Curtis, in his Commentaries, sections 46, 120, 124, 125, 129 and 131, argues the case at large, and holds that the jurisdiction of the Federal Courts is exclusive.

See The Chusan, 2 Story, 461; The Henrietta, 1 Newb., 284; Ashbrook v. Golden Gate, 1 Newb., 296, where the subject is fully and ably argued. The Spartan, 1 Ware, 147; 2 Sum., 592; Wall v. The Royal Saxon, 2 Amer. Law Reg., 324; The Flora v. The Globe, Amer. Law Jour., Feb., 1851; Scott v. Young America, 1 Newb., 101.

Mr. Jno. P. Cook, for defendant in error: The question before this court is: have state courts jurisdiction to hear and determine cases of this character, or are they exclusively cognizable in courts of admiralty?

This proceeding was commenced under chapter 158 of the Revised Code of the State of Iowa. It is claimed that the above law is in viola tion of the Constitution of the United States.

The Judiciary Act of 1789, invests the Federal District Court with exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors, in all cases, the right of a common law remedy when the common law is competent to give it. This Act was amended in 1845, and extended the admiralty jurisdiction of the Federal Courts to cases on the lakes and navigable waters connecting the same, but expressly saving to parties the right of a concurrent remedy which may be given by state laws.

In England, the jurisdiction of courts of admiralty was confined to the ebb and flow of the tide; and our Supreme Court in the cases of The Thomas Jefferson, 10 Wheat., 428, and The Steamboat New Orleans v. Phoebus, 11 Pet., 175, followed the English decisions, confining the admiralty jurisdiction. But in 1851, the Supreme Court of the U. S., in the case of The Propellor Genesee Chief, 12 How., 443, overruled the above two named cases, and held that the jurisdiction of courts of admiralty extended to the lakes and navigable waters of the United States. See the elaborate opinion of Taney, Ch. J. But neither in this case nor in any other case decided by the U. S. Supreme Court that we have been able to find, or to which we have been referred by plaintiff's counsel, do we find it decided that the jurisdiction of the U. S. District Court in cases of admiralty is exclusive; and we think we can safely say that no case can be found sustaining that doctrine.

The Judiciary Acts of Congress expressly save to suitors common law remedies and any concurrent remedies provided by state laws.

In the absence, then, of any decision by the U. S. Supreme Court, we may look at the action of the state courts on this question. In the

Clipper, 18 Ohio, 375; Percival v. Hickey, 18 Johns., 257; Thompson v. The Julius D. Morton, 2 Ohio St., 26; 3 Ohio St., 105; 20 Ohio St., 26.

Ang. Carr., sec. 651, after referring to authorities, says: "We have seen that the remedy in cases of collision lies either in the courts of common law or in the admiralty court." See, also, the important case of Taylor v. Carryl, 20 How., 583 (61 U. S., 1028).

Up to the time of the decision in the case of The Genesee Chief v. Fitzhugh, 12 How., 443, it was held by the United States Supreme Court, that courts of admiralty only had jurisdiction within the ebb and flow of the tide. Then it follows that up to that time state courts must have had exclusive jurisdiction over this class of cases, for there was no remedy in the law. Now, if they once had jurisdiction, there must be some law or provision of the Constitution which took it from them. We find none; but we do find the decision in 12 How., claiming that the courts of admiralty have jurisdiction above the ebb and flow of the tide.

This does not oust state courts from their jurisdiction.

The Federal Courts are of limited jurisdiction. They can only exercise the jurisdiction given by Act of Congress. Now, when parties go into Federal Courts, they must show by the pleadings (on the face of them) certain facts to give the court jurisdiction; such as residence, citizenship of the different parties, or such other facts as may be prescribed by law to affirmatively show jurisdiction in that court.

The Act of Feb. 26, 1845, under which alone the plaintiff can claim that the courts of the United States have jurisdiction of this case, provides that "The District Courts of the United States shall have, possess and exercise the same jurisdiction in matter of contract and tort arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upward, enrolled and licensed for the coasting trade, and at the time employed in business of commerce and navigation between ports and places in different States and Territories, upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of light steamboats and other vessels employed in navigation and commerce upon the high seas of all tide-waters within the admiralty and maritime jurisdiction of the U.S." Upon examination of the pleadings in thiscase, it will be found that there are no averments which affirmatively show jurisdiction in the United States District Court; but on the contrary, there is entire absence of all averments, which

Mr. Justice Miller delivered the opinion of the court:

This was a writ of error to the Supreme Court of the State of Iowa.

The substance of the record, so far as it is necessary to consider it here, is shortly this:

A collision occurred between the steamboats Ad. Hine and Sunshine, on the Mississippi River, at or near St. Louis, in which the latter vessel was injured. Some months afterwards, the owners of The Sunshine caused The Ad. Hine to be seized while she was lying at Davenport, Iowa, in a proceeding under the laws of that State, to subject her to sale in satisfaction of the damages sustained by their vessel.

The owners of The Ad. Hine interposed a plea to the jurisdiction of the state court. The point being ruled against them, it was carried to the Supreme Court where the judgment of the lower court was affirmed; and by the present writ of error, we are called upon to reverse the decision.

The record distinctly raises the question, how far the jurisdiction of the District Courts of the United States in admiralty causes, arising on the navigable inland waters of this country, is exclusive, and to what extent the state courts can exercise a concurrent jurisdiction.

Nearly all the States-perhaps all whose territories are penetrated or bounded by rivers capable of floating a steamboat-have statutes authorizing their courts, by proceedings in rem, to enforce contracts or redress torts, which, if they had the same relation to the sea that they have to the waters of those rivers, would be conceded to be the subjects of admiralty jurisdiction. These statutes. have been acted upon for many years, and are the sources of powers exercised largely by the state courts at the present time. The question of their conflict with the constitutional legislation of Congress, on the same subject, is now for the first time presented to this court.

We are sensible of the extent of the interests to be affected by our decision, and the importance of the principles upon which that decision must rest, and have held the case under advise. ment for some time, in order that every consideration which could properly influence the result might be deliberately weighed.

There can, however, be no doubt about the judgment which we must render, unless we are prepared to overrule the entire series of decis ions of this court upon the subject of admiralty jurisdiction on western waters, commencing with the case of The Genesee Chief, 12 How., 443, in 1851, and terminating with that of The Moses Taylor, decided at the present term [ante, 397]; for these decisions supply every element necessary to a sound judgment in the case before us.

From the organization of the government until the era of steamboat navigation, it is not strange that no question of this kind came before this court. The commerce carried on upon the inland waters prior to that time was so small, that cases were not likely to arise requiring the aid of admiralty courts. But with the vast increase of inland navigation consequent upon the use of steamboats, and the development of wealth on the borders of the rivers, which thus became the great water highways of an immense commerce, the necessity for an admiralty court, and the value of admiralty principles in settling controversies growing out of this system of transportation, began to be felt.

Accordingly, we find in the case of The Thomas Jefferson, reported in 10 Wheat., 428, that an attempt was made to invoke the jurisdiction in the case of a steamboat making a voyage from Shippingport, in Kentucky, to a point some distance up the Missouri River, and back again. This court seems not to have been impressed with the importance of the principle it was called upon to decide, as, indeed, no one could then anticipate the immense interests to arise in future, which, by the rulings in that case, were turned away from the forum of the Federal Courts. Apparently without much consideration-certainly without anything like the cogent argument and ample illustration which the subject has since received here-the court declared that no Act of Congress had conferred admiralty jurisdiction in cases arising above the ebb and flow of the tide.

In the case of The Orleans, in 11 Pet., 175, the court again ruled that the district court had no jurisdiction in admiralty, because the vessel, which was the subject of the libel, was engaged in interior navigation and trade, and not on tide-waters. The opinion on this subject, as in the case of The Thomas Jefferson, consisted of a mere announcement of the rule, without any argument or reference to authority to support it.

The case of Waring v. Clarke, 5 How., 441, grew out a collision within the ebb and flow of the tide of the Mississippi River, but also infra corpus comitatus. The jurisdiction was maintained on the one side and denied on the other with much confidence. The court gave it a very extended consideration, and three of the judges dissented from the opinion of the court which held that there was jurisdiction. The question of jurisdiction above tide-water was not raised, but the absence of such jurisdiction seems to be implied by the arguments of the court as well as of the dissenting judges.

U. S., Book 18.

29

453

That case arose under an Act of Congress, approved February 26th, 1845, 5 Stat. at L., 726, which provides that "the District Courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort arising in, upon, or concerning steamboats, or other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in navigation between ports and places, in different States and Territories, upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of like steamboats and other vessels employed in navigation and commerce upon the high seas and tide-waters within the admiralty and maritime jurisdiction of the United States." The Genesee Chief was libeled under this Act for damages arising from a collision on Lake Ontario. A decree having been rendered against the vessel, the claimants appealed to this court.

It was urged here that the Act, under which the proceeding was had, was unconstitutional. 1. Because the Act was not a regulation of commerce, and was not therefore within the commercial clause of the Constitution.

2. Because the constitutional grant of admiralty powers did not extend to cases originating above tide-water, and Congress could not extend it by legislation.

The court concurred in the first of these propositions, that the Act could not be supported as a regulation of commerce. The Chief Justice, who delivered the opinion, then entered into a masterly analysis of the argument, by which it was maintained that the admiralty power conferred by the Federal Constitution did not extend beyond tide-water in our rivers and lakes.

erned by it. The cases The Thomas Jefferson and The Steamboat Orleans, already referred to, were then examined and overruled.

This opinion received the assent of all the members of the court except one.

Although the case arose under the Act of 1845, already cited, which in its terms is expressly limited to matters arising upon the lakes and the navigable waters connecting said lakes, and which the Chief Justice said was a limitation of the powers conferred previously on the Federal Courts, it established principles under which the District Courts of the United States began to exercise admiralty jurisdiction of matters arising upon all the public navigable rivers of the interior of the country.

This court also, at the same term in which the case of The Genesee Chief was decided, held, in Fretz v. Bull, 12 How., 466, in which the point was raised in argument, that the Federal Courts had jurisdiction according to the principles of that case in the matter of a collision on the Mississippi River above tide-water.

As soon as these decisions became generally known, admiralty cases increased rapidly in the District Courts of the United States, both on the lakes and rivers of the West. Many members of the legal profession engaged in these cases, and some of the courts have from this circumstance assumed, without examination, that the jurisdiction in admiralty cases arising on the rivers of the interior of the country is founded on the Act of 1845; and such is perhaps the more general impression in the West. The very learned court whose judgment we are reviewing has fallen into this mistake in the opinion which it delivered in the case before us, and it is repeated here by counsel for the defendant in error.

But the slightest examination of the language of that Act will show that this cannot be so, as it is confined, as we have already said, to cases arising "on the lakes and navigable waters connecting said lakes." The jurisdiction upon those waters is governed by that statute, but its force entends no further.

The jurisdiction thus conferred is in many respects peculiar; and its exercise is in some important particulars different under that Act from the admiralty jurisdiction conferred by the Act of September 24th, 1789.

1. It is limited to vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade.

2. To vessels employed in commerce and navigation between ports and places in differ

3. It grants a jury trial if either party shall demand it.

4. The jurisdiction is not exclusive, but is expressly made concurrent, with such remedies as may be given by state laws.

But the true reason why the admiralty powers of the Federal Courts began now to be exercised for the first time in the inland waters was this: the decision in the case of The GenesEE Chief, 12 How., 443, having removed the imaginary line of tide-water which had been supposed to circumscribe the jurisdiction of the admiralty courts, there existed no longer any reason why the general admiralty powers conferred on all the district courts by the 9th section

down to that of The Moses Taylor, decided at this term, we cannot escape this conclusion. The succeeding cases are in reality but the necessary complement and result of the principles ples decided in the case of The Genesee Chief. The propositions laid down there, and which were indispensable to sustain the judgment in that case, bring us logically to the judgment which we must render in this case. With the doctrines of that case on the subject of the extent of the admiralty jurisdiction we are satis fied, and should be disposed to affirm them now if they were open to controversy.

It may be well here to advert to one or two considerations to which our attention has been called, but which did not admit of notice in the course of observation which we have been pursuing without breaking the sequence of the argument.

1. It is said there is nothing in the record to show that The Hine was of ten tons burden or upwards, and that, therefore, the case is not brought within the jurisdiction of the Federal Courts. The observation is made, in the opinion of the Supreme Court of Iowa, in reference to the provision of the Act of 1845, which that court supposed to confer jurisdiction on the Federal Courts in the present case, if it had such jurisdiction at all. We have already shown that the jurisdiction is founded on the Act of 1789. That Act also speaks of vessels of ten tons burden and upwards, but not in the same connection that the Act of 1845 does. In the latter Act it is made essential to the jurisdiction that the vessel which is the subject of the contract or the tort, should be enrolled and licensed for the coasting trade, and should be of twenty tons burden or upwards. In the Act of 1789, it is declared that the district courts shall have jurisdiction in admiralty of seizures for violations of certain laws, where such seizures are made on rivers navigable by vessels of ten tons burden or upwards from the sea. In the latter case, the phrase is used as describing the carrying capacity of the river where the seizure is made. In the former case, it relates to the capacity of the vessel itself.

2. It is said that the Statute of Iowa may be fairly construed as coming within the clause of the 9th section of the Act of 1789, which "saves to suitors, in all cases, the right of a common law remedy where the common law is competent to give it."

suit against a personal defendant by name, and because of inability to serve process on him on account of non-residence, or for some other reason mentioned in the various statutes allow. ing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may be rendered against him. This proceeding may be had against an owner or part owner of a vessel, and his interest thus subjected to sale in a common law court of the State.

Such actions may, also, be maintained in personam against a defendant in the common law courts, as the common law gives; all in consistence with the grant of admiralty powers in the 9th section of the Judiciary Act.

But it could not have been the intention of Congress, by which the exception in that section, to give the suitor all such remedies as might afterwards be enacted by state statutes, for this would have enabled the States to make the jurisdiction of their courts concurrent in all cases, by simply providing a statutory rem edy for all cases. Thus the exclusive jurisdiction of the Federal Courts would be defeated. In the Act of 1845, where Congress does mean this, the language expresses it clearly; for after saving to the parties, in cases arising under that Act, a right of trial by jury, and the right to a concurrent remedy at common law, where it is competent to give it, there is added, “any concurrent remedy which may be given by the state laws where such steamer or other vessel is employed."

The judgment is reversed, and the case is remanded to the Supreme Court of Iowa, with directions that it be dismissed for want of jurisdiction.

Cited 7 Wall., 288, 641; 8 Wall., 20, 24; 10 Wall., 563; 11 Wall., 191; 15 Wall., 384; 16 Wall., 531; 21 Wall., 556; 93 U. S., 366; 102 U. S., 119; 109 U. S., 632; 2 Biss., 300: 3 Ben., 270; 11 Blatchf., 453, 456, 465, 466; 1 Abb. U. S., 340; 2 Abb. U. S., 77; 1 Bro., 180, 197; 1 Sawy., 355,356; 7 Sawy., 185;3 Hughes, 481;5 Hughes, 376: 2 Flipp., 378, 408; 28 Ind., 341, 342; 29 Ind., 53; 57 N. Y., 247: 12 Minn., 467:34 Cal., 680; 42 Cal., 473; 46 Ill., 514, 517; 47 Ill., 337, 340; 92 Pa. St., 46; 2 Am. Rep., 644-647 (42 Miss., 715); 3 Am. Rep., 735, 738 (43 N. Y., 554); 7 Am. Rep., 190 (32 Iowa, 223); 7 Am. Rep., 230 (34 Ind., 458); 8 Am. Rep., 587 (23 La., 39); 11 Am. Rep., 282 (9 R. L., 419); 14 Am. Rep., 89 (62 fll.. 221); 22 Am. Rep., 399 (28 Ohio, 610); 35 Wis., 107; 34 N. J. L., 98; 18 O. St., 531.

v.

JAMES LEE.

Judgment upon coupons of town bonds, affirmed.

notice in the nature of a monition, the vessel may be condemned and an order made for her

sale, if the liability is established for which she was sued. Such is the general character of the steamboat laws of the Western States.

While the proceeding differs thus from a common law remedy, it is also essentially different from what are in the West called suits by attachment, and in some of the older States foreign attachments. In these cases there is a

In an action upon coupons of bonds, issued by a town, in aid of a railroad, this court, upon its views heretofore expressed in several similar cases, affirm the judgment, with costs.

[No. 164.]

Submitted Apr. 18, 1867. Decided Apr. 22, 1867. I States for the District of Wisconsin.

'N ERROR to the Circuit Court of the United

Mr. M. H. Carpenter, for the defendant in error, presented the following statement and argument:

This was an action of debt on coupons of certain bonds issued by the Town of Mineral Point, in the State of Wisconsin, in aid of the Mineral Point Railroad Company; under and