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. 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,1 and the admiralty courts themselves can helpfully enforce state laws through in rem proceedings.2 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.3
*155The 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 maritime 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 Bay4 and in other colonies where commercial *156interests 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.” 5 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. Robinson 246.6
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. The Three Brigs, 1 Dall. 95. 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.7 On the other hand it is clear, as the cases *157cited 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 conceded 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.8 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, 3 Dall. 297 (1796). 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 *158it 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, 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. 9.9
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. Schooner Betsey and Charlotte, 4 Cranch 443. 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.” Id. 447. 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 law of revenue, trade or navigation, the common law is competent to give a remedy; and consequently this suitor is entitled to it.” Id. 449.
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 *159admiralty 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.10 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.* 11
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.12 This cul*160minated in a holding in 1868, The Eagle, 8 Wall. 15, 25, 26, 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, 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 issue 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 state 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.
*161If 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, 4 Wall. 411, 431 (1866), 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, 430-431.
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: “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 Co., 237 U. S. 303, 306: “The proceeding in rem ... is within the exclusive jurisdiction of admiralty.” In Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 648: “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.” *162In Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 124: “A State may not provide a remedy in rem for any cause of action within the admiralty jurisdiction.”13
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.
For a fact situation analogous to the instant case in which the state protected its fishing grounds through an in personam action, see Manchester v. Massachusetts, 139 U. S. 240. See also, as cases concerning the state criminal jurisdiction in the maritime field, United States v. Bevans, 3 Wheat. 336, and Wildenhus’s Case, 120 U. S. 1.
See, e. g., as eases on liens in wrongful death actions, The J. E. Rumbell, 148 U. S. 1, and The Hamilton, 207 U. S. 398.
It is particularly important in time of war, when every vessel is in constant use, that in rem proceedings be strictly controlled. This is partially done by the Suits in Admiralty Act, 41 Stat. 525, for a brief discussion of which see Clyde-Mallory Lines v. The Eglantine, 317 U. S. 395.
“But the laws of navigation were nowhere disobeyed and contemned so openly as in New England. The people of Massachusetts Bay were from the first disposed to act, as if independent of the mother-country; *156and having a governor and magistrates of their own choice, it was very difficult to enforce any regulations which came from the English parliament, and were adverse to their colonial interests.” Reeves, The Law of Shipping, 56 (1807).
2 Brown, Civil and Admiralty Law, 2d ed., 491 (1802).
For an account of the development of admiralty jurisdiction in the colonies, see 4 Andrews,. The Colonial Period of American History, Chap. 8; Root, Relations of Pennsylvania with the British Government, 1696-1765, Chap. 4; the argument made by Daniel Webster as counsel in United States v. Bevans, 3 Wheat. 336, 379, et seq.; the Reporter’s note to United States v. Wiltberger, 5 Wheat. 76, 113.
2 Chalmers, Opinions of Eminent Lawyers, 187 (1814); Andrews, supra, 169; Webster, supra, 3 Wheat, at 383.
See e. g. Manro v. Almeida, 10 Wheat. 473, 489; Waring v. Clarke, 5 How. 441, 454; New Jersey Steam Navigation Co. v. Merchants’ Bank. 6 How. 344, 389; and see The Genesee Chief. 12 How. 443.
In The Samuel, the claimant contended that since the action was begun by an information rather than a libel, the case was not subject to the admiralty jurisdiction. The Court held that “Where the cause is of admiralty jurisdiction, and the proceeding is by information, the suit is not withdrawn, by the nature of the remedy, from the jurisdiction to which it otherwise belongs!’ p. 14.
Justice Chase in the course of argument commented from the bench that he thought La Vengeance a well considered case. His comment leaves no doubt that he considered the admiralty jurisdiction for forfeiture exclusive: “The reason of the legislature for putting seizures of this kind on the admiralty side of the court was the great danger to the revenue, if such cases should be left to the caprice of juries.” p. 446.
Whelan v. United States, 7 Cranch 112.
“This Court decided, as early as 1805 (2 Cranch 405), in the case of the Sally, that the forfeiture of a vessel, under the Act of Congress against the slave-trade, was a case of admiralty and maritime jurisdiction, and not of common law. And so it had done before, in the case of La Vengeance.” Waring v. Clarke, 5 How. 441, 458. “All the cases thus arising under the revenue and navigation laws were held to be civil causes of admiralty and maritime jurisdiction within the words of the Constitution, and, as such, were properly assigned to the District Court, in the Act of 1789, as part of its admiralty jurisdiction.” New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344, 389. And see to the same effect The Margaret, 9 Wheat. 421, 427; The Sarah, 8 Wheat. 391, 394; The Belfast, 7 Wall. 624, 638. For acceptance of this view and a criticism of the result see the dissenting opinion in Jackson v. The Magnolia, 20 How. 296, 309. It is worthy of note that this opinion by Mr. Justice Daniel makes an argument very similar to that now made by the Court and relies as does the *160Court on a passage from Kent. The majority of the Court did not accept Daniel’s position. Kent himself acknowledged that the view he held was not the law as declared in this Court but he -felt that La Vengeance was not “sufficiently considered.” 1 Kent’s Commentaries, 12th ed., 376. In De Lovio v. Boit, Fed. Cas. No. 3,776, 2 Gallis. 398, 474, Justice Story sitting as a Circuit Judge said: “It has . . . been repeatedly and solemnly held by the Supreme Court, that all seizures under laws of impost, navigation and trade, ... are causes of admiralty and maritime jurisdiction.”
Additional statements to the same effect are: Hine v. Trevor, 4 Wall. 555, 571; Leon v. Galceran, 11 Wall. 185, 188; Steamboat Co. v. Chase, 16 Wall. 522, 530; The Lottawanna, 20 Wall. 201, 218; Edwards v. Elliott, 21 Wall. 532, 556; Norton v. Switzer, 93 U. S. 355, 365; Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 397; The J. E. Rumbell, 148 U. S. 1, 12; Moran v. Sturges, 154 U. S. 256, 276; The Glide, 167 U. S. 606, 615; The Robert W. Parsons, 191 U. S. 17, 37; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372,3 83; Panama R. Co. v. Vasquez, 271 U. S. 557, 561.