Hendry Company v. Moore/Opinion of the Court

The Fish and Game Commission of California, having seized a purse net while it was being used for fishing in the navigable waters of the state in violation of the State Fish and Game Code, brought the present proceeding under § 845 of the Code St.Cal.1933, p. 471, for forfeiture of the net. The question for decision is whether the state court's judgment, directing that the net be forfeited and ordering the commission to sell or destroy it, is a 'common law remedy' which the 'common law is competent to give' within the statutory exception to the exclusive jurisdiction in admiralty conferred on district courts of the United States by § 9 of the Judiciary Act of 1789, 1 Stat. 76, 77, 28 U.S.C. §§ 41(3) and 371 (Third), 28 U.S.C.A. §§ 41(3) and 371(3).

Section 845 of the California Fish and Game Code declares that a net used in violation of the provisions of the Code is a public nuisance and makes it the duty of any arresting officer to seize the net and report its seizure to the commission. The statute requires the commission to institute proceedings in the state superior court for the forfeiture of the seized net and authorizes the court, after a hearing and determination that the net was used unlawfully, to make an order forfeiting it and directing that it be sold or destroyed by the commission.

In this case the commission seized the net while it was being used by the fishing vessel Reliance in navigable coastal waters of the state in violation of §§ 89 and 842, which prohibit fishing by net in the area in question, and respondents, the members of the commission, brought this proceeding in the state superior court for the forfeiture of the net. Petitioners appeared as claimants and after a trial the court gave judgment that the net be forfeited, ordering respondents to sell or destroy it. The Supreme Court of California at first set the judgment aside, but after rehearing affirmed, 18 Cal.2d 835, 118 P.2d 1, 3, holding that the remedy given by the judgment is a 'common-law remedy' which 'the common law is competent to give', and that the case is not within the exclusive jurisdiction in admiralty conferred on the federal courts by the Judiciary Act and hence was properly tried in the state court. Cf. Knapp, Stout & Co. Company v. McCaffrey, 177 U.S. 638, 20 S.Ct. 824, 44 L.Ed. 921; The Hamilton, 207 U.S. 398, 404, 28 S.Ct. 133, 134, 52 L.Ed. 264; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 276, 68 L.Ed. 582. We granted certiorari, 316 U.S. 643, 62 S.Ct. 1036, 86 L.Ed. 1728, the question being of importance in defining the jurisdiction of state courts in relation to the admiralty jurisdiction.

Only a single issue is presented by the record and briefs whether the state is precluded by the Constitution and laws of the United States from entertaining the present suit. It is not questioned that the state has authority to regulate fishing in its navigable waters, Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159; Lawton v. Steele, 152 U.S. 133, 139, 14 S.Ct. 499, 501, 38 L.Ed. 385; Lee v. New Jersey, 207 U.S. 67, 28 S.Ct. 22, 52 L.Ed. 106; Skiriotes v. Florida, 313 U.S. 69, 75, 61 S.Ct. 924, 928, 85 L.Ed. 1193; and it is not denied that seizure there of a net appurtenant to a fishing vessel is cognizable in admiralty. But petitioners insist that the present proceeding is not one which can be entertained by a state court since the judgment in rem for forfeiture of the net is not a common law remedy which the common law is competent to give, and that the case is therefore not within the statutory exception to the exclusive admiralty jurisdiction of the federal courts. In this posture of the case, and in the view we take, we find it necessary to consider only this contention.

Section 371 (Third) of 28 U.S.C., 28 U.S.C.A. § 371(3), derived from § 9 of the Judiciary Act of 1789, confers exclusive jurisdiction on the federal courts 'of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it * *  * .' A characteristic feature of the maritime law is its use of the procedure in rem derived from the civil law, by which a libellant may proceed against the vessel, naming her as a defendant and seeking a judgment subjecting the vessel, and hence the interests of all persons in her, to the satisfaction of the asserted claim. Suits in rem against a vessel in cases of maritime tort and for the enforcement of maritime liens are familiar examples of a procedure by which a judgment in rem is sought, 'good against all the world'.

The question whether a maritime cause of action can be prosecuted in the state courts by such a procedure was first discussed by this Court seventy-seven years after the adoption of the Constitution and the Judiciary Act, in The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, which held that a lien upon a vessel, created by state statute, could not be enforced by a proceeding in rem in the state courts. Decision was rested on the ground that exclusive jurisdiction of the suit was vested in the federal courts by the Judiciary Act, since a judgment in rem to enforce a lien is not a remedy which the common law is competent to give, a ruling which has since been consistently followed. The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451; The Belfast, 7 Wall. 624, 19 L.Ed. 266; The Glibe, 167 U.S. 606, 17 S.Ct. 930, 42 L.Ed. 296; The Robert W. Parsons, 191 U.S. 17, 36-38, 24 S.Ct. 8, 14, 15, 48 L.Ed. 73; Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 307, 308, 35 S.Ct. 596, 597, 598, 59 L.Ed. 966. Eleven years earlier this Court in Smith v. Maryland, 18 How. 71, 15 L.Ed. 269, without discussion of the point now at issue, had sustained the seizure and forfeiture of a vessel in a state court proceeding in rem, all pursuant to state statutes, for violation of a Maryland fishing law within the navigable waters of the state. The Court declared that the statute, which prescribed the procedure in rem in the state court, conflicted 'neither with the admiralty jurisdiction of any court of the United States conferred by congress, nor with any law of congress whatever'. 18 How. at page 76, 15 L.Ed. 269. The authority of that decision has never been questioned by this Court.

The common law as it was received in the United States at the time of the adoption of the Constitution did not afford a remedy in rem in suits between private persons. Hence the adoption of the saving clause in the Judiciary Act, as this Court has held in the cases already cited, did not withdraw from the exclusive jurisdiction of admiralty that class of cases in which private suitors sought to enforce their claims by the seizure of a vessel in proceedings in rem. But to the generalization that a judgment in rem was not a common law remedy there is an important exception. Forfeiture to the Crown of the offending object, because it had been used in violation of law, by a procedure in rem was a practice familiar not only to the English admiralty courts but to the Court of Exchequer. The Exchequer gave such a remedy for the forfeiture of articles seized on land for the violation of law. And, concurrently with the admiralty, it entertained true proceedings in rem for the forfeiture of vessels for violations on navigable waters. Such suits in the Exchequer were begun on information and were against the vessel or article to be condemned. Under the provisions of many statutes the suit might be brought by an informer qui tam, who was permitted to share in the proceeds of the forfeited article; the judgment was of forfeiture and the forfeited article was ordered to be sold. This was the established procedure certainly as early as the latter part of the seventeenth century. Proceedings in rem, closely paralleling those in the Exchequer, were also entertained by justices of the peace in many forfeiture cases arising under the customs laws (see Hoon, The Organization of the English Customs System, 1696-1786, pp. 277, 280-83), and the Act of 8 Geo. I, c. 18, § 16, placed within that jurisdiction the condemnation of vessels up to fifteen tons charged with smuggling.

While the English Acts of Navigation and Trade and numerous other forfeiture statutes conferred jurisdiction on all the English common law courts of record to entertain suits for forfeiture, nevertheless suitors having ready access to the convenient procedure of exchequer or admiralty in qui tam actions seem to have had little occasion to resort to the King's Bench or Common Pleas. In the occasional reported forfeiture cases brought in King's Bench, the English reports give us little light on the procedure followed or the precise from of judgment entered. In one case, Roberts v. Withered, 5 Mod. 193, 12 Mod. 92, the court seems to have adapted the common law action of detinue to forfeiture cases by resort to the fiction that bringing the action was the equivalent of a seizure which vested the property in the Crown so that a suit in detinue or replevin in personam to gain possession would lie. See Stephen, Pleading (3rd Am.Ed.) pp. 47, 52, 69, 74; Ames, Lectures on Legal History, pp. 64, 71. Cf. Wilkins v. Despard, 5 Term.Rep. 112.

Separate courts exercising the jurisdiction of the Court of Exchequer were never established in the American Colonies. Instead, that jurisdiction was absorbed by the common law courts which entertained suits for the forfeiture of property under English or local statutes authorizing its condemnation. Long before the adoption of the Constitution the common law courts in the Colonies-and later in the states during the period of Confederation-were exercising jurisdiction in rem in the enforcement of forfeiture statutes. Like the Exchequer, in cases of seizure on navigable waters they exercised a jurisdiction concurrently with the courts of admiralty. But the vice-admiralty courts in the Colonies did not begin to function with any real continuity until about 1700 or shortly after-

tablished in 1698. Id., p. 379; Chitwood, Justice in Colonial Virginia, pp. 71-73.

Maryland: A commission for a special court of admiralty to try forfeiture cases under the Navigation Acts for a limited period of time is to be found as early as 1684, 17 Archives of Maryland 360-62, (cf. 20 Id. 72, 75, 165), some admiralty jurisdiction having previously been exercised by the Provincial Court, 49 Archives xv, xxi-xxiii. But forfeiture cases were tried generally at courts of oyer and terminer, acting with a jury. See Andrews, Vice-Admiralty Courts in the Colonies, supra, p. 8, n. 2; 57 Archives lvii; Morriss, Colonial Trade of Maryland 1689-1715, pp. 121-22; case of The John, 1687, 8 Archives 9; The Providence, 1692, 13 Id. 320, 327 (see also Edward Randolph, vol. 5, p. 139); The Ann of New Castle, 1692, 8 Archives 445-47; The Margaret, 1692, 8 Id. 489-91, and again in 1694, 20 Id. 42-43, 65, 142, 184. The Ann of Maryland was acquitted at a special court of oyer and terminer in 1694; she was tried before the Provincial Court later the same year and acquitted by the jury; the judgment was reversed on appeal in May 1695; upon a second trial in the Provincial Court on a new information the jury again acquitted her in August 1695, but the proceedings on the second appeal are incomplete. Proceedings of the Maryland Court of Appeals 1695-1729 (Ed. Bond, 1933), pp. xlvii-xlviii, 7-12, 22-24, 647-53; 20 Archives 64, 128 30, 155, 181, 188, 243-44, 438-45, 461; Edward Randolph, vol. 5, p. 139. The Anna Helena was acquitted by a jury in the Provincial Court, 1694, 20 Archives 134, 180-81, 383-85. See also the full report of Blackiston qui tam v. Carroll, 1692, in Proc.Md.Ct. of Ap., pp. 29-41, where the judgment upon a jury's verdict condemning some casks of beer in the court of oyer and terminer (p. 34) was reversed on appeal (p. 40). Compare The Charles, 1696, 23 Archives 3.

Massachusetts: Like the New York Mayor's Court, the Massachusetts Court of Assistants was invested with admiralty jurisdiction and it was authorized to dispense with jury trial in such cases. See Crump, Colonial Admiralty Jurisdiction in the Seventeenth Century, ch. 3; Noble, Admiralty Jurisdiction in Massachusetts, 8 Publ. Colonial Society of Mass., 150, 154-57; Davis History of the Judiciary of Massachusetts, p. 75; Argument of counsel in Insurance Co. v. Dunham, 11 Wall. 1, 8, 9, 20 L.Ed. 90. Forfeiture cases under the Navigation Acts were, howjurisdiction to proceed in rem in cases of forfeiture and condemnation. The trial records have not yet been made available for all the Colonies, and in some instances perhaps can never be. But there is no reason to suppose that

Indies, 1681-1685, Nos. 868-70; Edward Randolph, vol. 3, pp. 256 58. The Hopewell was acquitted by a jury in the court of common pleas in 1699; the cargo of The Speedwell was condemned by a jury in the same court in 1701, but the superior court reversed the judgment. See Andrews, Vice-Admiralty Courts in the Colonies, supra, pp. 10, n. 1, 49-50, and cf. p. 11, n. 1; Andrews, The Colonial Period of American History, vol. 4, p. 123; Aldrich, Admiralty Jurisdiction of New Hampshire, 3 Proc. N.H. Bar Ass'n, N.S., 31, 50-51. See also The Industry, cleared by a jury in 1679. Edward Randolph, vol. 3, pp. 84, 343.

Connecticut: The cargo of The Adventure was condemned by a jury in the county court at Hartford, 1692. See 3 Coll. of the Conn. Hist. Soc., pp. 264-66 n.

Maine: See case of The Gift of God, cleared by jury, 1680 (court not specified). Edward Randolph, vol. 3, pp. 85, 348. This ship was tried again in 1683. Id., pp. 350, 351. arising under the Navigation Acts, throughout the colonial period even after the establishment of a court of vice-admiralty. See Select Cases of the Major's Court of New York City, 1674-1784 (Ed. Morris, 1935) pp. 39-40, 566 et seq. But cases of forfeiture were also regularly prosecuted before the common law courts of the colony-in the General Quarter Sessions of the Peace in New York City during the 1680s, and after the reorganization of the judiciary in 1691, in the SupremeCourt of Judicature, which was given jurisdiction 'of all pleas, Civill Criminall, and Mixt, as fully & amply to all Intents & purposes whatsoever, as the Courts of Kings Bench, Comon Pleas, & Exchequer within their Majestyes Kingdome of England, have or ought to have', 1 Colonial Laws of New York (1894) p. 229.

The Navigation Acts did not constitute the only authority for forfeiture proceedings in the common law courts. New York's own colonial legislation shows frequent use of the forfeiture sanction, applied sometimes to vessels as well as to commodities, as a means of enforcement of provincial laws fixing customs duties, regulating or prohibiting the exportation or importation of commodities, or requiring a specified manner of marking, storing or selling. A common provision in these statutes was that the forfeitures imposed might be prosecuted in any court of record in the colony.

The records of the New York Supreme Court of Judicature contain numerous instances of forfeiture proceedings during the eighteenth century. One is Hammond qui tam v. Sloop Carolina, a prosecution in 1735 for a false customs certificate, which resulted in the discharge of the ship and her cargo for failure of proof. Later cases show more in detail how closely that court's procedure in forfeiture cases followed the essentials of the procedure in rem which had been developed in the English Exchequer. Nor did the creation of a state Court of Admiralty after the Revolution effect a withdrawal of such jurisdiction from the common law courts. Statutes enacted in New York during the period of the Confederation, like the English and local legislation which preceded them, continued to employ forfeiture as a sanction, and forfeiture proceedings continued to be brought in the Supreme Court and other common law tribunals. The Act of April 11, 1787, 2 Laws of New York 509, 517, imposing import duties, provided that 'all ships and vessels, goods and merchandize which shall become forfeited by virtue of this act, shall be prosecuted by the collector, or officer or other person who shall seize the same, by information in the court of admiralty, or in the court of exchequer, or in any mayors court or court of common pleas in this State, in order to condemnation thereof'. There was provision for proclamations to be made 'in the accustomed manner', with detailed specification of the methods of making an appraisal and proceeding to judgment, and a further provision (p. 518) leaving it to the discretion of the collector of the port of New York or the attorney general 'to direct in which of the courts aforesaid any information shall be brought touching such forfeiture'.

In Pennsylvania we have a record of a similar exercise of jurisdiction in 1787 by the Philadelphia Court of Common Pleas in Phile qui tam v. The Ship Anna, 1 Dall. 197, 1 L.Ed. 98, where the jury condemned the ship.

Examination of the legislative history of the Judiciary Act of 1789 does not disclose precisely what its framers had in mind when in § 9 they used the phrase 'common law remedy'. But it is unlikely that, in selecting this phrase as the means of marking the boundary of the jurisdiction of state courts over matters which might otherwise be within the exclusive jurisdiction of admiralty, the draftsmen of § 9 intended to withdraw from the state courts a jurisdiction and remedy in forfeiture cases which had been so generally applied by non-admiralty courts both in England and America, and which had become a recognized part of the common law system as developed in England and received in this country long before the American Revolution. Nor can we accept the suggestion that Congress, in this use of the phrase 'common law remedy', was harking back some hundreds of years to a period before the Exchequer had taken its place as one of the three great courts administering the common law, and was likewise disregarding the experience of the common law courts in America with which it was familiar-all without any indication of such a purpose. Considerations of practical convenience in the conduct of forfeiture proceedings for violations of local statutes occurring on state waters, as well as the contemporary and later history of the exercise of the admiralty jurisdiction, indicate that there was no purpose to limit such proceedings to the exclusive jurisdiction of the admiralty.

Shortly after the adoption of the Constitution, state legislation was enacted regulating state tidal waters and authorizing forfeiture in the state courts of fish nets and vessels illegally used in fishing there. Such a statute was considered in 1823 in Corfield v. Coryell, Fed.Cas.No.3,230, 4 Wash.C.C. 371, (cited in Smith v. Maryland, supra, 18 How. at page 75, 15 L.Ed. 269), where a New Jersey state court forfeiture of a vessel under a statute regulating the Delaware Bay was upheld as constitutional by Justice Washington, without question of the state court's jurisdiction because of the in rem nature of the proceeding. No suggestion is to be found in that case or elsewhere that the Judiciary Act struck down the large body of state legislation, enacted shortly after 1789, which provided for the forfeiture in state courts of vessels or nets seized in navigable waters of a state for violating state fishing laws. And such legislation has become rooted in the law enforcement programs of about half the states, without intimation from this or any other court that the Judiciary Act prohibited it. See Boggs v. Commonwealth, 76 Va. 989, 993, 996; Dize v. Lloyd, C.C., 36 F. 651, 652, 653; Johnson v. Loper, 46 N.J.L. 321; Bradford v. De Luca, 90 N.J.L. 434, 103 A. 692; Doolan v. The Greyhound, 79 Conn. 697, 66 A. 511; Ely v. Bugbee, 90 Conn. 584, 98 A. 121, L.R.A.1916F, 910; State v. Umaki, 103 Wash. 232, 174 P. 447; State v. Mavrikas, 148 Wash. 651, 269 P. 805; Osborn v. Charlevoix Circuit Judge, 114 Mich. 655, 663, 666, 72 N.W. 982.

It is noteworthy that ,Blackstone's Commentaries, more read in America before the Revolution than any other law book, referred to the information in rem in the Court of Exchequer as the procedure by which forfeitures were inflicted for violation of Acts of Parliament. Bk. III, p. 262. And Kent, in his Commentaries, pointed out that 'seizures, in England, for violation of the laws of revenue, trade or navigation, were tried by a jury in the Court of Exchequer, according to the course of the common law; and though a proceeding be in rem, it is not necessarily a proceeding or cause in the admiralty' (12th Ed., Vol. 1, p. 374). He declared that, within the meaning of § 9 of the Judiciary Act, the common law was competent to give such a remedy 'because, under the vigorous system of the English law, such prosecutions in rem are in the Exchequer, according to the course of the common law' (p. 376).

Upon the adoption of the Constitution the national government took over the regulation of trade, navigation and customs duties which had been prolific sources of forfeiture proceedings in the state courts. This Court in suits brought in admiralty sustained the admiralty jurisdiction over forfeitures prescribed by Congress for the violation of federal revenue and other laws where the seizure had occurred on navigable waters. United States v. La Vengeance, 3 Dall. 297, 1 L.Ed. 610; United States v. The Schooner Sally, 2 Cranch 406, 2 L.Ed. 320; United States v. The Schooner Betsey and Charlotte, 4 Cranch 443, 2 L.Ed. 673; Whelan v. United States, 7 Cranch 112, 3 L.Ed. 286; The Samuel, 1 Wheat. 9, 4 L.Ed. 23. Those decisions held that when the seizure occurred on navigable waters the cause was maritime and hence triable without a jury in the federal courts. But they obviously did not determine, and there was no occasion to determine, whether forfeiture proceedings belonged in the category of maritime causes that might also be tried in state courts because, within the meaning of the saving clause, the common law was competent to give the remedy.

The Court has never held or said that the admiralty jurisdiction in a forfeiture case is exclusive, and it has repeatedly declared that, in cases of forfeiture of articles seized on land for violation of federal statutes, the district courts proceed as courts of common law according to the course of the Exchequer on informations in rem with trial by jury. The Sarah, 8 Wheat. 391, 396, note (a), 5 L.Ed. 644; Four Hundred and Forty-Three Cans of Frozen Egg Product v. United States, 226 U.S. 172, 33 S.Ct. 50, 57 L.Ed. 174, and cases cited. In United States v. 422 Casks of Wine, 1 Pet. 547, 7 L.Ed. 257, Justice Story defined such an action as a libel or information in rem on the Exchequer side of the court. And see Chief Justice Marshall's reference, in The Schooner Hoppet v. United States, 7 Cranch 389, 393, 3 L.Ed. 380, to 'proceedings in Courts of common law, either against the person or the thing for penalties or forfeitures'. In all this we perceive a common understanding of judges, lawyers and text writers, both before and after the adoption of the Constitution of the common law nature of the procedure and judgment in rem in forfeiture cases and of its use in such proceedings in the Exchequer and in the American common law courts.

We conclude that the common law as received in this country at the time of the adoption of the Constitution gave a remedy in rem in cases of forfeiture, and that it is a 'common law remedy' and one which 'the common law is competent to give' within the meaning of § 9 of the Judiciary Act of 1789. By that Act the states were left free to provide such a remedy in forfeiture cases where the articles are seized upon navigable waters of the state for violation of state law. It follows that Smith v. Maryland, supra, was rightly decided and is not in conflict with The Moses Taylor, supra, and cases following it, and that the judgment of the Supreme Court of California should be affirmed.

Mr. Justice BLACK, dissenting.

If this case involved only a fishnet, I should be inclined to acquiesce in the holding of the Court. Indeed, we have held that a state may seize and condemn a fishnet of trifling value without following the formal procedure of court action at all. Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385. But the principle laid down here involves far more than a fishnet, for under it state courts are authorized through in rem proceedings to seize and condemn, for violation of local law, any equipment or vessel employed in maritime activity. Today's in rem action is against a fishnet used in patently illegal fashion; tomorrow's may be an action against a tramp-steamer or ocean liner which violates a harbor regulation or otherwise offends against the police regulations of a state or municipality. Persons guilty of violating state laws affecting maritime activity may be prosecuted by in personam actions in state courts, and the admiralty courts themselves can helpfully enforce state laws through in rem proceedings. I do not believe, however, that the Judiciary Act permits states, through state common law courts which cannot reasonably be expected to have knowledge of admiralty law and practice, to give permanent halt to any portion of the maritime trade and commerce of the nation by bringing in rem proceedings against ships.

The Judiciary Act of 1789 places in the federal admiralty courts exclusive jurisdiction over admiralty cases except where the common law provides an equivalent remedy. It is conceded that as a general proposition the common law courts have no in rem remedy in naritime cases. However, the Court holds squarely, for the first time in its history, that there is an exception to this rule which permits states to bring in rem forfeiture proceedings in common law courts. The Court brushes aside as mere generalizations the many cases hereafter considered which declare that no equivalent of an admiralty in rem proceeding may be brought at common law. Today's holding is rested principally on the English and colonial practice prior to 1789 and on one case in this Court. I disagree, believing that the English practice is irrelevant, that the colonial law was not in accord with the English practice, and that a long series of cases since 1789 have clearly considered the proposition put by the Court, and have given the Judiciary Act a meaning squarely opposite to that now announced.

The English Exchequer practice on which the Court appears to rely so heavily seems to me to be irrelevant because it was not in conformity with our own early American development. The colonists, of course, did not establish admiralty courts the moment they stepped from the vessels which brought them to the New World, and for a substantial portion of the seventeenth century maritime forfeitures were collected in the fashion of the English courts. However, toward the end of that century, it became acutely apparent in England that colonial juries would not enforce the navigation laws as England desired to see them enforced. This was particularly true in Massachusetts Bay and in other colonies where commercial interests dominated. Hence in 1697, Vice Commissioners of Admiralty were established throughout the colonies to enforce the navigation laws of England without jury procedure. It was conceded by the earliest writers that the Vice Admiralty courts in the colonies 'obtained in a singular manner a jurisdiction in revenue causes, totally foreign to the original jurisdiction of the admiralty, and unknown to it.' Yet, with the great adaptability of the early courts, this jurisdiction in the colonies was fitted into the judicial system so as to allow appeal, as in purely admiralty cases, to the High Court of Admiralty in England. The Vrouw Dorothea, 1754, reported in The Fabius, 2 C.Rob. 246.

The same conflict which took place in England between Coke as champion of the common law jurisdiction, and the admiralty courts also was carried on in the colonies. Cf. Talbot v. Commanders and Owners of The Three Brigs, 1 Dall. 95, 1 L.Ed. 52. As a result there was, throughout the eighteenth century, marked confusion as to the proper jurisdiction of each in forfeiture cases. For example, in 1702, the Board of Trade asked the advice of the Attorney General as to whether all forfeitures in connection with colonial trading matters under the Navigation Act of 1696 were to be prosecuted exclusively in courts of admiralty, and the Attorney General replied in the affirmative. On the other hand it is clear, as the cases cited by the Court show, that this view was not always maintained. One can only conclude that there was in 1789 no completely clear resolution of the conflict between admiralty and common law courts in forfeiture cases, though the cases hereafter considered indicate that the admiralty courts were winning the dominant role. At the same time it must be concluded by the proponents of the Court's view that American practice had come to be markedly different from the English.

It is settled beyond question that the general admiralty law of the United States in 1789 was the law as developed in the colonies and not the law as it came from England. Prior to the middle of the nineteenth century a contrary view was often pressed upon the Court and was as often rejected with adequate reference to the differences between the two. The early American courts therefore were faced with the task of determining whether forfeiture actions should be brought exclusively in the common law courts, exclusively in the admiralty courts, or concurrently in either. In repeated decisions relating to forfeitures under federal laws, this Court, within a few years of the adoption of the Judiciary Act of 1789, held that forfeiture jurisdiction was exclusively in the admiralty courts.

The leading case for this proposition is La Vengeance, 1796, 3 Dall. 297, 300, 1 L.Ed. 610. In that case the United States brought an action of forfeiture for exporting arms and ammunition. The United States contended in this Court that the action was criminal in its nature and that in any case it was not a civil suit within the admiralty and maritime jurisdiction and therefore should have been tried before a jury as at common law. The Court held that the action was clearly civil since it was an in rem proceeding and that it was subject to the maritime jurisdiction because the basic transportation activity involved was 'entirely a water transaction.' There is no suggestion whatever, in the brief opinion of the Court, of the possibility of a concurrent common law jurisdiction. This rule was followed in The Sally, 2 Cranch 406, 2 L.Ed. 320, where the government again contended that it was entitled to try forfeiture actions before a jury since the 'cause was of common law, and not of admiralty and maritime jurisdiction,' and the same result was reached in The Samuel, 1 Wheat. 9, 4 L.Ed. 23.

One of the most elaborate arguments ever made in this Court on the issue now before us was presented in 1808 in United States v. The Betsey and Charlotte, 4 Cranch 443, 2 L.Ed. 673. That case arose on an action for forfeiture. Counsel for the claimant, who had also been the losing counsel in La Vengeance, contended that the action should have been tried as at common law. He strongly emphasized the Exchequer practice in England and said, 'There is nothing in the course of proceedings in rem which requires that they should be in a court of admiralty.' 4 Cranch 447, 2 L.Ed. 673. The argument he made was almost identical with that which the Court adopts in the instant case. He emphasized particularly that 'We have seen that in all cases of seizure for breaches of the laws of revenue, trade, or navigation, the common law is competent to give a remedy; and consequently this suiter is entitled to it.' 4 Cranch 449, 2 L.Ed. 673.

The Court rejected entirely the argument of the counsel, held The Betsey and Charlotte indistinguishable from La Vengeance, and interpreted the Judiciary Act to mean that Congress had placed forfeitures 'among the civil causes of admiralty and maritime jurisdiction.' La Vengeance was held conclusive of the proposition that in such cases there could be no right to trial by jury-in other words that under the American law as repeatedly declared between 1796 and 1808, the common law was not, within the meaning of the Judiciary Act, competent to give a remedy in forfeiture cases. When the question of a right to a common law trial in a forfeiture case was certified to the Supreme Court in 1812, the Court found it unnecessary to hear any argument and counsel became so convinced that the authorities were conclusive that he did not press the case.

These cases were reviewed many times in this Court and elsewhere, and cited for the proposition that in the United States, in noteworthy distinction from England, the admiralty forfeiture jurisdiction was exclusive. This culminated in a holding in 1868, The Eagle, 8 Wall. 15, 25, 26, 19 L.Ed. 365, that the words in the 1789 Act giving admiralty jurisdiction in forfeiture cases were superfluous and of no effect since 'the general jurisdiction in admiralty exists without regard to it.'

Against the background of these cases we may consider Smith v. Maryland, 18 How. 71, 15 L.Ed. 269, which the Court cites for the existence of the forfeiture exception to the general rule as to exclusive admiralty jurisdiction of in rem proceedings. In that case the power of the state to protect a fishery by making it unlawful to catch oysters in a certain manner and to inflict a penalty of forfeiture upon a vessel employed in violation of the law was upheld. The entire argument was directed at considerations foreign to the of this case and the Judiciary Act was not even mentioned; the opinion of the Court deals almost exclusively with the question of whether the state statute was in conflict with the commerce clause of the Constitution. The Court held in passing that the mere existence of federal admiralty jurisdiction does not per se bar the states from legislating for the protection of its fisheries, a proposition which no one can doubt. It is apparent that the issue now before us, interpretation of the Judiciary Act, was not presented to the Court nor decided by it in the Smith case. The Court in the instant case treats Smith v. Maryland as a holding for a proposition which can flow from it only by accident.

If Smith v. Maryland accidentally interpreted the Judiciary Act, it did so in a manner in conflict not only with all the cases decided before it in which the issue was squarely considered but with the great number of cases decided since. In The Moses Taylor, 1866, 4 Wall. 411, 431, 18 L.Ed. 397, our leading case, the Court declared that 'a proceeding in rem, as used in the admiralty courts, is not a remedy afforded by the common law.' The considerations of policy which underlay this interpretation of the Judiciary Act were attributed to Justice Story: "The admiralty jurisdiction,' says Mr. Justice Story, 'naturally connects itself, on the one hand, with our diplomatic relations and the duties to foreign nations and their subjects; and, on the other hand, with the great interests of navigation and commerce, foreign and domestic. There is, then, a peculiar wisdom in giving to the national government a jurisdiction of this sort which cannot be yielded, except for the general good, and which multiplies the securities for the public peace abroad, and gives to commerce and navigation the most encouraging support at home." The Moses Taylor, supra, 4 Wall. 430, 431, 18 L.Ed. 397.

The language of The Moses Taylor has been repeated so often that I should have thought it to be a truism of the law. In The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266, 'There is no form of action at common law which, when compared with the proceeding in rem in the admiralty, can be regarded as a concurrent remedy.' In Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 306, 35 S.Ct. 596, 597, 59 L.Ed. 966, 'The proceeding in rem * *  * is within the exclusive jurisdiction of admiralty.' In Knapp, Stout & Co. Company v. McCaffrey, 177 U.S. 638, 648, 20 S.Ct. 824, 829, 44 L.Ed. 921: 'The true distinction between such proceedings as are and such as are not invasions of the exclusive admiralty jurisdiction is this: If the cause of action be one cognizable in admiralty, and the suit be in rem against the thing itself * *  * the proceeding is essentially one in admiralty.' In Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582: 'A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction.'

Cases prior to Smith v. Maryland explicitly held that forfeitures were not to be enforced by an in rem action at common law. Cases since Smith v. Maryland have repeatedly declared that admiralty's in rem jurisdiction is exclusive of state court action. I therefore see no reason for placing any reliance on the Smith case which only consequentially affected an issue to which it gave no consideration at all; and for purposes of settling a jurisdictional issue such as this, the English practice, which need give no consideration to the complexities of dual sovereignty and diverse state laws, seems peculiarly inapplicable. By permitting maritime suits against persons in state courts and by denying the state courts jurisdiction of suits against vessels, the right to trial by jury is adequately preserved at the same time that the policy of ultimate exclusive national regulation of ships in commerce is saved.