If the libel charge the seizure as having been made on the water, when in fact it was made on the land, it is bad and must be either amended or dismissed.1

The district court has, however, no jurisdiction to enforce a lien for duties, by information in admiralty; because its revenue jurisdiction, by procedure in rem, extends only to seizures for forfeitures under the laws of impost, navigation, or trade. But an action at common law may be instituted, by the United States and in their name, in the district or in the circuit court, to recover possession of goods if they have a legal lien on them, or to recover damages for the illegal taking or detaining them.2 We have spoken hitherto only of the courts which have

the claim be admitted upon this preliminary proof, it is still open to contestation, and, by a suitable exceptive allegation in the admiralty, or by a correspondent plea in the nature of a plea in abatement to the person of the claimant, in the exchequer, the facts of proprietary interest sufficient to support the claim, may be put in contestation and formally decided. It is in this stage of the proceedings, and in this only, that the question of the claimant's right is generally open for discussion. If the claim is admitted without objection, and allegations or pleadings to the merits are subsequently put in, it is a waiver of the preliminary inquiry, and an admission that the party is rightly in court and capable of contesting the merits." But when, after the merits have been passed upon, it appears that the rights of some third person have been wrongfully invaded, it is a matter for the consideration of the court, but, in no shape, a matter which the original promovent could require at its hands.

1 The Sarah, 8 Wheat. 391.

2 United States v. 350 Chests of Tea, 12 Wheat. 486. In this case, a libel was filed against 350 chests of tea, for the purpose of compelling the payment of the duties thereon. The teas had been landed and stored, and fraudulently and secretly taken from the store-house. The court decided that the duties having been "secured to be paid," according to the statute, they were not now due, and proceeded, p. 497, "By the 9th section of the judiciary act, the district courts have exclusive original cognizance," etc. (giving the substance of the section), "Now it is not pretended that this is a civil cause of admiralty and maritime jurisdiction; and it has already been shown, that there is no law of the United States, of impost or otherwise, to warrant the seizure of the teas in question, or to subject them to forfeiture. But even if there were such a law, the only proceeding which could have been instituted under it, must have been to forfeit the articles seized, and not to subject them to the payment of duties. If the case be not one of forfeiture, we can perceive no ground upon which the district court could entertain a suit by way of libel to enforce the payment of duties. No jurisdiction is conferred upon that court in such case, either by the above section of the judiciary act, or by any other act of congress. There is no doubt but that a suit at common law might be instituted in that court as well as in the circuit court, in the name of the United States, founded upon their legal right to recover the possession of goods upon which they have a lien for duties, or damages for the illegal taking or detaining of the same. But the remedy which has been selected is not one which can obtain the sanction of this court."

a

admiralty jurisdiction within the United States; and it is certain that no courts can have this jurisdiction in the States, but those which are established by congress in pursuance of and in conformity with the third article of the constitution of the United States. But it is held that this limitation does not extend in this respect, at least, to the Territories; because congress legislates for them with the combined powers of the State and general governments. An act of a Territory created a court with authority to take jurisdiction of a case of salvage; and in such a case which came before it, a decree of sale for salvage of a cargo which had been stranded and brought within its territorial limits, was made by the territorial court, and sustained by the supreme court, and a sale made under it was held to be valid and to have changed the property.1

1 American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, was as follows: The insurance company libelled 356 bales of cotton, in the South Carolina district, demanding restitution thereof, on the ground that the property had been abandoned to them by the owners. Canter, the claimant, claimed on the ground that they had been sold to him, by virtue of an order of a territorial court of Florida, consisting of a notary and five jurors, to pay salvage assessed by them at 76 per cent. The district judge pronounced this decree a nullity, and ordered the restoration of the cotton, subject to 50 per cent. salvage. The circuit court decreed the whole cotton to the claimant, on the ground that the proceedings of the court at Key West were legal, and transferred the property. The opinion of Chief Justice Marshall is a model of acute and accurate reasoning. The substance of it, although it is difficult to condense that which is already so compact, may be stated thus:

The laws of Florida which had reference to the relations of the people to each other while under their Spanish sovereign, are in force after their annexation to this country, except where changed by congress, which has the power, under the constitution, of regulating and governing the Territories. The Act of Congress of 1823, provided for a territorial legislature, and this territorial legislature created the court which rendered the above decree. The same act provided two superior courts, to which it gave exclusive jurisdiction in criminal matters, and some civil matters. All civil matters were either under the preëxisting laws of the Territory, or under the laws in which this exclusive jurisdiction was given to the superior courts. This jurisdiction was to be coextensive with that conferred on the courts of the United States by the Judiciary Acts of 1789 and 1793. Admiralty and maritime cases are not such as were given exclusively to the superior courts; for to these courts was given exclusive jurisdiction of only such cases as arose "under the laws of the United States" and capital cases; and the constitution expressly makes a distinction, when, by Art. III. it gives the United States courts cognizance of three distinct classes of cases. Salvage is a case of admiralty and maritime jurisdiction, and as it was undoubtedly provided for under the preexisting laws of the Territory, is cognizable concurrently by the superior courts created by the act, and by the inferior court created by the territorial council.

But it is argued that the constitution requires that the judicial power of the United States shall be vested in "one supreme court, and in such inferior courts as congress

may from time to time establish," and that congress cannot vest admiralty jurisdiction in courts created by a territorial legislature.

To this it is answered that the very next sentence of the constitution declares, that "the judges both of the supreme and the inferior courts shall hold their offices during good behavior." The judges of the superior court of Florida hold their offices for the term of four years. These courts, then, are not constitutional courts, in which the judicial power conferred by the general government can be deposited. They are incapable of receiving it. They are legislative courts, created by virtue of that clause which enables congress to make all needful rules and regulations respecting the territories belonging to the United States. The people of Florida, though admitted to enjoy the privileges, rights, and immunities of the people of the United States, do not share in their political power, and cannot until Florida becomes a State. The courts referred to by the constitution, were meant for the States, and were a part of the federal system of government by which States having individual rights were bound together. But a Territory is not a State, and was not so considered by the framers of the constitution. The jurisdiction, then, with which these superior courts of Florida are invested, is not a part of that judicial power which is defined by the third article of the constitution, but is conferred by congress in execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States, in those courts only which are established in pursuance of the third article of the constitution, the same limitation does not extend to the territories. The act of the territorial legislature erecting the court by whose decree the cargo of the Point á Petre was sold, is valid; and a sale in pursuance of that decree changed the property.

CHAPTER III.

OF FOREIGN COURTS OF ADMIRALTY.

THE general subject of admiralty jurisdiction is commerce; for even its revenue and its military jurisdiction relate mainly to commercial matters. These are at home on the ocean, and as they make it a highway from country to country, instead of a barrier between them, they may be said to connect nations into some measure of fellowship and unity; and this, it may be believed, will grow with the advancing civilization of mankind. It might therefore be expected that courts, which deal with these subjects of universal interest, should not only be governed by similar principles in different nations and adopt similar forms, but that they should exercise a kind of common jurisdiction. They sometimes enforce each other's decrees, or complete in one country what is done in another. And frequently the citizens of one nation sue in the admiralty courts of another, and when comity demands it, their petitions will be heard and their causes determined.

In England, in an early case on this subject, an American vessel which had been captured, was recaptured by her crew and taken to England. Some of the crew who were English subjects and had shipped on the voyage to England with no intention of returning to America, libelled the ship for salvage, and the court entertained jurisdiction of the case. And subsequently four American seamen petitioned for reward for their services in the rescue and it was allowed them.1

In all matters which properly belong to the jus gentium, and where justice requires that the court should act, it will do so; as

1 The Two Friends, 1 Rob. Adm. 271, 276. See also, The Good Intent, cited 1 Rob. Adm. 286, where an American vessel was recaptured from the French by an American armed ship, and there being no opposition to the jurisdiction of the court, salvage was allowed.

in case of bottomry bonds. In respect to seamen's wages, as a general rule the court will take jurisdiction, if the suit is commenced with the consent of the representative of the country to which the ship belongs. And in some cases where this consent cannot be obtained, the court will proceed without it. It seems, however, that the consent of the foreign minister is essential, not in respect to the jurisdiction of the court, but merely as to the exercise of its discretion. But it is unwilling to enforce a mere municipal law of a foreign country, although it has jurisdiction of the subject-matter. It is for this reason, that the court will

1 The Gratitudine, 3 Rob. Adm. 240; The Jacob, 4 id. 245; The Madonna D'Idra, 1 Dods. 37.

2 The Courtney, Edw. Adm. 239; The Madonna D'Idra, 1 Dods. 37.

8 The Vrow Mina, 1 Dods. 234. In this case, a ship which belonged to an alien enemy, came to England under a British license, and was libelled for wages. The court entertained the suit, and stated that as the consent of the accredited minister could not be obtained, it would not be required. The same point was decided in The Maria Theresa, 1 Dods. 303, and the further reason was added, that the courts of the country to which the ship belonged, would not grant relief on account of the illegality of the voyage.

4 The Golubchick, 1 W. Rob. 143. The vessel in this case belonged to Russia, and was libelled for wages. The master appeared under protest, stating that the suit had been commenced without the consent of the Russian consul, or any other accredited agent of that government in the country. Dr. Lushington held, that "the court must possess original jurisdiction over the subject-matter, or it can have none at all; for the consent of a foreign consul or minister never could confer a jurisdiction upon a British court of judicature." The learned judge, however, said that he wished “it to be understood, that in all future cases of this kind, it must be held to be indispensable, that notice of the intended proceedings should be given in the first instance, to the representative of the foreign government. In so directing, I do not mean to intimate that the court would feel imperatively bound to act in accordance with the views that might be entertained by such representative; but I consider it is expedient that such intimation should be given, in order that, if any objection should be taken against the prosecution of the proceedings in this court, the court being informed of the grounds upon which such objection is taken, might be enabled to form its own judgment of the sufficiency of such objection, and adopt such a course as may be most conducive to the furtherance of justice in the cause."

5 The Courtney, Edw. Adm. 239. In this case, the statute of the United States was printed on the back of the shipping articles, requiring the master, in case of the discharge of the seamen in a foreign port, to pay to the American consul three months' wages over and above their wages then due, two thirds of which were to go to the seaman and one third to the treasury of the United States. The court entertained the suit for wages under the shipping articles, but refused to enforce the provisions of this statute. In The Madonna D'Idra, 1 Dods. 37, a claim was made by some Greek sailors, who had shipped at Smyrna for London, for their wages, and also, for an allow ance for their subsistence until they could return to their country. There was evidence that by the customary regulations of Turkey, it was the duty of a master to take his