126 ADMIKALTY navy. These courts were abolished in 1791, and their functions distributed to other tribu- nals. All commercial questions were assigned to the tribunals of commerce, matters of prizes to a special court called the council of prizes, and the criminal jurisdiction was transferred partly to courts of assize and partly to the cor- rectional police. In Ireland there also exists, unless very recent changes have been made, a high court of admiralty which is independent of that of England, and has a jurisdiction of the same character and quite as extensive. Such a court also existed in Scotland until it was abolished by statute of 1 William IV., ch. 69. Its jurisdiction on the instance side was transferred to other courts. Its authority in cases of prize and capture had been already, by 6 George IV., ch. 120, vested in the high court of admiralty of England. The American admi- ralty exists under the clause of the constitution which declares that the judicial power shall ex- tend to "all causes of admiralty and maritime jurisdiction," and the statute vesting that pow- er, which gives to the district courts exclusive original cognizance of all civil causes of that de- scription. The interpretation of this clause of the constitution has brought out conflicting opinions as to its proper meaning. For upon the principles and rules of construction which are familiarly applied in determining what is the law of the United States in civU or criminal or equity cases, in the absence of specific legislation, the question fairly arises whether the admiralty and maritime jurisdiction contemplated by the constitution was the jurisdiction as it existed in England when the colonies declared their independence, or as it existed in the colonial courts at the time of the revolution, or as it was exercised by the states when the constitu- tion was adopted ; whether it was not rather that characteristic and proper jurisdiction of the English admiralty before it was taken away from it by prohibitions or encroachments ; or whether finally the clause was not, in a still more liberal spirit, designed to embrace all causes relating to shipping and maritime com- merce which, in the broadest sense and within the traditional functions of admiralty courts of full powers, are regarded as maritime and ad- miralty cases. Though no very definite test by which the extent of the jurisdiction is to be de- termined has been laid down, yet it is certain that the American jurisdiction does not depend absolutely on any of the criteria suggested by the propositions just recited, and that the clear tendency at least of our decisions is to extend the authority of the court over its ancient do- main, without confining it within limits pre- scribed by any particular historical precedent. Our greatest judges, and eminently Marshall and Story, have construed the constitutional grant with the utmost liberality, and with the purpose of embracing within its scope the largest powers ; and especially within the last 20 years the disposition of the supreme court has been to regard all causes of which foreign admiralty courts have usually and characteris- tically taken cognizance, and which are histor- ically known as admiralty and maritime causes, as being cases within the constitutional provi- sion. The first statute which drew upon the constitutional grant, and first actually vested its power in our courts, was the act of 1789, by which "exclusive original jurisdiction of civil causes of maritime and admiralty jurisdiction " was assigned to the district courts. This stat- ute, it will be observed, repeats the language of the constitution, and therefore gives no aid to the definition of the power. But the extent of it has been illustrated by a multitude of ad- judicated cases, and from these the general character and range of the authority can be easily gathered. The jurisdiction can be most conveniently considered under two aspects : first, as it is determined by the subject mat- ter; and second, as it is determined by the locality. Upon what is probably the right ground of construction, the first of these is the proper criterion ; for, as has already been inti- mated, the reason of the thing depends proba- bly only upon the consideration whether the subject is of a maritime character or not. The early contests which arose in England upon the competency of the admiralty to interfere with- in the bodies of counties or other land lines have, however, fixed the criterion of locality so firmly that it has been constantly appealed to here ; but it has been found singularly embar- rassing in this country from the fact that so much of our commerce is carried on on great inland seas, and on great rivers which are navigable through the whole extent of our ter- ritory. The European states afford no parallel to these, and to adopt literally the limits of the jurisdiction fixed by the practice of their ad- miralty courts was to exclude the ships and commerce of all these waters. Nevertheless, the precedents of the foreign admiralty law in these respects were closely followed for fully half a century after the foundation of the gov- ernment ; and though our courts did not sub- mit to the limited jurisdiction by which the English courts were restrained within head- lands or the bodies of counties, yet they did hold regularly that no cause came within their power unless it arose within the movement of the tides. At last a case arose in the harbor of New Orleans. There the waters of the Mississippi flow always outward and never backward with the ocean tide ; but upon proof that there was nevertheless a perceptible rise and fall of the water, caused by the tides be- low, it was held that this was sufficient, and that the jurisdiction attached. The decision was admitted to be a forced one, and the tide on which it rested was afterward spoken of in the supreme court rather contemptuously as "an occult tide without ebb or flow." But there was good sense at the bottom of the decision, and the inconvenience of making tide waters the limit of the jurisdiction led to the enact- ment in 1845 of the famous act " extending the
