courts had been accustomed to adhere strictly to the English mode of pleading, in which the place is always averred to be within the ebb and flow of the tide, the definition in the Act of 1789, which is so evidently the correct one, would have been adopted by the courts, and the difficulty which has now arisen would not have taken place.

"This legislative definition, given at this early period of the government, is certainly entitled to great consideration. The same definition is in effect again recognised by Congress, by the passage of the act which we are now considering. We have therefore the opinion of the legislative department of the government, twice deliberately expressed, upon the subject. These opinions of course are not binding on the judicial department, but they are always entitled to high respect. And in this instance we think they are founded in truth and reason; and that these laws are both constitutional, and ought therefore to be carried into execution. The jurisdiction under both laws is confined to vessels enrolled and licensed for the coasting trade; and the Act of 1845 extends only to such vessels when they are engaged in commerce between different states or territories. It does not apply to vessels engaged in the domestic commerce of a state; nor to vessels or boats not enrolled and licensed for the coasting trade under the authority of Congress. And the state courts within the limits embraced by this law, exercise a concurrent jurisdiction in all cases arising within their respective territories, as broadly and independently as it is exercised by the old thirteen states (whose rivers are tidewaters), and where the admiralty jurisdiction has been in full force ever since the adoption of the Constitution.

"The case of the Thomas Jefferson did not decide any question of property, or lay down any rule by which the right of property should be determined. If it had, we should have felt ourselves bound to follow it, notwithstanding the opinion we have expressed. For every one would suppose, that after the decision of this court, in a matter of that kind, he might safely enter into contracts, upon the faith that

rights thus acquired would not be disturbed. In such a case, stare decisis is the safe and established rule of judicial policy, and should always be adhered to. For if the law, as pronounced by the court, ought not to stand, it is in the power of the legislature to amend it, without impairing rights acquired under it. But the decision referred to has no relation to rights of property. It was a question of jurisdiction only, and the judgment we now give can disturb no rights of property, nor interfere with any contracts heretofore made. The rights of property and of parties will be the same by whatever court the law is administered. And as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it.

"The principal objection made to the admiralty jurisdiction is the want of the trial by jury. And it is this feature in the admiralty practice which made it the object of so much jealousy in England in the time of Lord Coke, and enabled him to succeed in his efforts to restrict it to very narrow limits. But experience in England has proved that a wider range of jurisdiction was necessary for the benefit of commerce and navigation; and that they needed courts acting more promptly than courts of common law, and not entangled with the niceties and strictness of common-law pleadings and proceedings. And during the reign of the present queen, the admiralty jurisdiction has been extended to maritime services and contracts, and to torts in navigable waters, although the place where the service was performed, or the contract made, or the tort committed, was within the body of a county, and within the jurisdiction of the courts of common law. A concurrent jurisdiction is reserved to the last-mentioned courts, if the party complaining chooses to select that mode of proceeding. But in the new and extended jurisdiction of the English admiralty, the old objection remains, and neither party is entitled to a trial by jury. The court in its discretion may send the question of fact to a jury,

if it thinks proper to do so. But the party cannot demand it as a matter of right. Yet the English people have certainly lost nothing of their attachment to the trial by jury since the days of Lord Coke. And this recent and great enlargement of the admiralty power is strong proof that the want of it has been felt, and that experience has shown its necessity where the interests of an extensive commerce and navigation are concerned.

"But the Act of Congress of which we are speaking is free from the objection to which the English statute is liable. Like the English statute, it saves to the party a concurrent remedy at common law in any court of the United States, or of a state, which may be competent to give it. But it goes further. It secures to the parties the trial by jury as a matter of right in the admiralty court. Either party may demand it. And it thus effectually removes the great and leading objection always heretofore made to the admiralty jurisdiction.

"The power of Congress to change the mode of proceeding in this respect in its courts of admiralty, will, we suppose, hardly be questioned. The Constitution declares that the judicial power of the United States shall extend to 'all cases of admiralty and maritime jurisdiction.' But it does not direct that the court shall proceed according to ancient and established forms, or shall adopt any other form or mode of practice. The grant defines the subjects to which the jurisdiction may be extended by Congress. But the extent of the power, as well as the mode of proceeding in which that jurisdiction is to be exercised, like the power and practice in all the other courts of the United States, are subject to the regulation of Congress, except where that power is limited by the terms of the Constitution, or by necessary implication from its language. In admiralty and maritime cases, there is no such limitation as to the mode of proceeding, and Congress may, therefore, in cases of that description, give either party a right of trial by jury, or modify the practice of the court in any other respect that it deems more conducive to

1

the administration of justice. And in the proceedings under the Act of 1845, the right to a trial by jury is undoubtedly secured to either party, if he thinks proper to demand it.

"In the case before us, no jury was required by the libellants or respondents, and the questions of fact, as well as of law, were therefore decided by the court."

§ 41. The question now arises, how this decision affects the admiralty jurisdiction over tide-waters, and what rule of determination it establishes with reference to all waters which come within the definition of public navigable waters where commerce is carried on between different states or a foreign country. Formerly, as we have seen, the locality of the admiralty jurisdiction was supposed to be confined to tidewaters. In this view of the Constitution, the test which determined whether a case was of the character of admiralty and maritime causes, was established with reference to the place where the act was done, or where the service was rendered. If the contract was one where the service, being of a maritime nature, was to be performed chiefly upon the waters admitted to be within the admiralty jurisdiction, that is to say, upon the high seas, although the voyage might have commenced or terminated out of the jurisdiction, the cause was held to belong to the jurisdiction. But the recent decision has declared that the jurisdiction embraces all public navigable waters, where inter-state or foreign commerce is carried on. What, then, will be the standard of determination as to the character of the cause, in reference to the latter description of waters, and what will it be, in reference to tide-waters?

§ 42. Following the analogy of former decisions, made under that view of the Constitution which confined the locality of the admiralty jurisdiction to tide-waters, we find that, in reference to contracts and quasi-contracts, it was the maritime nature of the service, which determined the admiralty character of the cause: that is to say, a service which

related to maritime navigation, or navigation upon the waters admitted to be in the locality of the admiralty jurisdiction, would constitute the proper subject of an admiralty and maritime cause. But it is now settled, that the locality of the admiralty jurisdiction embraces waters which are otherwise described. What, then, will be the standard which will determine the character of the cause? If we apply the former analogy, it would seem that the character of the waters where the service is performed, together with the fact that the service relates to the navigation of waters of that character—that is, to navigation between different states, or between a state and a foreign country-will decide that the cause is of admiralty jurisdiction. Public waters, where such navigation is carried on, being the place, a service that is to be of an admiralty character must be rendered substantially in that place; and if the voyage does not cover that place, that is, if it be not substantially performed between different states, or a state and a foreign country, the waters where it is performed cannot, as to that contract, be public navigable waters of the requisite character, whatever they may be as to other contracts and in other cases.

§ 43. The description of public navigable waters where inter-state or foreign commerce is carried on, of course includes the high seas, which comprehend technically all waters where the tide ebbs and flows, to high water mark. These waters remain, therefore, subject to the admiralty jurisdiction, under the recent, as well as the former, construction of the Constitution. The contiguous waters in bays, rivers, and arms of the sea, above the line of the flow of the tide, will or will not be embraced within the admiralty jurisdiction, according to their character. If they are public navigable waters, where commerce is carried on between different states, or with a foreign nation, they will be within the admiralty jurisdiction of the Constitution, and it will be competent to Congress, under the grant of that jurisdiction, to give reme