages to be made to the parts beyond the sea, and to be performed upon and beyond the sea, according as it hath been accustomed time out of mind, and according to the good meaning of the 32d of Henry VIII., c. 14, though the same charter-parties be made within the realm. "Answer. This is likewise agreed upon, for things to be performed, either upon or beyond the sea, though the charter-party be made upon the land, by the statute of the 32d of Henry VIII., chap. 14. "5th Request. That writs of corpus cum causa be not directed to the said judge, in causes of the nature aforesaid, and if any happen to be directed, that it may please them to accept of the return thereof, with the cause, and not the body, as it hath always been accustomed. "Answer. If any writ of this nature be directed in the causes before specified, they are content to return the bodies again to the lord admiral's jail, upon certificate of the cause to be such, or if it be for contempt or disobedience to the court in any such cause.' Zouch's Jurisdiction of the Admiralty of England Asserted, 121. Extract from "The complaint of the Lord Admiral of England, to the King's Most Excellent Majesty, against the judges of the realm, concerning prohibitions granted to the Court of Admiral cuted. The second includes all torts and offenses committed on the high seas, and in ports and rivers within the ebb and flow of the tide. It is within the latter branch of the admiralty jurisdiction that the present case falls. The jurisdiction of the admiralty all over Europe, and the countries conquered and colonized by Europe, extends to the sea, and its inlets, arms and ports; wherever the tide ebbs and flows. Even in England, this particular offense, when "committed in great ships, being hovering in the main stream of great rivers, beneath the bridges of the same, nigh to the sea," is within the admiralty jurisdiction. The place where this murder was committed is precisely within the jurisdiction of the admiralty as expounded *by Lord IIale in his commentary on [*371 been preferred to Lord Coke's construction by all the judges of England in the very recent case of King v. Bruce.1 *The observation of [*372 ty, 11 February, penultimo die Termini Hillarii, Anno 8, Jac. Regis., etc." "5. To the end that the admiral jurisdiction may receive all manner of impeachment and interruption, the rivers beneath the first bridge where it ebbeth and floweth, and the ports and creeks, are by the judges of the common law affirmed to be no part of the seas, nor within the admiral jurisdiction. And whereupon prohibitions are usually awarded upon actions depending in that court, for contracts and other things done in those places; notwithstanding that by use and practice, time out of mind, the Admiral Court have had jurisdiction within such ports, creeks and rivers. "7. That the agreement made anno domini 1575, between the judges of the King's Bench and the Court of Admiralty, for the more certain and quiet execution of admiral jurisdiction, is not observed as it ought to be." Zouch. Preface. The last of the above articles of complaint was answered by Sir Edward Coke in the name of the common law judges as follows: "Answer. The supposed agreement mentioned in this article hath not as yet been delivered unto us, but having heard the same read over before His Majesty (out of a paper not subscribed with the hand of any judge) we answer, that for so much thereof as differeth from these answers, it is against the laws and statutes of the realm; and therefore the judges of the King's Bench never assented thereunto, neither doth the phrase thereof agree with the terms of the law of the realm." 1.-At the admiralty sessions holden at the Old Bailey in the year 1812, John Bruce was tried before Lord Ellenborough, Ch. J., for the willful murder of a ferry boy of the name of James Dean. "The evidence of the fact was extremely clear, and was fully confessed by the prisoner himself at the trial, and the jury found him guilty. But it appeared also, that the place in which the murder was committed is a part of Milford Haven, in this passage over the same, between Bulwell and the opposite shore near the town of Milford, the passage there being about three miles over. It was about seven or eight miles from the mouth of the river or open sea, and about sixteen miles below any bridges over the river; the water there, which was always perfectly salt, was generally above twentythree feet deep, and the place was, excepting at very low tides, indeed, never known to be dry. Men-of-war of seventy-four guns were then building near an inlet close by the place. In spring tides, sloops and cutters of one hundred tons burthen are navigable where the body was found, which is also nearly opposite to where men-of-war ride. The deputy Vice-Admiral of Pembrokeshire said, that he had of late employed his water bailiffs to execute process in that part of the haven, but there was no evidence either way, as to the execution of the common law process there. "The court upon this evidence left the case to |