PITNEY, J., dissenting. 244 U. S. Constitution, in granting judicial power over cases of admiralty and maritime jurisdiction, along with like power over all cases in law and equity arising under the laws of the United States, intended to exclude common-law courts, state or national, from any part of their concurrent jurisdiction in cases of maritime origin, or to deprive them of the judicial power, theretofore existing, to decide such cases according to the rules of the common law. It is matter of familiar history that one of the chief weaknesses of the Confederation was in the absence of a judicial establishment possessed, of general authority. Except that the Continental Congress, as an incident of the war power, was authorized to establish rules respecting captures and the disposition of prizes of war and to appoint courts for the trial of piracies and felonies committed on the high sea, and for determining appeals in cases of capture, and except that the Congress itself, through commissioners, was to exercise jurisdiction in disputes between the States and in controversies respecting conflicting land grants of different States, there was no provision in the Articles of Confederation for establishing a judicial system under the authority of the general government. . The result was that not only private parties, in cases arising out of the laws of the Congress, but the United States themselves, were obliged to resort to the courts of the States for the enforcement of their rights. Many cases of this character are reported, some even antedating the Confederation. Respublica v. Sweers (1779), 1 Dall. 41; Respublica v. Powell (1780), 1 Dall. 47; Respublica v. De Longchamps (1784), 1 Dall. 111. Even treason was punished in state courts and under state laws. See cases of Molder, Malin, Carlisle and Roberts (1778), 1 Dall. 33-39. Before the Revolution, courts of admiralty jurisdiction were a part of the judicial systems of the several Colonies. 244 U. S. PITNEY, J., dissenting. Waring v. Clarke, 5 How. 441, 454-456; Benedict on Admiralty, §§ 118-165. Upon the outbreak of the War questions of prize law became acute, and the colonial Congress, by resolutions of November 25, 1775, passed in the exercise of the war power (3 Dall. 54, 80) made appropriate recommendations for the treatment of prizes of war, but remitted the jurisdiction over such questions to the courts of the several Colonies, reserving to itself only appellate authority. This system continued until the year 1780 (after the submission of the Articles of Confederation, but before their final ratification), when the Congress established a court for the hearing of appeals from the state courts of admiralty in cases of capture. The opinions of this court are reported in 2 Dall. 1-42, and numerous cases decided without opinion, as well as some of those decided by committees of the Congress prior to the establishment of the court, are referred to in the late Bancroft Davis' "Federal Courts Before the Constitution," 131 U. S., Appendix, xix-xlix. The weak point of this system was the want of power in the central government to enforce the judgment of the appellate tribunal when it chanced to reverse the decree of a state court. There were some curious cases of conflicting jurisdiction, illustrated by Doane v. Penhallow (1787), 1 Dall. 218, 221; Penhallow v. Doane (1795), 3 Dall. 54, 79, 86; and United States v. Peters (1809), 5 Cranch, 115, 135, 137. It was under the influence of numerous experiences of the inefficiency of a general government unendowed with judicial authority that the Constitutional Convention assembled in the year 1787. The fundamental need, to which the Convention addressed itself in framing the judiciary article, was to set up a judicial power covering all subjects of national concern. There was no greater need to establish jurisdiction over admiralty and maritime causes than over controversies arising under the Constitution and laws of the Union. There was no purpose to PITNEY, J., dissenting. 244 U. S. establish a system of substantive law in any of the several classes of cases included within the grant of judicial power. The language employed makes it plain that, with the few express exceptions already noted (treason, etc.), the rules of decision were to be sought elsewhere. The entire absence of a purpose to establish a maritime code is manifest not only from the omission of any reference to the laws of Oleron, the laws of Wisbuy, or any other of the maritime codes recognized by the nations of Europe, but further from the fact that the Colonies differed among themselves as to maritime law and admiralty practice, and that their system in general differed from that which was administered in England. The evident purpose, in this as in the other classes of controversy, was that the courts of admiralty should administer justice according to the previous course and practice of such courts in the Colonies, just as the courts of common-law and equity jurisdiction were to proceed according to the several systems of substantive law appropriate to courts of their respective kinds; subject, of course, to the power of Congress to change the rules of law respecting matters lying within its appropriate sphere of action. Undoubtedly the framers of the Constitution were advised of the ancient controversy in England between the common-law courts and the courts of admiralty respecting the extent of the jurisdiction of the latter. They were aware of the dual function of the admiralty courts as courts of instance and as prize courts, and of the established rule that in civil causes the jurisdiction of the instance court was concurrent with that of the courts of common law. They must have known that, whatever question had existed as to the territorial limits of the jurisdiction of the admiralty, it never had been questioned that in suits for mariners' wages and suits upon policies of marine insurance, and in other actions ex contractu having a maritime character, and also in actions of tort 244 U. S. PITNEY, J., dissenting. arising upon the sea, the courts of common law exercised, and long had exercised, concurrent jurisdiction. Whatever early doubts may have existed had been based not upon any inherent incapacity of the common-law courts to deal with the subject matters, but upon the ancient theory of the venue, and disappeared with the recognition of the fictitious venue. The grant of judicial power in cases of admiralty and maritime jurisdiction never has been construed as excluding the jurisdiction of the courts of common law over civil causes that before the Constitution were subject to the concurrent jurisdiction of the courts of admiralty and the common-law courts. The First Congress did not so construe it, as the saving clause in the Judiciary Act conclusively shows. And, assuming that the States, in the absence of legislation by Congress, would be without power over the subject matter, this saving clause, still maintained upon the statute book, is a sufficient grant of power. Jurisdiction in prize cases, as has been shown, springs out of the possession of a prize of war. Civil proceedings in rem, to be mentioned hereafter, are based upon the maritime lien, where possession in the claimant is neither necessary nor usual as is the case with common-law liens. With these exceptions, both resting upon grounds peculiar to the forum of the admiralty, concurrent jurisdiction of the courts of common law in civil cases of maritime origin always has been recognized by this court. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 390; Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 458; The Belfast, 7 Wall. 624, 644– 645; Insurance Co. v. Dunham, 11 Wall. 1, 32; Leon v. Galceran, 11 Wall. 185, 187-188; Steamboat Co. v. Chase, 16 Wall. 522, 533; Schoonmaker v. Gilmore, 102 U. S. 118; Manchester v. Massachusetts, 139 U. S. 240, 262. Nor is the reservation of a common-law remedy limited to such causes of action as were known to the common law PITNEY, J., dissenting. 244 U. S. at the time of the passage of the Judiciary Act. It includes statutory changes. Steamboat Co. v. Chase, 16 Wall. 522, 533, 534; Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 644. Those remedies which were held not to be commonlaw remedies, within the saving clause, in The Moses Taylor, 4 Wall. 411, 427, 431; The Hine v. Trevor, 4 Wall. 555, 571, 572; The Belfast, 7 Wall. 624, 644; Steamboat Co. v. Chase, 16 Wall. 522, 533, and The Glide, 167 U. S. 606, 623, provided for imposing a lien on the ship by proceedings in the nature of admiralty process in rem, and it was for this reason only that they were held to trench upon the exclusive admiralty jurisdiction of the courts of the United States. The distinction was noticed in Leon v. Galceran, 11 Wall. 185, 189, and again in Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 642. In the latter case it was pointed out (p. 644) that the reservation of a common-law remedy where the common law is competent to give it was not confined to common-law actions but included remedies without action, such as a distress for rent or for the trespass of cattle; a bailee's remedy by detaining personal property until paid for work done upon it or for expenses incurred in keeping it; the lien of an innkeeper upon the goods of his guests, and that of a carrier upon things carried; the remedy of a nuisance by abatement, and others. The most recent definition of the rule laid down in The Hine v. Trevor and other cases of that class is in Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303. I have endeavored to show, from a consideration of the phraseology of the constitutional grant of jurisdiction and the act of the First Congress passed to give effect to it, from the history in the light of which the language of those instruments is to be interpreted, and from the uniform course of decision in this court from the earliest time until the present, these propositions: First, that the grant of jurisdiction to the admiralty was not intended to be ex |