Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/542

§ 1667. We have been thus far considering the admiralty and maritime jurisdiction in civil cases only. But it also embraces all public offences, committed on the high seas, and in creeks, havens, basins, and bays within the ebb and flow of the tide, at least in such as are out of the body of any county of a state. In these places the jurisdiction of the courts of admiralty over offences is exclusive; for that of the courts of common law is limited to such offences, as are committed within the body of some county. And on the sea coast, there is an alternate, or divided

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exclusive. But it is believed, that this opinion is founded in a mistake. It is exclusive in all matters of prize, for the reason, that at the common law this jurisdiction is vested in the courts of admiralty, to the exclusion of the courts of common law. But in cases, where the jurisdiction of the courts of common law and the admiralty are concurrent, (as in cases of possessory suits, mariners' wages, and marine torts.) there is nothing in the constitution, necessarily leading to the conclusion, that the jurisdiction was intended to be exclusive; and there is as little ground, upon general reasoning, to contend for it. The reasonable interpretation of the constitution would seem to be, that it conferred on the national judiciary the admiralty and maritime jurisdiction, exactly according to the nature and extent and modifications, in which it existed in the jurisprudence of the common law. Where the jurisdiction was exclusive, it remained so; where it was concurrent, it remained so. Hence, the states could have no right to create courts of admiralty, as such, or to confer on their own courts, the cognizance of such cases, as were exclusively cognizable in admiralty courts. But the states might well retain and exercise the jurisdiction in cases, of which the cognizance was previously concurrent in the courts of common law. This latter class of cases can be no more deemed cases of admiralty and maritime jurisdiction, than cases of common law jurisdiction. The judiciary act, of 1789, ch. 20, § 9, has manifestly proceeded upon this supposition; for, while it has conferred on the District Courts, "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction," it has, at the same time, saved "to the suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." We shall, hereafter, have occasion to consider more at large, in what cases there is a concurrent jurisdiction in the national and state courts.