The admiralty jurisdiction of the courts of the United States
extends to cases of collision upon navigable waters although the
place of such collision may be within the body of a county of a
state, and may be above the flux and reflux of the tide.
The district courts exercise this jurisdiction over fresh water
rivers "navigable from the sea" by virtue of the Judiciary Act of
1789, and not as conferred by the act of 1845, which extends their
jurisdiction to the Great Lakes and waters "not navigable from the
sea."
This case came up on an appeal from the judgment of the district
court dismissing the libel for want of jurisdiction after the
following agreement had been filed:
"Be it remembered that on the trial of this cause, which was a
libel in admiralty, it was agreed that the question of jurisdiction
should be submitted to the court on the facts hereinafter stated,
which were admitted to be true, and if the court should be of the
opinion that the court had jurisdiction of the cause, then the
cause should be submitted to a jury for trial. But if the court
should be of opinion that it was without jurisdiction, the libel
would be dismissed, and in the event an appeal was taken to the
Supreme Court of the United States and the judgment of that Court
should reverse the judgment of this Court, then the cause should be
remanded to this Court for trial."
"The court agreed so to try the question of jurisdiction on the
facts, which are admitted to be as follows:"
"The steamboat
Wetumpka was a vessel engaged in
navigation and commerce
Page 61 U. S. 297
between the port of New Orleans, in Louisiana, and the port of
Montgomery, in Alabama, and was regularly licensed and enrolled as
a coasting vessel, and was of more than thirty tons burden. The
steamboat
Magnolia was a boat regularly licensed and
enrolled for the coasting trade, but was built for a packet boat to
be employed between Mobile, Alabama, and Montgomery, Alabama. She
was built in the western country and brought round to this state,
and has ever since been engaged in running between Mobile and
Montgomery, and has never been engaged in any other trade."
"The collision which is the subject of the libel against the
Magnolia took place between her and the
Wetumpka
on the Alabama River about two hundred miles above tidewater. The
Magnolia is a boat of over thirty tons burden. The
foregoing are the facts in which the question of jurisdiction is
submitted to the Court, together with the libel and claim, and
answer thereto."
"WATTS & DARGAN"
"
For the Magnolia and Claimants"
"HENRY C. SEMPLE"
"
For the Libellants"
MR. JUSTICE GRIER delivered the opinion of the Court.
The only question presented for our consideration on this appeal
is whether the court below had jurisdiction.
The libel purports to be in a cause of collision, civil and
maritime. It alleges that the steamboat
Wetumpka, a vessel
of three hundred tons burden, was on a voyage from New Orleans to
the City of Montgomery, in Alabama; that while ascending the
Alabama River, she was run into and sunk by the steamboat
Magnolia, which was descending the same.
The answer of the respondents, among other things, alleges
"That the collision took place far above tidewater on the
Page 61 U. S. 298
Alabama River in the County of Wilcox in the State of Alabama,
and therefore not within the jurisdiction of the district court
sitting in admiralty."
This plea was sustained by the court and the libel dismissed.
The record does not disclose the reasons on which this judgment was
based. It is presumed, therefore, to be founded on the facts stated
in the plea,
viz.:
1. That the collision was within the body of a county.
2. That it was above tidewater.
1. The Alabama River flows through the State of Alabama. It is a
great public river, navigable from the sea for many miles above the
ebb and flow of the tide. Vessels licensed for the coasting trade
and those engaged in foreign commerce pass on its waters to ports
of entry within the state. It is not, like the Mississippi, a
boundary between coterminous states. Neither is it, like the
Penobscot,
See Veazie v.
Moore, 14 How. 568, made subservient to the
internal trade of the state by artificial means and dams
constructed at its mouth, rendering it inaccessible to seagoing
vessels. It differs from the Hudson, which rises in and passes
through the State of New York, in the fact that it is navigable for
ships and vessels of the largest class far above where its waters
are affected by the tide.
Before the adoption of the present Constitution, each state, in
the exercise of its sovereign power, had its own court of
admiralty, having jurisdiction over the harbors, creeks, inlets,
and public navigable waters connected with the sea. This
jurisdiction was exercised not only over rivers, creeks, and inlets
which were boundaries to or passed through other states, but also
where they were wholly within the state. Such a distinction was
unknown, nor as it appears from the decision of this Court in the
case of
Waring v.
Clark, 5 How. 441, had these courts been driven
from the exercise of jurisdiction over torts committed on navigable
water within the body of a county, by the jealousy of the common
law courts.
When, therefore, the exercise, of admiralty and maritime
jurisdiction over its public rivers, ports, and havens, was
surrendered by each state to the government of the United States,
without an exception as to subjects or places, this Court cannot
interpolate one into the Constitution, or introduce an arbitrary
distinction which has no foundation in reason or precedent.
The objection to jurisdiction stated in the plea, "that the
collision was within the County of Wilcox, in the State of
Alabama," can therefore have no greater force or effect from the
fact alleged in the argument, that the Alabama River, so far as it
is navigable, is wholly within the boundary of the state.
Page 61 U. S. 299
It amounts only to a renewal of the old contest between courts
of common law and courts of admiralty, as to their jurisdiction
within the body of a county. This question has been finally
adjudicated in this Court, and the argument exhausted, in the case
of
Waring v. Clark. After an experience of ten years, we
have not been called on by the bar to review its principles as
founded in error, nor have we heard of any complaints by the people
of wrongs suffered on account of its supposed infringement of the
right of trial by jury. So far, therefore, as the solution of the
question now before us is affected by the fact that the tort was
committed within the body of a county, it must be considered as
finally settled by the decision in that case.
2. The second ground of objection to the jurisdiction of the
court is founded on the fact, that though the collision complained
of occurred in a great navigable river, it was on a part of that
river not affected by the flux and reflux of the tide, but "far
above it."
This objection also is one which has heretofore been considered
and decided by this Court, after full argument and much
deliberation. In the case of
The Genesee
Chief, 12 How. 444, we have decided that though in
England the flux and reflux of the tide was a sound and reasonable
test of a navigable river because on that island tidewater and
navigable water were synonymous terms, yet that
"there is certainly nothing in the ebb and flow of the tide that
makes the waters peculiarly suitable for admiralty jurisdiction,
nor anything in the absence of a tide that renders it unfit. If it
is a public navigable water on which commerce is carried on between
different states or nations, the reason for the jurisdiction is
precisely the same. And if a distinction is made on that account,
it is merely arbitrary, without any foundation in reason -- and,
indeed, contrary to it."
The case of
The Thomas
Jefferson, 10 Wheat. 428, and others, which had
hastily adopted this arbitrary and in this country false test of
navigable waters, were necessarily overruled.
Since the decision of these cases, the several district courts
have taken jurisdiction of cases of collision on the great public
navigable rivers. Some of these cases have been brought to this
Court by appeal, and in no instance has any objection been taken,
either by the counsel or the court, to the jurisdiction because the
collision was within the body of a county or above the tide.
See Fritz v. Bull,
12 How. 466;
Walsh v.
Rogers, 13 How. 283;
The
Steamboat New World, 16 How. 469;
Ure v.
Kauffman, 19 How. 56;
New
York and Virginia S.B. Co. v. Calderwood, 19 How.
245.
Page 61 U. S. 300
In our opinion, therefore, neither of the facts alleged in the
answer nor both of them taken together will constitute a sufficient
exception to the jurisdiction of the district court.
It is due however, to the learned counsel who has presented the
argument for respondent in this case to say that he has not
attempted to impugn the decision of this Court in the case of
Waring v. Clark, nor to question the sufficiency of the
reasons given in the case of
The Genesee Chief for
overruling the case of
The Thomas Jefferson; but he
contends that the case of
The Genesee Chief decided that
the act of Congress of 1845, "extending the jurisdiction of the
district court to certain cases upon the lakes," &c., was not
only constitutional, but also that it conferred a new jurisdiction
which the Court did not possess before, and consequently, as that
act was confined to the lakes and
"to vessels of twenty or more tons burden, licensed and employed
in the business of commerce and navigation between ports and places
in different states and territories,"
it cannot authorize the district courts in assuming jurisdiction
over waters and subjects not included in the act, and more
especially where the navigable portion of the river is wholly
within the boundary of a single state. It is contended also that
the case of
Fritz v. Bull, and those which follow it,
sustaining the jurisdiction of the court of admiralty over torts on
the Mississippi River, cannot be reconciled with the points decided
in the former case, as just stated, unless on the hypothesis that
the act of 1845 be construed to include the Mississippi and other
great rivers of the West; which it manifestly does not.
But it never has been asserted by this Court, either in the case
of
Fritz v. Bull or in any other case, that the admiralty
jurisdiction exercised over the great navigable rivers of the West
was claimed under the act of 1845 or by virtue of anything therein
contained.
The Constitution, in defining the powers of the courts of the
United States, extends them to "all cases of admiralty and maritime
jurisdiction." It defines how much of the judicial power shall be
exercised by the Supreme Court only, and it was left to Congress to
ordain and establish other courts and to fix the boundary and
extent of their respective jurisdictions. Congress might give any
of these courts the whole or so much of the admiralty jurisdiction
as it saw fit. It might extend their jurisdiction over all
navigable waters and all ships and vessels thereon, or over some
navigable waters and vessels of a certain description only.
Consequently, as Congress had never before 1845 conferred admiralty
jurisdiction over the Northern fresh water lakes not "navigable
from the sea," the district courts could not assume it by virtue of
this clause in the Constitution.
Page 61 U. S. 301
An act of Congress was therefore necessary to confer this
jurisdiction on those waters, and was completely within the
constitutional powers of Congress unless, by some unbending law of
nature, fresh water lakes and rivers are necessarily within the
category of those that are not "navigable," and which consequently
could not be subjected to "admiralty jurisdiction" any more than
canals or railroads.
When these states were colonies, and for a long time after the
adoption of the Constitution of the United States, the shores of
the Great Lakes of the North, above and beyond the ocean tides,
were as yet almost uninhabited except by savages. The necessities
of commerce and the progress of steam navigation had not as yet
called for the exercise of admiralty jurisdiction except on the
ocean border of the Atlantic states.
The Judiciary Act of 1789, in defining the several powers of the
courts established by it, gives to the district courts of the
United States
"exclusive original cognizance of all civil cases of admiralty
and maritime jurisdiction, including all seizures &c., when
they are made on waters which are navigable from the sea by vessels
of ten or more tons burden &c., as well as upon the high
seas."
So long as the commerce of the country was centered chiefly on
the Eastern Atlantic ports, where the fresh water rivers were
seldom navigable above tidewater, no inconvenience arose from the
adoption of the English insular test of "navigable waters." Hence
it was followed by the courts without objection or inquiry.
But this act does not confine admiralty jurisdiction to
tidewaters, and if the flux and reflux of the tide be abandoned as
an arbitrary and false test of a "navigable river," it required no
further legislation of Congress to extend it to the Mississippi,
Alabama, and other great rivers "navigable from the sea." If the
waters over which this jurisdiction is claimed be within this
category, the act makes no distinction between them. It is not
confined to rivers or waters which bound coterminous states, such
as the Mississippi and Ohio, or to rivers passing through more than
one state; nor does the act distinguish between them and rivers
which rise in and pass through one state only, and are consequently
"infra corpus comitatus." The admiralty jurisdiction
surrendered by the states to the Union had no such bounds as
exercised by themselves, and is clogged with no such conditions in
its surrender. The interpolation of such conditions by the courts
would exclude many of the ports, harbors, creeks, and inlets most
frequented by ships and commerce, but which are wholly included
within the boundaries of a state or the body of a county.
Page 61 U. S. 302
It seems to have been assumed in the argument of this case that
because the district courts had not exercised their admiralty
jurisdiction above tidewater before the decision of this Court of
the case of
The Genesee Chief, that such jurisdiction had
been exercised by them as conferred by the act of 1845. It is upon
this mistaken hypothesis that any difficulty is found in
reconciling that case with the case of
Fritz v. Bull,
which immediately followed it.
The act of 1845 was the occasion and created the necessity for
this Court to review their former decisions.
It might be considered in fact as a declaratory act reversing
the decision in the case of
The Thomas Jefferson. We could
no longer evade the question by a judicial notice of an occult tide
without ebb or flow, as in the case of
Peyroux v.
Howard, 7 Pet. 343. The Court was placed in the
position that it must either declare the act of Congress void, and
shock the common sense of the people by declaring the lakes not to
be "navigable waters," or overrule previous decisions which had
established an arbitrary distinction, which, when applied to our
continent, had no foundation in reason.
In conclusion, we repeat what we then said, that
"Courts of admiralty have been found necessary in all commercial
countries not only for the safety and convenience of commerce and a
speedy decision of controversies where delay would be ruin, but
also to administer the laws of nations in a season of war and to
determine the validity of captures and questions of prize or no
prize in a judicial proceeding. And it would be contrary to the
first principles on which this Union was formed to confine these
rights to the states bordering on the Atlantic and to the tidewater
rivers connected with it, and to deny them to the citizens who
border on the lakes and the great navigable streams of the Western
states. Certainly such was not the intent of the framers of the
Constitution, and if such be the construction finally given to it
by this Court, it must necessarily produce great public
inconvenience, and at the same time fail to accomplish one of the
great objects of the framers of the Constitution -- that is,
perfect equality in the rights and privileges of the citizens of
the different states not only in the laws of the general
government, but in the mode of administering them."
The decree of the court below dismissing the libel for want
of jurisdiction is therefore reversed, and it is ordered that the
record be remitted with directions to further proceed in the case
as to law and justice may appertain.
MR. JUSTICE McLEAN delivered a separate opinion, and MR.
JUSTICE
Page 61 U. S. 303
CATRON, MR. JUSTICE DANIEL, and MR. JUSTICE CAMPBELL, dissented.
MR. JUSTICE CATRON concurred with MR. JUSTICE CAMPBELL in the
opinion delivered by him.
MR. JUSTICE McLEAN:
I agree to the decision in this case, but as I wish to be on one
or two points somewhat more explicit than the opinion of the Court,
I will concisely state my views.
The Constitution declares that the judicial power shall extend
"to all cases of admiralty and maritime jurisdiction." The
Judiciary Act of 1789 provides
"That the district courts shall have exclusive original
cognizance of all civil cases of admiralty and maritime
jurisdiction."
The Act of the 25th February, 1845, is entitled "An act to
extend the jurisdiction of the district courts to certain cases
upon the lakes and navigable waters connecting with the same." This
act was considered by Congress as extending the jurisdiction of the
district court, and it was so, very properly, treated by the Court
in the case of
The Genesee
Chief, 12 How. 444.
In the opinion it was said this act was not passed under the
commercial power, but under the admiralty and maritime jurisdiction
given in the Constitution. No terms could be more complete than
those used in the Constitution to confer this jurisdiction. In all
cases of admiralty and maritime jurisdiction, such suits may be
brought in the district court.
This jurisdiction was limited in England to the ebb and flow of
the tide, as their rivers were navigable only as far as the tide
flowed. And as in this country, the rivers falling into the
Atlantic were not navigable above tidewater, the same rule was
applied. And when the question of jurisdiction was first raised in
regard to our Western rivers, the same rule was adopted, when there
was no reason for its restriction to tidewater, as in the rivers of
the Atlantic. And this shows that the most learned and able judges
may, from the force of precedent, apply an established rule where
the reason or necessity on which it was founded fails.
In England and in the Atlantic states, the ebb and flow of the
tide marked the extend of the navigableness of rivers. But the
navigability of our Western rivers in no instance depends upon the
tide.
By the civil law, the maritime system extends over all navigable
waters. The admiralty and maritime jurisdiction, like the common
law or chancery jurisdiction, embraces a system of procedure known
and established for ages. It may be called a system of regulations
embodied and matured by the
Page 61 U. S. 304
most enlightened and commercial nations of the world. Its origin
may be traced to the regulations of Wisbuy, of the Hanse Towns, the
Laws of Oleron, the ordinances of France, and the usages of other
commercial countries, including the English admiralty.
It is in fact a regulation of commerce, as it comprehends the
duties and powers of masters of vessels, the maritime liens of
seamen, of those who furnish supplies to vessels, make advances
&c., and, in short, the knowledge and conduct required of
pilots, seamen, masters, and everything pertaining to the sailing
and management of a ship. As the terms import, these regulations
apply to the water, and not to the land, and are commensurate with
the jurisdiction conferred.
By the Constitution,
"Congress has power to regulate commerce with foreign nations,
and among the several states, and with the Indian tribes."
The provision "among the several states" limits the power of
Congress in the regulation of commerce to two or more states;
consequently a state has power to regulate a commerce exclusively
within its own limits, but beyond such limits the regulation
belongs to Congress. The admiralty and maritime jurisdiction is
essentially a commercial power, and it is necessarily limited to
the exercise of that power by Congress.
Every voyage of a vessel between two or more states is subject
to the admiralty jurisdiction, and not to any state regulation. A
denial of this doctrine is a subversion of the commercial power of
Congress, and throws us on the Confederation. It also subverts the
admiralty and maritime jurisdiction of the federal courts, given
explicitly in the Constitution and in the Judiciary Act of
1789.
In this case, the steamboat
Wetumpka was engaged in a
commerce between New Orleans, in Louisiana, and Montgomery, in
Alabama. The
Magnolia was running between Mobile and
Montgomery in the State of Alabama. The
Wetumpka, within
the State of Alabama, was as much under the federal jurisdiction as
it was in the State of Louisiana. No one will contend that one
state may regulate the commerce of another; nor can it be
maintained that the power to regulate the commerce of the
Wetumpka in this case was in either state. It was a
commerce between the two states, which comes within the definition
of commerce expressly given to Congress. While thus protected and
regulated by the power of Congress, the
Wetumpka was run
into by the
Magnolia and sunk in the Alabama River; and it
is earnestly contended that the admiralty can give no remedy for
this aggravated trespass. Since the decision in the case of
The
Genesee Chief by seven
Page 61 U. S. 305
judges, only one dissenting, the admiralty jurisdiction has been
constantly applied on all our lakes and rivers of the North, and
some of the cases have been reviewed in this Court without
objection. The navigators of the Alabama River must have been more
prudent and skillful than those of the North, or their voyages were
less frequent, if the above collision is the first that has
occurred on the Alabama River.
It is true, the
Magnolia was engaged in a commerce
strictly within the state; but this does not exonerate her, as the
trespass was on a vessel protected by the admiralty law. Cases have
frequently occurred on the Ohio and Mississippi Rivers where
steamboats, having run down and sunk flat boats, were held
responsible for the injury in the admiralty. And if a steamer is
liable in such cases, a remedy for an injury done to it cannot be
withheld in the same court.
In
The Genesee
Chief, 12 How. 443, this Court held:
"The admiralty jurisdiction granted to the district courts of
the United States under the Constitution extends to the navigable
rivers and lakes of the United States, without regard to the ebb
and flow of the tides of the ocean."
It is difficult to perceive how this language could have been
mistaken, as alleged by the counsel in argument. All the lakes and
all the navigable rivers in the Union are declared to be subject to
this jurisdiction without reference to the tide, and it overrules
all previous decisions on that subject.
It was said in that case the act of 1845 extended the
jurisdiction of the admiralty, and this was so, as by the act of
1789 it was limited to rivers navigable from the sea by vessels of
ten tons burden and upwards.
It is alleged that the assumption of this jurisdiction will
absorb matters of controversy and the punishment of offenses and
misdemeanors now cognizable in the courts of the state, without the
trial by jury, and before a foreign tribunal, contrary to the
wishes and interests of a state.
The admiralty and maritime jurisdiction has been in operation on
all the navigable rivers of our Atlantic coast since the
organization of the government, and its exercise has not been found
dangerous or inconvenient. Experience is a better rule of judgment
than theory. If this jurisdiction has been found salutary in that
part of our country which is most commercial, it cannot be
injurious or dangerous in those parts which are less
commercial.
The federal courts have no cognizance of common law offenses on
the land or on the water. Jurisdiction has been conferred on them
of common law and chancery in specified cases in every state and
territory of the Union, but I am not
Page 61 U. S. 306
aware that this has been considered a foreign jurisdiction or
one that has been dangerous to the people of any state. Occasional
conflicts of jurisdiction have arisen between this tribunal and the
state courts to preserve the rights guaranteed by the federal
Constitution, but this became necessary in maintenance of the
fundamental law of the Union. And if Congress should deem it
necessary for the regulation of our internal commerce, amounting to
more than ten hundred millions of dollars annually, to enact laws
for its protection, they will not doubt be as mindful of the rights
of the states as of those who, by their enterprise and wealth,
carry on the commerce of the country.
Everyone knows how strenuously the admiralty jurisdiction was
resisted in England by the common law lawyers, headed by Coke. The
contest lasted for two centuries. The admiralty civilians contended
that the statutes of Richard II and 2 H. IV did not curtail the
ancient jurisdiction of the admiralty over torts and injuries upon
the high seas and in ports within the ebb and flow of the tide,
which was shown by an exposition of the ancient cases, as was
opposed by the common law courts, but they continued the contest
until they acquired a concurrent jurisdiction over all maritime
causes, except prize. The vice-admiralty courts in this country
under the colonial government exercised jurisdiction over all
maritime contracts and over torts and injuries, as well in ports as
upon the high seas, and this was the jurisdiction conferred on our
courts by the Constitution.
But it was not until a late period that the jurisdiction of the
admiralty in England was settled by the statute of 3 and 4
Victoria, c. 67, passed in 1840. This is entitled "An act to
improve the practice and extend the jurisdiction of the High court
of Admiralty in England." And it is gratifying to the bar and bench
of this country to know that the above statute has placed the
English admiralty substantially on the same footing that it is
maintained in this country. To this remark it is believed there are
but two or three exceptions. Insurance, ransom, and surveys are
believed to constitute the only exceptions. The flow of the tide,
as before remarked, is used to designate the navigableness of their
rivers. Whether an insurance is within the admiralty has not been
considered by this Court. It is singular that while the English
admiralty, by its extension, has been placed substantially upon the
same basis as our own, ours should be denounced as having a
dangerous tendency upon our interests and institutions, and a
desire expressed to abandon the enlightened rules of the civil law
and follow the misconstrued statutes of Richard II.
Page 61 U. S. 307
Antiquity has its charms, as it is rarely found in the common
walks of professional life, but it may be doubted whether wisdom is
not more frequently found in experience and the gradual progress of
human affairs, and this is especially the case in all systems of
jurisprudence which are matured by the progress of human knowledge.
Whether it be common, chancery, or admiralty law, we should be more
instructed by studying its present adaptations to human concerns
than to trace it back to its beginnings. Everyone is more
interested and delighted to look upon the majestic and flowing
river than by following its current upwards until it becomes lost
in its mountain rivulets.
MR. JUSTICE DANIEL dissenting:
Against the opinion of the Court in this cause and the doctrines
assumed in its support I feel constrained solemnly to protest.
If in the results which have heretofore attended repeated
efforts on my part to assert what are regarded both as the sacred
authority of the Constitution and the venerable dictates of the law
were to be sought the incentive to this remonstrance, this act
might appear to be without motive, for it cannot be denied that to
earnest and successive remonstrances have succeeded still wider
departures from restrictions previously recognized, until in the
case before us every limit upon power, save those which judicial
discretion or the propensity of the court may think proper to
impose, is now cast aside. But it is felt that in the discharge of
official obligation there may be motives much higher than either
the prospect or the attainment of success can supply, and it may be
accepted as a moral axiom that he who, under convictions of duty,
cannot steadily oppose his exertions, though feeble and unaided, to
the march of power, when believed to be wrongful, however
overshadowing it may appear, must be an unsafe depositary of either
public or private confidence. My convictions pledge me to an
unyielding condemnation of pretensions once denominated, by a
distinguished member of this Court, "the silent and stealing
progress of the admiralty in acquiring jurisdiction to which it has
no pretensions," and still more inflexibly of the fearful and
tremendous assumptions of power now openly proclaimed for tribunals
pronounced by the venerable Hale, by Coke and by Blackstone, and by
the authorities avouched for their opinions, to have been merely
tolerated by, and always subordinate to, the authority of the
common law -- an usurpation licensed to overturn the most
inveterate principles of that law, licensed in its exercise to
invade the jurisdiction
Page 61 U. S. 308
of sovereign communities, and to defy and abrogate the most
vital immunities of their social or political organization. I
cannot, without a sense of delinquency, omit any occasion of
protesting against what to my mind is an abuse of the greatest
magnitude and one which, hopeless as at present the prospect of
remedy may appear, it would seem could require nothing but
attention to its character and tendencies to insure a corrective.
It must of necessity be resisted in practice, as wholly
irreconcilable with every guarantee of the rights of person or
property, or with the power of internal police in the states.
Having, in cases formerly before this Court,
vid. 6
How. 395
et seq., New Jersey Steam
Navigation Company v. Merchants' Bank; 10 How. 607,
Newton v.
Stebbins; 12 How. 465,
Genesee Chief v.
Fitzhugh; 18 How. 269,
Ward v. Peck;
traced with some care the origin of the admiralty jurisdiction in
England and the modes and limits to which that jurisdiction was
there subjected, no farther reference will here be made to the
authorities by which that investigation has been guided, than is
necessary to illustrate the origin and extent of the like
jurisdiction as appertaining to the tribunals of the United States.
Amongst the novelties which are daily brought to notice, it would
not awaken very great surprise to hear it contended, in the support
of a favorite theory or position, that the admiralty courts of
England were not governed by the laws and ordinances of that
country, or in effect that England did not govern herself, but has
been, and still is, controlled by some foreign or extraneous
authority. Something not unlike this strange idea has, on more than
one occasion, been intimated, and with respect to her colonies,
strictly subordinate as they are known to have ever been in
political and legislative power to the mother country, it has been
broadly asserted that these have been released from the
restrictions upon the admiralty in the mother country, whilst this
emancipation is coupled with the incongruous position that they and
the United States, as once forming a portion of those colonies are
more or less subject to the admiralty regulations of every petty
community in the world. I am constrained to repel such an argument,
if argument it can be called, as consonant neither with reason nor
historical accuracy. The only known difference between the
administration in admiralty courts in the mother country and in her
American colonies, was created by express statute, with reference
to the revenue, was limited to the single regulation prescribed by
the statute, and has by every writer upon the subject been treated
as a special direction, applicable solely to the matter of which
it
Page 61 U. S. 309
treated, and as neither entering into nor deducible from any
regular and constitutional attribute of the admiralty jurisdiction.
It was an exception, an anomaly, and in its nature and operation
was unique and solitary. Of the same character precisely is the
provision of the eleventh section of the Judiciary Act of 1789,
which invests the district courts with jurisdiction in cases of
seizure under the laws of imposts of the United States. This
provision confers in the first place, in general terms, without
limitation, on the district courts,
admiralty and maritime
jurisdiction. So far, then, as it was the purpose to
constitute these tribunals courts of admiralty, the jurisdiction
conferred by the language of the act just quoted was complete. The
district courts were thereby created courts of admiralty to all
intents and purposes; but the section goes on to add to the powers
of the district courts, the cognizance of other subjects not
regularly appertaining to the jurisdiction of the admiralty,
viz., of
seizures under the laws of imposts;
subjects belonging to a class which was in England peculiarly
cognizable in the court of exchequer, and under the authority and
process of the common law.
The conclusion, then, from the eleventh section of the Judiciary
Act, is inevitably this: that the power thereby vested with respect
to
seizures, is not an
admiralty power -- was
never conferred by the investment of admiralty power in accordance
with the Constitution, but is in its character distinct therefrom,
and is peculiar and limited in its extent. Such appears to have
been the opinion of two distinguished commentators upon the
admiralty jurisdiction of the courts of the United States,
Chancellor Kent and Mr. Dane, the former of whom, in the 1st vol.
of his Commentaries 376, holds this language:
"Congress had a right, in their discretion, to make all seizures
and forfeitures cognizable in the district courts; but it may be a
question whether they had any right to declare them to be cases of
admiralty jurisdiction, if they were not so by the law of the land
when the Constitution was made. The Constitution secures to the
citizen trial by jury in all criminal prosecutions, and in all
civil suits at common law where the value in controversy exceeds
twenty dollars. These prosecutions for forfeitures of large and
valuable portions of property, under the revenue laws, are highly
penal in their consequences, and the government and its officers
are always parties, and deeply concerned in the conviction and
forfeiture. And if, by act of Congress or by judicial decisions,
the prosecution can be turned over to the admiralty side of the
district court, as being neither a criminal prosecution nor a suit
at common law, the trial of the cause is then transferred from a
jury of the country to
Page 61 U. S. 310
the breast of a single judge. It is probable, however, that the
Judiciary Act did not intend to do more than to declare the
jurisdiction of the district courts over these cases; and that all
the prosecutions for penalties and forfeitures upon seizures under
laws of imposts, navigation, and trade, were not to be considered
of admiralty jurisdiction when the case admitted of a prosecution
at common law; for the act saves to
suitors in all cases
the right to a common law remedy, where the common law was
competent to give it. We have seen that it is competent to give it,
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, and it may be doubted whether the case of
La Vengeance, on which all subsequent decisions of the
Supreme Court have rested, was sufficiently considered. The
vice-admiralty courts in this country when we were colonies, and
also in the West Indies, obtained jurisdiction in
revenue
causes to an extent totally unknown to the jurisdiction of the
English admiralty, and with powers as enlarged as those claimed at
the present day. But this extension,
by statute, of the
jurisdiction of the American vice-admiralty courts beyond their
ancient limits to revenue cases and penalties was much discussed
and complained of at the commencement of the Revolution."
Judge Conkling also, in his Treatise on the Admiralty vol. 2,
391, says:
"In England, all revenue seizures are cognizable
exclusively in the
exchequer, and such of them as
are cognizable on the admiralty side of the district courts of the
United States are made so
only by force of a legislative
act."
From the above exposition of the jurisdiction of the
vice-admiralty courts in the British colonies, it is manifest that
neither by custom nor practice, nor by positive enactment, has
there ever been created in those courts any power or jurisdiction
appertaining to their character and constitution strictly as courts
of admiralty, which they did not derive regularly by their
commission from the Lord High Admiral. Brown, in his Civil and
Admiralty Law, vol. 2, 490, says of these courts,
"That all powers of the vice-admiralty courts within His
Majesty's dominions are derived from the High Admiral, or the
Commissioners of Admiralty in England, as inherent and incident to
that office. Accordingly, by virtue of their commission, the Lords
of the Admiralty are authorized to erect vice-admiralty courts
in North America, the West Indies, and the settlements of
the East India Company, and in case any person be aggrieved by
sentence, or interlocutory decree having the force of a sentence,
he may appeal to the High court of Admiralty."
So, too, Blackstone, vol. 3, 68, says:
"Appeals from the
Page 61 U. S. 311
vice-admiralty courts
in America, and our other
plantations and settlements, may be brought before the courts of
admiralty in England, as being a branch of the Admiral's
jurisdiction."
It may here be pertinently asked, how, with this exposition of
the law, can be reconciled the assertion that at the time of the
American Revolution, and down to the adoption of the Constitution
of the United States, there were vested in the colonial courts of
England, and were appropriate to them as courts of admiralty,
powers which never were vested in their superior, by whom they were
created, and by whom they were to be supervised and controlled?
With perfect respect, it would seem to imply an incongruity, if not
an absurdity, to ascribe to any tribunal an appellate or revisory
power with reference to matters beyond its legitimate jurisdiction,
and which confessedly belonged to a different authority. Yet is
this assertion of jurisdiction in admiralty in the colonial courts
beyond that of their creator and superior, constantly renewed
arguendo, whilst, in reply to repeated challenges of
authority by which the assumption may be sustained, not one
adjudication in point has been adduced. Again, it may be asked
whether, in the history of jurisprudence, another instance can be
found in which it is alleged that a
system, a corpus
juris, has grown up and been established, and yet not an
ingredient, not a fragment of any such
system can be
discovered? But there have been decisions which were made in this
country -- decisions cotemporaneous with the event of the
separation from the mother country; but these decisions,
respectable for their learning and ability, so far from sustaining
the
obiter assertion above mentioned, divest it of even
plausibility; for they affirm and maintain a complete conformity
and subordination of the admiralty jurisdiction in the colonies, to
that which had prevailed in England from the time of the statutes
of Richard, and from the days of Owen, Brownlow, Hobart, Fortescue,
and Coke. I refer to the case of
Clinton v. Brig Hannah,
decided by Judge Hopkinson, of Pennsylvania, in 1781, and the case
of
Shrewsbury v. Sloop Two Friends, decided by Judge Bee,
of South Carolina, in 1786. And, indeed, the phrase "admiralty
jurisdiction," except in the acceptation received by us from the
English courts, is without intelligible or definite meaning, for
under no other system, of jurisprudence is the law of the marine
known to be administered under the same organization.
Let us now take a view of the claims advanced for the admiralty
power, in its constant attempts at encroachment upon the principles
and genius of the common law, and of our republican and peculiar
institutions, at least from the decision in the
Page 61 U. S. 312
case of
The Thomas
Jefferson, in the 10 Wheat. 428, to that of
The Genesee Chief v.
Fitzhugh, 12 How. 443, inclusive, this last a case,
to my apprehension, more remarkable and more startling as an
assumption of judicial power than any which the judicial history of
the country has hitherto disclosed, prior to the case now under
consideration.
By the statute of 13th Richard II, cap. 15th, it is enacted
that
"The Admirals and their deputies shall meddle with nothing done
within the realm, but only with things done upon the
sea,"
and by the 15th of Richard II, cap. 3d,
"That in all contracts, pleas, and quarrels, and other things
done within the bodies of counties,
by land or water, the
Admiral shall have no cognizance, but they shall be tried by the
law of the land."
The language of these provisions is truly remarkable. By that of
the first is denounced the exclusion utterly of the Admiral's power
from the entire realm; by that of the second, is as explicitly
denied to him all cognizance of things done
in the bodies of
the counties, either by land or by water. And the statute of
Henry IV, cap. 11, by way of insuring a sanction of these
exclusions, provides
"That he who finds himself aggrieved against the form of the
statutes of Richard shall have his action grounded upon the case
against him who so pursues in the admiralty, and recover double
damages."
Lord Hale, in his History of the common law, speaking of the
court of admiralty, says, p. 51:
"This Court is not bottomed or founded upon the authority of the
civil law, but hath both its powers and jurisdiction by the law and
custom of the realm in such matters as are proper for its
cognizance."
And again, in an enumeration of matters not within the
cognizance of the admiralty, he continues:
"So also of damages in
navigable rivers within the bodies of
counties, things done upon the shore at low water mark, wreck
of the sea &c.; these things belong not to the Admiral's
jurisdiction."
And the cause, the only cause assigned as the foundation of that
jurisdiction, is the peculiar locality of each instance,
viz., its being neither within the body of any county or
vicinage, nor
infra fauces terrae, so that the
venue
or pays can be summoned for its trial. No one pretends to
doubt that thus stood the admiralty law of the realm of England at
the period of separation from the American colonies, and perhaps in
the particulars above mentioned it may remain the unchanged law of
that country to the present moment, as it is a fact recorded in
history, that for a departure from that law, one of the most
learned and brilliant of her admiralty judges Sir William Scott
(afterwards Lord Stowell) was condemned in a very heavy verdict.
Such, I say, was the law of the realm of England, and I think that
the fallacy or pretense of any change in
Page 61 U. S. 313
the admiralty law proper of that realm, in its application to
the colonies, has been clearly demonstrated.
The admiralty law of England, according to every accurate test,
was the admiralty law of the United States at the period of the
adoption of the Constitution. It is pertinent in this place to
remark, that the jurisdiction of the admiralty having been, both by
the common law and by the language of the statutes of Richard II
and Henry IV, excluded not only from the body of the counties, both
on the land and on the water, and even from the
realm, it
followed,
ex consequenti, that the locality of that
jurisdiction was and necessarily so within the ebb and flow of the
tide. Hence, it is more than probable, arose the adoption and use
of the phrase as a portion of the description of the locus of that
jurisdiction,
viz., that it was
maritime, i.e.,
connected with or was upon the sea, and was neither upon the land
nor within the
fauces terrae, nor upon any navigable water
within a county, and was within the ebb and flow of the tide.
Under such a state of the admiralty law, conceded to be the law
of England, and as I contend, the law of the United States, came
before this Court for decision the case of
The Thomas
Jefferson, in the 10 Wheat. 428. In this case, not
a single ingredient required by the English cases to give
jurisdiction existed. It could by no possibility or by any
propriety of language be styled "maritime," as every fact it
presented occurred at the distance of a thousand miles from the
ocean, and it could not be shown that there ever existed a tide in
the watercourse on which the occurrences that produced the suit
originated. Yet, in the absence of these essential ingredients of
admiralty jurisdiction, the court, with that greed for power by
which courts are so often impelled beyond the line of strict
propriety, makes a query whether, under the show of "regulating
commerce," Congress might not assert a distinctive and original
authority,
viz., the power of the admiralty. The court,
however, felt itself constrained to concede the necessity of a
locality within the ebb and flow of the tide, and for the want of
that requisite to deny the jurisdiction.
In the case of
Peroux v.
Howard, 7 Pet. 324, the necessity for the ebb and
flow of the tide to give jurisdiction is equally conceded, but the
Court, in order to maintain its power, deems itself authorized to
appeal
virtute officii not to the attraction of the moon,
the received philosophic explanation of this phenomenon, but to the
current of the Mississippi, which, in precipitating itself upon the
waters of the Gulf, occasions, they say, by conflict with the
latter, some changes in the rise and fall of the river at New
Orleans. This
judicial theory of the
Page 61 U. S. 314
tides possesses at least the characteristic of novelty. Whether
it will be accepted and find a place in the annals of scientific
discovery may admit of some doubt.
Next follows in order of time the case of
The
Steamboat New Orleans v. Phoebus, 11 Pet. 175. In
this case, as in that of
Peroux v. Howard, the vessel
libeled was in the same City of New Orleans, one of the termini of
her trading voyages, and adjudged by the case last mentioned to be
within the ebb and flow of the tide. It was contended by the
counsel for the claimants of the steamboat
New Orleans, a
gentleman now upon this bench, that the situation of the steamboat
libeled in each case, as conferring jurisdiction by reason of
locality, was identical, and it surpasses any acumen I possess, to
perceive any real distinction between the cases. The Court,
however, speaking through the late Justice Story, whom none could
ever suspect of any leaning against the admiralty, insisting with
consistent pertinacity on the requisite of
the ebb and flow of
the tide, said:
"The case is not one of a steamboat engaged in maritime trade
and navigation. Though in her voyages she may have touched at one
terminus of them in
tidewaters, her employment has been
substantially on other waters. The admiralty has not any
jurisdiction over vessels employed on such voyages in cases of
disputes between part owners. The
true test of its
jurisdiction in all cases of this sort is whether the vessel be
engaged substantially in maritime navigation, or in interior
navigation and trade
not on tidewaters. In the latter
case, there is no jurisdiction. So that, in this view, the district
court had no jurisdiction over the steamboat involved in the
present controversy, as she was wholly engaged in voyages on such
interior waters."
In the case of
Waring v.
Clark, 5 How. 441, and in that of
New Jersey
Steam Navigation Company v. Merchants' Bank, 6 How.
344, anomalous as these cases appear to me, and wholly unsustained
either, as I deem them, by English precedent or by that
construction of the federal Constitution which is warranted, nay
demanded, by the language of the Constitution, by history, or
precedent, yet they both concur in establishing the
ebb and
flow of the tide as the test of jurisdiction in the admiralty.
As, for example, in the former of these last-mentioned cases, the
Court announces the conclusion at which it had arrived, and which
it proposed to demonstrate by argument and authority, in the
following terms,
viz.:
"It is the first time that the point has been distinctly
presented to this Court whether a case of collision in our rivers,
where the tide ebbs and flows, is within the admiralty
jurisdiction of the courts of the United States if the locality
Page 61 U. S. 315
be, in the sense in which it is used by the common law judges in
England,
infra corpus comitatus. It is this point that we
are now about to decide, and it is our wish that nothing which may
be said in the course of our remarks shall be extended to embrace
any other case of contested admiralty jurisdiction. Thus, too, in
the second of these cases, Nelson, J., as the organ of the majority
of the court, p. 392, propounds these propositions:"
"On looking into the several cases in admiralty which have come
before this Court and in which its jurisdiction was involved or
came under observation, it will be found that the inquiry has been
not into the jurisdiction of the Court of Admiralty in England, but
into the nature and subject matter of the contract, whether it was
a maritime contract, and the service a maritime service, to be
performed upon the
sea, or upon waters within the ebb and flow
of the tide."
And again:
"The exclusive jurisdiction in admiralty was conferred on the
national government, as closely connected with the grant of the
commercial power. It is a
maritime court, instituted for
the purpose of administering
the law of the seas. There
seems to be ground, therefore, for restraining its jurisdiction in
some measure within the grant of the commercial power, which would
confine it in cases of contracts to those concerning the navigation
and trade of the country,
upon the high seas and
tidewaters, with foreign countries, and amongst the several
states. Contracts growing out of the purely internal commerce of
the state,
as well as commerce beyond tidewaters, are
generally domestic in their origin and operation, and could
scarcely have been intended to be drawn within the cognizance of
the federal courts."
These several decisions, founded, as they are believed to have
been, in error, and upon a misconstruction of the law, of the
Constitution, and the history of the country insofar as they sought
to permit invasions of the territorial, municipal, and political
rights of the states, are nevertheless not entirely without their
value. By the limit they prescribed to the admiralty --
viz., the ebb and flow of the tide -- they at least
rejected the ambitious claim to undefined and undefinable judicial
discretion over the Constitution and the law and the indispensable
territorial rights of the states, and so far fortified the
foundations of a government, based, in theory at any rate, upon
restricted and exactly defined delegations of power only. It was
under the stress of the aforegoing decisions, and, as is well
known, upon an application of a portion of this Court that the act
of Congress of February 26, 1845, cap. 22, was passed, with the
sole view of extending the admiralty jurisdiction to cases arising
upon the lakes, and upon the rivers connecting
Page 61 U. S. 316
the said lakes, on which there were no tides, and which
(
i.e., the lakes) were within no state limits. Here, then,
we have the exception, the solitary exception, fortifying the
general rule as to the admiralty jurisdiction, which jurisdiction
is again described and defined in this provision of the statute
above quoted, as existing upon the
high seas or upon the
tidewaters of the United States only.
This interference by the legislative department of the
government, elicited, too, by the judiciary department, whether
within the competency of the former, under the Constitution, or
not, must be received by every reasonable rule of induction as a
concession, by both, that there existed a propriety or necessity
for the enlargement of the admiralty jurisdiction over the lakes,
and the rivers which connected them, in which there were no tides,
and that whatever extension was either called for or made must be
the result of legislative action, and not of mere judicial
discretion. The repeated and explicit decisions of this Court
already cited, and the act of Congress of 1845, might, it is
supposed, have been regarded as some earnest of uniformity and
certainty in defining the admiralty jurisprudence of the United
States, at least upon the points adjudged, and as to the provisions
of the statute; but in this age of
progress, such
anticipations are held to be amongst the wildest fallacies. It is
now discovered that the principles asserted by the admiralty courts
in England, or said to have been propounded by the mysterious,
unedited, and unproduced proceedings of the colonial vice-admiralty
courts, so often avouched here in argument; the decisions of this
Court and the provisions of the act of 1845, are all to be thrown
aside as wholly erroneous. That the admiralty power is not to be
restricted by its effect upon the territorial, political, or
municipal rights and institutions upon which it may be brought to
bear, nor by any checks from the authority of the common law. That
there is but one rule by which its extent is to be computed, and
that is the rule which measures it by miles or leagues; that the
scale for its admeasurement can be applied only as the discretion
of the judiciary may determine, upon its necessity or policy,
irrespective of the Constitution, the statute, or the character of
the element on which it is to be exerted, or the adjudications of
this Court on this last point. That the admiralty of the fixed and
limited realm of England, and as known to the framers of the
Constitution, cannot be the admiralty of this day, and, of course,
the admiralty of our time and of our present day must be changed
according to the judgment or discretion of the courts, in the event
of further acquisitions of territory.
Such are the conclusions regularly deducible from the
opinion
Page 61 U. S. 317
of this Court in the case of
The Genesee Chief --
conclusions, in my deliberate judgment, the most startling and
dangerous innovations, anterior to that decision, ever attempted
upon the powers and rights of internal government appertaining to
the states. Speaking of the case of
Waring v. Clark, the
Court said,
53 U. S. 12
How. 456:
"The majority of the Court thought there was sufficient proof of
tide there, and consequently it was not necessary to
consider whether the admiralty power extended higher. But that case
showed the unreasonableness of giving a construction to the
Constitution which would measure the jurisdiction of the admiralty
by the
tide."
It may, I think, be here pertinently inquired, whether the
natural and appropriate limit of a jurisdiction, admitted by all to
be
maritime, can be the more reasonably measured by the
element on which alone that jurisdiction is authorized to act, for
which alone existence has been given it, or by an indefinite,
arbitrary, and mutable mathematical or geographical extension.
Again, it is said by the Court, p.
53 U. S. 457,
speaking of the limitation resulting from the character of the
river:
"If such be the construction, then a line drawn across the River
Mississippi would limit the jurisdiction, although there were ports
of entry above it, and water as deep and navigable, and the
commerce as rich and exposed to the same hazards and incidents as
the commerce below."
If the experience of a pretty long official life had not
familiarized me with instances, unhappily not a few, in which the
meaning and objects of the Constitution and the just influence of
the actually surrounding condition of the country when that
instrument was framed have been lost sight of or made to yield to
some prevailing vogue of the times, I confess that some surprise
would have been felt at the seeming forgetfulness of the court in
giving utterance to the expressions above quoted, of the facts,
that when the Constitution was adopted, there was no such
navigation as that on the Mississippi then known -- no such river
was then possessed by the United States; that the Constitution was
formed by, and for, a coexisting political and civil association;
was designed to be adapted to that state of things; and was in
itself complete, and fully adapted to the ends and subjects to
which it was intended to be applied. And but for the reason or the
examples above referred to, the greater surprise would have been
awakened by the disregard manifested, in the reasoning of the
court, to this great fundamental principle of republican
government, that if the Constitution was, at the period of its
adoption, or has since, by the mutations of time and events, become
inadequate to accomplish the objects of its creation, it belongs
exclusively to those who formed it, and in whom resides the right
to alter or abolished,
Page 61 U. S. 318
to remedy its defects. No such power can exist with those who
are the creatures of the Constitution, clothed with the humbler
office of executing the provisions of that instrument. Suppose, at
the time of its adoption, the Constitution was universally believed
to be defective, in many respects essentially defective, would such
a conviction have rendered it less the Constitution? Would it have
lessened in any degree the obligation of obedience to it, or
changed the power whence a remedy for its defects was to be
derived? Could the judiciary, without usurpation, have essayed such
a remedy? It is conceded by the Court that at the time of forming
the Constitution the admiralty jurisprudence of England was the
only system known and practiced in this country; it is admitted,
also, that the English system was limited in theory and practice to
the ebb and flow of the tide. It is further admitted that at the
time the Constitution was adopted, and our courts of admiralty went
into operation, the definition which had been adopted in England
was equally proper here. These admissions form a virtual
surrender of anything like a foundation on which the decision of
the court could be rested, either in the case of
The Genesee
Chief or in this case depending on that alone. For, if it be
admitted that at the time of the adoption of the Constitution the
admiralty rule in England limited the jurisdiction to
tidewaters, and that the same rule was adopted and was
proper here, it follows, by inevitable induction, that the
jurisdiction intended to be created by the Constitution was that
which was the only one then known, and which, in the language of
this Court, was then proper here, as the Constitution cannot be
supposed to establish anything unauthorized or improper, and
necessarily was complete, and adapted to the existing state of
things. And this inquiry, therefore, forces itself upon us,
viz., if the system was thus limited, and was known to be
so by the framers of the Constitution, and if this instrument was
designed to be applicable to the existing state of things, and was
complete in itself, in all its delegations of and restrictions upon
power, where is to be sought the right or power to enlarge or to
diminish the effect or meaning of the instrument to make it
commensurate with a predicament or state of things not merely
not existing when the Constitution was framed, but which
was not even within the contemplation of those by whom it was
created? Such a power could not exist in the legislature, the only
branch of the government on which anything like a faculty to
originate measures was conferred; much less could it be claimed by
functionaries who have not, and rightfully cannot have, any
creative faculties, but whose capacities and duties are restricted
to an interpretation of the
Page 61 U. S. 319
Constitution and laws as they should have been fairly expounded
at the times of their enactment.
But the Court, after having declared the correctness of the
English rule and its adoption here, went on to say, nevertheless,
"that a definition which would
at this day limit public
rivers to
tidewater rivers is wholly inadmissible." And
why? Because the Constitution, either by express language or by
necessary implication, recognizes or looks to any change or
enlargement in the principles or the extent of admiralty
jurisdiction? Oh, no! For no such reason as this. "But we have
now [says the Court] thousands of miles of public
navigable water, including lakes and rivers, in which there is no
tide." Such is the argument of the Court, and, correctly
interpreted, it amounts to this: the Constitution, which at its
adoption suited perfectly well the situation of the country and
which then was unquestionably of supreme authority, we now adjudge
to have become unequal to the exigencies of the times; it must
therefore be substituted by something more efficient, and as the
people, and the states, and the federal legislature, are tardy or
delinquent in making this substitution, the duty or the credit of
this beneficent work must be devolved upon the judiciary. It is
said by the Court
"that there is certainly no reason for admiralty power over a
public tidewater, which does not apply with equal force to any
other public waters used for commercial purposes."
Let this proposition be admitted literally, it would fall
infinitely short of a demonstration that because the Constitution,
adequate to every exigency when created, did not comprise
predicaments not then in existence or in contemplation, it can be
stretched, by any application of judicial torture, to cover any
such exigency, either real or supposed. This argument forcibly
revives the recollection of the interpretation of the phrase
"necessary and proper," once ingeniously and strenuously
wielded to prove that a bank, incorporated with every faculty and
attribute of such an institution, was not in reality, nor was
designed to be, a bank, but was essentially an agent, an
indispensable agent, in the administration of the federal
government. And with reference to this doctrine of necessity or
propriety or convenience it may here be remarked that it is as
gratuitous, and as much out of place with respect to the admiralty
jurisdiction as it was with respect to the Bank of the United
States -- perhaps still more so, as it is certain, and obvious to
every well informed individual, that with the exception of some of
the lakes, there is not a watercourse in the country situated above
the ebb and flow of the tide which is not bounded on one or on both
its margins by some county. And in the case before us, it is
alleged expressly
Page 61 U. S. 320
in the pleading, and admitted throughout that every fact in
reference thereto transpired upon an inland water of the State of
Alabama, two hundred miles above the tide, and within the County of
Wilcox, in that state. And by adhering to what is an essential test
of the admiralty jurisdiction in England, and formerly adopted and
practiced upon in this country, there will be obtained a standard
as to that jurisdiction, far more uniform and rational than that
furnished by the tides. I allude to the rule which repels the
pretensions of the admiralty whenever it attempts to intrude them
infra corpus comitatus. This is the true rule as to
jurisdiction, as it is susceptible of certainty, and concedes and
secures to each system or jurisprudence, that of the admiralty and
of the common law, its legitimate and appropriate powers. For this
plain and rational test this Court now attempts to substitute one
in its nature vague and arbitrary, and tending inevitably to
confusion and conflict. It is now affirmed that the jurisdiction
and powers of the admiralty extend to all waters that are
navigable within or without the territory of a state. In
quest of certainty under this new doctrine, the inquiry is
naturally suggested what are navigable waters? Will it be proper to
adopt, in the interpretation of this phrase, an etymological
derivation from
"navis," and to designate as navigable
waters those only on whose bosoms ships and navies can be floated?
Shall it embrace waters on which sloops and shallops, or what are
generally termed river craft, can swim, or shall it be extended to
any water on which a batteau or a pirogue can be floated? These are
all, at any rate,
practicable waters, navigable in a
certain sense. If any point between the extremes just mentioned is
to be taken, there is at once opened a prolific source of
uncertainty, of contestation and expense. And if the last of these
extremes be adopted, then there is scarcely an internal
watercourse, whether in its natural condition, or as improved under
the authority and with the resources of the states, or a canal, or
a mill pond, some of which are known to cover many acres of land,
and, as this Court can convert rivers without tides into
seas, may be metamorphosed into small lakes, which would
not by this doctrine be brought within the grasp of the admiralty.
Some of our canals are navigated by steam, and some of them by
sails; some of them are adjuncts to rivers and form continuous
communications with the ocean; all of them are fed by, and
therefore are made portions of, rivers. Under this new regime, the
hand of federal power may be thrust into everything, even into a
vegetable or fruit basket, and there is no production of a farm, an
orchard, or a garden on the margin of these watercourses, which is
not liable to be arrested on its way to the next
Page 61 U. S. 321
market town by the
high admiralty power, with all its
parade of appendages, and the simple, plain, homely countryman, who
imagined he had some comprehension of his rights, and their
remedies under the cognizance of a justice of the peace, or of a
county court, is now, through the instrumentality of some apt
fomenter of trouble, metamorphosed and magnified from a country
attorney into a proctor, to be confounded and put to silence by a
learned display from Roccus de Navibus, Emerigon, or Pardessus,
from the Mare Clausum, or from the Trinity masters, or the
Apostles.
A citizen of any State of this Confederacy, bound as he is by
habit, by affection, and fealty, to the soil and the institutions
of his fathers, upon whom this magnificent machinery is brought to
bear, especially when recollecting by whom and for whose sole
benefit, this Confederacy was created, may, as I have often done
when contemplating the ceaseless march of central encroachment, be
led to a tone of reflection like the following:
"Urbem quam Romam dicunt putavi,"
"Stultus ego, huic nostrae similem,"
"Verum haec tantum, alias inter caput extulit urbes,"
"Quantum lenta solent inter viburna cupressi."
Few, comparatively, of the attributes of sovereignty and
equality, presupposed to have existed in those by whom the federal
government was created, have remained perfectly intact and exempt
from aggression by their own creature, and by no conceivable agency
could they be more fearfully assailed than by this indefinite and
indefinable pretension to admiralty power, which, spurning the
restraints prescribed to it by the wise caution of our own
ancestors, challenges, as occasion suits, the opinions and
practices of all nations, people, and tongues, however diverse or
incongruous with the genius of our own institutions.
Not the least curious circumstance marking this course is the
assertion that it produces equality amongst all the citizens of the
United States. Equality it may be, but it is equality of subjection
to an unknown and unlimited discretion in lieu of allegiance to
defined and legitimate authority.
In truth, the extravagance of these claims to an all-controlling
central power, their utter incongruity with any just proportion or
equipoise of the different parts of our system, would exhibit them
as positively ludicrous were it not for the serious mischiefs to
which, if tolerated, they must inevitably lead -- mischiefs which
should characterize those pretensions as fatal to the inherent and
necessary powers of self-preservation and internal government in
the states; as at war with the interests,
Page 61 U. S. 322
the habits and feelings of the people, and therefore to be
reprobated and wholly rejected. For myself, I can only say that to
whatsoever point they may, under approbation here or elsewhere,
have culminated, they never can offer themselves for my
acceptation, but they must encounter my solemn rebuke.
MR. JUSTICE CAMPBELL dissenting:
I dissent from the judgment of the Court in this cause and from
the opinion delivered by the judges composing a majority of the
Court.
The judgment of the district court affirms that the court had no
jurisdiction as a court of admiralty, under the Constitution and
laws of the United States, in a cause of collision arising in
Wilcox County in the State of Alabama between steamboats navigating
the Alabama River. The Alabama River flows entirely within the
state, and discharges itself into the Mobile River, and through
that and the Mobile Bay connects with the Gulf of Mexico. The
collision occurred two hundred miles above the ebb and flow of the
tide, and on a river upon which no port of entry or delivery before
that time had been established. This Court decides that the
judgment shall be reversed and that the district court shall take
cognizance of the cause, against its own sense of obligation and
duty.
It is my opinion that this Court claims a power for the district
court not delegated to the federal government in the Constitution
of the United States, and that Congress, in organizing the
judiciary department, have not conferred upon any court of the
United States. That this Court has assumed a jurisdiction over a
case only cognizable at the common law and triable by a jury, and
that its opinion and judgment contravene the authority and doctrine
of a large number of decisions pronounced by this Court and by the
circuit courts after elaborate arguments and mature deliberation,
and which for a long period have formed a rule of decision to the
Court and of opinion to the legal profession; and that no other
judgment of this Court affords a sanction to this.
23 U. S. 10 Wheat.
428;
32 U. S. 7 Pet.
324;
36 U. S. 11 Pet.
175;
37 U. S. 12 Pet. 72;
46 U. S. 5 How.
441;
47 U. S. 6 How.
344; 2 Gall, 398;
The Anne, 1 Mas. 109; 1 Bald. 544.
The judicial power of the United States extends to all cases in
law and equity arising under the Constitution and laws of the
United States, and treaties made or which shall be made under their
authority -- to all cases of admiralty and maritime jurisdiction.
Whatever other jurisdiction is allowed to the judiciary department
is particular in its nature, depending upon the character or status
of the persons or communities
Page 61 U. S. 323
who are parties to the controversy, and not upon the subject
matter. This classification of the cases to which the judicial
power of the United States should extend among courts of law,
equity, and of admiralty and maritime jurisdiction refers to a
division recognized in the jurisprudence of all the states that
were parties to the federal compact, and is intimately related to
the constitutional history of the colonies and of the mother
country. Neither at the Declaration of Independence by the Colonies
nor when the federal Constitution was adopted was there a body of
municipal law common to the states, nor a uniform system of
judicial procedure in use in their courts. Until the Constitution
was framed, the states preserved their sovereignty, freedom, and
independence and every power, jurisdiction, and right, which had
not been expressly delegated to the United States in Congress
assembled.
Whatever reference is made in the federal Constitution to any
existing system of law or any modes of judicial proceeding as the
basis of a distribution of power and authority relates to the
system thus recognized as existing in the several states as it was
received from England.
A portion of that judicial system was esteemed of such vital
importance to the liberty of the citizen that it was incorporated
into the Constitution of the United States and placed above the
reach of the authority of any department of the federal government.
The sections of the Constitution
"That no person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or indictment of
the grand jury; that, in all criminal prosecutions, the accused
shall enjoy the right of trial by an impartial jury of the state
and district wherein the crime shall have been committed [and] be
informed of the nature and cause of his accusation;"
"that in suits at common law, when the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved;" "that no person shall be deprived of life, liberty, or
property, without due process of law," and others of a like kind
identify the men of the Revolution as the descendants of ancestors
who had maintained for many centuries a persevering and magnanimous
struggle for a constitutional government in which the people should
directly participate and which would secure to their posterity the
blessing of liberty. The supremacy of those courts of justice that
acknowledged the right of the people to share in their
administration and directed their administration according to the
course of the common law in all the material subjects of litigation
-- of that common law which sprung from the people themselves and
is legitimate by that highest of all sanctions, the consent of
those
Page 61 U. S. 324
who are submitted to it -- of that common law, which resulted
from the habitual thoughts, usages, conduct, and legislation, of a
practical, brave, and self-relying race -- was established in
England and in the United States only by their persevering and
heroic exertions and sacrifices. Magna Charta, from which a portion
of this Constitution was extracted, was, according to Lord
Brougham, "a declaration of existing and violated rights." It was
renewed thirty times. To preserve its authority, it was read in
churches, published four times a year in the county courts,
sustained by force of arms, and when violated, the commons
vindicated it by the infliction of exemplary punishment upon the
guilty authors. A delinquent King at one time was required to
imprecate the wrath of Heaven on those who transgressed it. The
archbishop and bishops, appareled in their official robes, with
candles burning,
"did excommunicate, accurse, and from the threshold of the
church cut off all those who, by any art or device, shall violate,
break, lessen, or change, secretly or openly, by deed, word, or
counsel, against it in any article whatsoever, and all those that
against it shall make statutes, or observe them being made, or
shall bring in customs, or keep them when they be brought in, and
the writers of such statutes, and also the counselors and
executioners of them, and all those that shall presume to judge
according to them."
The old historian who describes this solemn ceremony says
"that when this imprecation was uttered, and when the candles
extinguished had been hurled upon the ground, and the fumes and
stench rose offensive to the nostrils and eyes of those who
observed it, the archbishop cried, 'Even so let the damned souls be
extinguished, smoke, and stink, of all who violate this charter or
unrighteously interpret it.'"
The reign of Richard II was an epoch to be remembered with
interest and studied with care by those concerned in administering
the constitutional law of England or the United States. A formal
complaint was made by the Commons of defects in the administration,
as well about the King's person and his household as in his courts
of justice, and redress was demanded. Measures were taken for
placing the judicial institutions of England upon a solid
constitutional foundation and to exclude from the realm the odious
systems of the continent. The first of the enactments was directed
against the usurpations of the great military officers, who
administered justice by virtue of their seignoral powers -- the
Lords' Constable and the Earl Marshal. The acts of 8th and 13th
Richard II provide that
"Because the Commons do make a grievous complaint that the court
of the Constable and Marshal have accroached
Page 61 U. S. 325
to them, and do daily accroach, contracts, covenants,
trespasses, debts, detinues, and many other actions pleadable at
the common law in great prejudice to the King and to the great
grievance and oppression of the people,"
therefore they were prohibited, and their jurisdiction confined
"to contracts and deeds of arms without the realm" and "things that
touch more within the realm which cannot be determined and
discussed by the common law."
The Lord High Admiral received a similar rebuke. The preamble of
the Act of 13 Richard II recites,
"That complaints had arisen because Admirals and their deputies
hold their sessions within divers places of the realm, accroaching
to them greater authority than belonged to their office, to the
prejudice of the King &c."
It was declared that the Admiral should not meddle with anything
done within the realm, but only with things done upon the sea, as
had been used in the time of Edward III. But this did not suffice
to restrain the accroaching spirit of that feudal lord and his
deputies.
Two years after, the Parliament enacted
"That the court of admiralty hath no manner of cognizance,
power, nor jurisdiction of any manner of contract, plea, or
quarrel, or of any other thing done or rising within the bodies of
counties, either by land or water, and also with wreck of the sea;
but all such manner of contracts, pleas, and quarrels, and all
other things rising within the bodies of counties, as well by land
as by water as aforesaid, and also wreck of the sea, shall be
tried, termined, discussed, and remedied by the laws of the land,
and not before, nor by the Admiral or his lieutenant, in no manner.
Nevertheless, of the death of a man and of a mayhem done in great
ships, being and hovering in the main stream of the great rivers,
beneath the points of the same rivers, and in no other place of the
same rivers, the Admiral shall have cognizance."
In the sixteenth year of the reign of Richard II, the rule of
the Roman chancery, like that of the Lords' Constable, Marshal, and
Admiral, was banished from England. In that year it was enacted
that
"Both those who shall pursue or cause to be pursued, in the
court of Rome or elsewhere, any processes, or instruments, or other
things whatsoever which touch the King against his crown and
regality or his realm shall be outlawed and placed out of the
King's protection."
In the following reign the accroaching spirit of the courts of
admiralty received a further rebuke.
Upon the prayer of the Commons, the statutes of Richard II were
confirmed, and a penalty was inflicted upon such as should maintain
suits in the admiralty, contrary to their spirit.
This body of statute law served in a great degree to check
Page 61 U. S. 326
the usurping tendencies of these anomalous jurisdictions, and to
prevent in a measure the removal of suits triable at the common law
ad aliud examen, and to be discussed
per aliam
legem. It placed upon an eminence the common law of the realm,
and enabled the Commons to plead with authority against other
encroachments and usurpations upon the general liberty. But though
a foreign law and despotism were not allowed to enter the kingdom
through the courts martial, ecclesiastical, or admiral, the
perversion of judiciary powers to purposes of oppression was not
effectually prevented. The courts of the Star Chamber and of High
Commission, originally limited to specific objects, "assumed power
to intermeddle in civil causes and matters only of private interest
between party and party, and adventured to determine the estates
and liberties of the subject, contrary to the law of the land and
the rights and privileges of the subject," and "had been by
experience found to be an intolerable burden, and the means to
introduce an arbitrary power and government." Among the cases of
jurisdiction claimed by the Star Chamber were those between
merchant strangers and Englishmen, or between strangers, and for
the restitution of ships and goods unlawfully taken, or other
deceits practiced on merchants.
One of the most practiced proctors of this Court has left his
testimony:
"That since the great Roman Senate, so famous in all ages and
nations as that they might be called
jure mirum orbis,
there hath no court come so near them, in state, honor, and
adjudication, as this."
But, by the 16th of Charles I it was enacted, both in respect of
this and the High Commission court,
"That from henceforth no court, council, or place of judicature
shall be erected, ordained, constituted, or appointed which shall
have, use, or exercise the same or like jurisdiction as is or hath
been used, practiced, or exercised"
in those courts.
But the statute did not terminate with this. The patriot leaders
of that time, reviewing in the preamble to the act the various
parliamentary enactments in regard to the legal institutions of
England and reciting those declarations of the public liberties
which had extended over a period of four hundred years, proceeded
to add another. It was solemnly enacted
"That neither his Majesty, nor his Privy Council have or ought
to have any jurisdiction, power, or authority by English bill,
petition, articles, libel, or any other arbitrary whatsoever, to
examine or draw in question, determine, or dispose of the lands,
tenements, hereditaments, goods, and chattels, of any of the
subjects of this realm, but that the same ought to be tried and
determined in the ordinary courts of justice and by the ordinary
course of the law. "
Page 61 U. S. 327
This selection of a few sections from various English statutes,
and the historical facts I have mentioned, is designed to
illustrate the intensity and duration of the contest which resulted
in placing the judiciary institutions of England on their existing
foundation. In the midst of that contest, the settlements were
formed in America in which those institutions were successfully
planted.
They have been incorporated into the Constitution of the United
States, and prevail from the Atlantic Ocean to the Pacific, and
from the Lakes to the Gulf of Mexico. These statutes show how the
courts martial, ecclesiastical, admiral, and courts proceeding from
an arbitrary royal authority were either limited or suppressed.
The inquiry arises how would a case like that before this Court
have been decided in England, either at the period of the
Declaration of Independence or at the adoption of the Constitution
of the United States, in the court of admiralty?
In 1832, a question arose in that court whether a cause of
collision, arising between steam vessels navigating the River
Humber, a short distance from the sea, within the ebb and flow of
the tide, within the port of Hull, below the first bridges, when
the tide was three-fourths flood, was cognizable by the court. The
judge of the admiralty, an exact and conscientious judge,
answered:
"Since the statutes of Richard II and of Henry IV, it has been
strictly held that the court of admiralty cannot exercise
jurisdiction in civil causes arising
infra corpus
comitatus."
I cite this opinion not simply as evidence of the law in 1832,
but also as affording authentic evidence of the historical fact it
enunciates.
The Public Opinion, 2 Hagg. 399
I proceed now to inquire of the admiralty jurisdiction as
exercised by the courts of vice-admiralty in the colonies and in
the United States before the adoption of the Constitution.
The jurisdiction included four subjects, and a separate
examination of each title of jurisdiction will shed light upon the
discussion. These are prize, breaches of the acts of navigation,
revenue, and trade, crimes and misdemeanors on the high seas, and
cases of civil and maritime jurisdiction.
The prize jurisdiction originated in a special commission from
the King, and is usually conferred at the commencement of
hostilities, upon the Admiral and his subordinates. It is a part of
the ancient jurisdiction of the court as thus derived. Congress, by
the Articles of Confederation, were authorized to appoint courts of
appeal to determine finally upon cases of that kind, and no doubt
has ever been expressed that this branch of jurisdiction, under the
Constitution and acts of Congress
Page 61 U. S. 328
since the adoption of the Constitution, is vested in the
district courts of the United States.
The Hunter, 1 Dod.
483;
Le Coux v. Eden, 2 Doug. 613;
54 U. S. 13 How.
498; 2 Gall. 325;
ib. 20.
The admiralty court of Great Britain and the vice-admiralty
courts of the colonies were vested with jurisdiction over cases for
the violation of a series of statutes for the regulation of trade
and revenue in the colonies. The origin and extent of this
jurisdiction are explained in the case of
The Columbus,
decided in the British admiralty in 1789, on an appeal from the
vice-admiralty court of Barbados. The learned judge of that court
said:
"The court of admiralty derives no jurisdiction in causes of
revenue from the patent of the judge, or from the ancient customary
and inherent jurisdiction of the prerogative of the Crown in the
person of its Lord High Admiral and exercised by his lieutenant.
Not a word is mentioned of the King's revenue, which seems to have
been entirely appropriated to the Court of Exchequer, which is both
a court of law and equity. If, therefore, there is any inherent
prerogative right of judging of seizures upon the sea for the
rights and dues of the Crown, whether of peace or of war, as in the
right of prize and reprisal, that prerogative jurisdiction is put
in motion by special commission or by act of Parliament. The first
statute which places judgment of revenue in the plantations with
the courts of admiralty is the 12th of Charles II, ch. 18, sec. 1,
which act has been followed by subsequent statutes."
This lucid opinion has not been cited in any previous discussion
of the subject in this Court, from the fact that it is not
published in the regular series of the admiralty reports. 2
Coll.Jur. 82; 2 Dod.Adm. 352.
By an act of the 22d and 23d Charles II to regulate the trade of
the plantations, suits were authorized for breaches of its
enactments "in the court of the High Admiral of England, or of any
of his vice-admirals," or in any court of record. The Acts of 7th
and 8th of William III, 6th George II, 4th, 5th, 6th, 7th, and 8th,
of George III, confer plenary jurisdiction upon the same courts in
cases of navigation, trade, and revenue in the colonies, and the
later statutes extend their authority to seizures upon the land as
well as water. The reason for this jurisdiction, as given in the
acts themselves and repeated by British writers, is not creditable
to the colonists; but, as Justice Chase has assigned in this Court
a similar reason for the acts of Congress on the same subject, no
offense can be taken for repeating the British opinion. Reeves, in
his History of Navigation and Shipping, says: "The laws of
navigation were nowhere disobeyed and contemned so openly as in New
England;"
Page 61 U. S. 329
"that, in minds tempered as theirs were, obedience and
disobedience were much the same thing to the interests of the
mother country;" "that the contraband trade was carried on with
skill and courage;" "that the exclusion of all but native subjects
of Great Britain from serving on juries afforded no
corrective;"
"that for the purpose of securing the execution of the acts of
trade and navigation, the government proceeded to institute courts
of admiralty, and to appoint persons to the office of attorney
general in those plantations where such courts and such offices had
never before been known, and from this time there seems to have
been a more general obedience to the acts of trade and
navigation."
Reeves' Hist. 79, 90; Stokes' Const. Col. 360-361
The first of these acts was passed when the colonial settlements
in New England and Virginia were in their infancy and before those
in the remaining colonies had been fairly commenced. The
jurisdiction was familiar to the colonists, and these acts explain
the origin of the clause of the Judiciary Act of 1789 on the same
subject. The Judiciary Act confers on the district courts
"cognizance of all civil causes of civil and maritime
jurisdiction, including all seizures under laws of impost,
navigation, or trade, of the United States, when the seizures are
made on waters which are navigable from the sea by vessels of ten
or more tons burden, within their respective districts, as well as
upon the high seas."
It is difficult to comprehend on what principle the court can
construe the grant of jurisdiction in this act over cases of
seizure under the law of impost and trade upon navigable waters, to
an extension of the civil jurisdiction of the admiralty to the same
localities. The admiralty jurisdiction in cases of seizure is a
special jurisdiction not belonging to the original constitution of
the courts of admiralty, and this act treats it as such. And so
this Court, until the revolution in its doctrines in these latter
years, uniformly treated it. The long and painful discussions from
Delovio v. Boit to the
New Jersey Navigation Case
are without meaning on any other hypothesis. If the jurisdiction in
both classes of cases had been supposed to rest on the same
foundation, the whole controversy would have been settled by the
case of
La Vengeance, reported in
3
U. S. 3 Dall. 297.
The civil and maritime jurisdiction of the vice-admiralty courts
extended to the same subjects and was exercised under the same
limitations in the colonies as in Great Britain. "Upon the
establishment of colonial governments," says a learned judge of one
of those courts,
"it was deemed proper to invest the governors with the same
civil and maritime jurisdiction, and therefore it became usual for
the Lord High Admiral or the
Page 61 U. S. 330
Lords Commissioners to grant a commission of vice-admiral to
them."
The office thus conferred on the governor was precisely the same
with that of the vice-admirals in England, and was confined to that
civil and maritime jurisdiction which was the original branch of
his authority. Stewart's V.Ad. 394, 405. These courts were
subordinate to the admiralty court of England, and, until the late
reign of William IV, it received appeals from them. 1 Dod.Adm. 381.
The incompatibility of the criminal jurisdiction of the Admiral on
the high seas with the legal Constitution of England, was declared
and corrected by the 28 H. VIII, ch. 15.
Hawkins, in his Pleas, says that, it being inconsistent with the
liberties of the nation that any man's life should be taken away,
unless by the judgment of his peers or the common law of this land,
that act was passed. 1 Hawk.Pl. 251. And the same principle is
embodied in the Constitution of the United States, with much
enlargement; for the extension of the admiralty jurisdiction under
the laws, professedly of navigation and trade, for the punishment
of offenses and misdemeanors, in the reign of George III, was a
prominent cause of the American Revolution. In 1768, John Adams,
the Coke of the Revolution, prepared for the citizens of Boston
instructions to their representatives, Otis, Cushing Samuel Adams,
and Hancock. The citizens said to their representatives, that,
"next to the revenue itself, the late extensions of the
jurisdiction of the admiralty are our greatest grievance. The
American courts of admiralty seem to be forming by degrees into a
system that is to overturn our constitution, and to deprive us of
our best inheritance, the laws of the land. It would be thought in
England a dangerous innovation, if the trial of any matter on land
was given to the admiralty."
They refer to the statutes passed in the reign of George III,
and declare that they violate Magna Charta; and they conclude by an
earnest recommendation to their representatives,
"
by every legal measure to endeavor that the power of these
courts may be confined to their proper element, according the
ancient English statutes, and that they petition and
remonstrate against the late extensions of their jurisdictions, and
they doubt not that the other colonies and provinces, who suffer
with them, will cheerfully harmonize with them in any justifiable
measures of redress."
Other testimony of the same kind might be adduced to show what
the opinions of the colonists were as to the legitimate extent of
the admiralty jurisdiction in the colonies. The journals of the
First Congress 1774 render this unnecessary. They are replete with
proof of the pervading sentiment in the British colonies.
Page 61 U. S. 331
That Congress declare that
"The respective colonies are entitled to the common law of
England, and to the benefit of such English statutes as existed at
the time of the colonization, which had been found suitable to
their situation."
In their address setting forth the cause and necessity for their
taking up of arms, they allege that statutes have been passed for
extending the jurisdiction of courts of admiralty beyond their
ancient limits. In the several addresses to the inhabitants of
Great Britain, to the people of the colonies, to the people of
Ireland, and to the King, the enlarged authority of those courts,
their interference with the common law right of trial by jury, and
their offensive use of the laws and course of proceeding adopted
from Roman tyrants are distinctly reprehended. 1 Jour.Congr. 16,
28, 32, 47, 101
There can be no room for doubt that the statesmen and jurists
who composed the Congress of 1774 regarded the limits of the courts
of admiralty as settled by the statutes of Richard II, Henry IV,
Henry VIII, and the early acts of navigation and trade, and that
the enlargement of this jurisdiction was such a wrong as to justify
a resort to arms. Their declarations bear no other interpretation,
and the admiralty system of the states before the Constitution was
administered upon this opinion. Bee's Adm. 419, 433; 1 Dall.
33.
Before examining the constitutional history and Constitution of
the United States, it will not be irrelevant to ascertain the
origin of the courts of admiralty in France and their jurisdiction
at the period of the adoption of the Constitution. The Admiral was,
in France, as in England, a great feudatory, with the seignoral
privilege of administering justice by judges of his appointment.
There were there, as in England, contests with other officers in
regard to jurisdiction, and the royal authority was interposed to
settle them. In 1627, the office, with its dignity and privileges,
was abolished; in 1668, it was revived by Louis XIV, and conferred
upon a member of the royal family; in 1791, it was suppressed, and
its judicial establishment disappeared from history, other courts
and authorities being established to perform their functions. The
ordinances of Louis XIV enlarged and defined the jurisdiction of
the courts of the Admiral, to promote the convenience of commerce,
to determine the unsettled jurisprudence concerning maritime
contracts, to define the duties of seamen, the powers of the
officers, and to provide an adequate police for the ports, harbors,
and the coasts of the sea.
Their jurisdiction extended to a number of cases of contract
specified in the ordinance, and conferred the ancient jurisdiction
over piracies and thefts at sea, the desertion of crews, and
Page 61 U. S. 332
generally of all crimes, offenses, and trespasses, committed on
the sea, in ports, roadsteads, and havens, and the shores within
the ebb and flow of the tide.
The police and navigation of the rivers of France were not
placed under the admiralty, but were regulated by other officers
under other ordinances. Without supposing that the ordinances of
Louis XIV have any authority on this subject, it is yet certain
that a cause of collision arising upon one of the rivers of France
above the ebb and flow of the tide was not cognizable before the
admiralty of France in 1789 or for centuries previously.
The judicial power of the United States was organized to
comprehend all cases that might properly arise under the
Constitution, laws, and treaties of the United States, and, in
addition, cases of which, from the character of the parties, the
decision might involve the peace and harmony of the Union. This
principle was accepted without dissent among the framers of the
Constitution. The clause "all cases of admiralty and maritime
jurisdiction" appears in the draft of the Constitution imputed to
Charles Pinckney, and submitted at a very early stage of the
session of the Convention. It was reported by the committee of
detail in their first report, and was adopted without debate. In
one of the sittings, in an incidental discussion, Mr. Wilson, of
Pennsylvania, remarked:
"
That the admiralty jurisdiction ought to be given wholly to
the national government, as it related to cases not within the
jurisdiction of a particular state, and to a SCENE in which
controversy with foreigners would be most likely to
happen."
2 Mad.De. 799. No other observation in the Convention
illustrates this clause.
The judiciary clause is expounded in the numbers of the
Federalist, by Alexander Hamilton.
He says, the judicial power extends
"1st, to all those cases which arise out of the laws of the
United States, passed in pursuance of their just and constitutional
powers of legislation; 2d, to all those which concern the execution
of the provisions expressly contained in the Articles of Union; 3d,
to all those in which the United States are a party; 4th, to all
those which involve the peace of the Confederacy, whether they
relate to the intercourse between the United States and foreign
nations, or to that between the states themselves; 5th, to all
those which originate on the high seas and are of admiralty or
maritime jurisdiction, and lastly to all those in which the state
tribunals cannot be supposed to be unbiased and impartial."
In regard to the 5th class, he says:
"The most bigoted idolizers of state authority have not thus far
shown a disposition to deny the national judiciary the cognizance
of maritime
Page 61 U. S. 333
causes. These so generally depend on the laws of nations, and so
commonly affect the rights of foreigners, that they fall within the
considerations relative to the public peace. The most important of
them are, by the present Confederation, submitted to federal
jurisdiction."
Similar remarks are to be found in the debates in various of the
conventions of the states which adopted the Constitution, as
incidentally occurring. In none of the Conventions was the
judiciary clause of the Constitution considerately examined except
in Virginia, and in the convention of Virginia no objection was
made to this clause. Gov. Randolph said there that
"Cases of admiralty and maritime jurisdiction cannot with
propriety be vested in particular state courts. As our national
tranquility, reputation, and intercourse with foreign nations, may
be affected by admiralty decisions, as they ought therefore to be
uniform, and as there can be no uniformity if there be thirteen
distinct independent jurisdictions, the jurisdiction ought to be in
the federal judiciary."
Mr. Madison, in a luminous exposition of the article, expressed
a similar opinion. He said:
"The same reasons supported the grant of admiralty jurisdiction
as existed in the grant of cognizance of causes affecting
ambassadors and foreign ministers. . . . As our intercourse with
foreign nations will be affected by decisions of this kind, they
ought to be uniform."
In the same speech, this statesman affirmed
that all
controversies directly between citizen and citizen will still
remain with the local courts. And after the Constitution was
adopted, we find Chief justice Jay, in analyzing the judicial power
of the United States and assigning reasons for the grant, says of
this portion of it,
"Because, as the seas are the joint property of nations, whose
rights and privileges relative thereto are regulated by the law of
nations and treaties, such cases necessarily belong to a national
jurisdiction."
The instance jurisdiction of the court, now the object of such
ambition and interest and involving questions so threatening, was
hardly referred to by the friends of the Constitution, and not an
alarm was expressed by any of its vigilant and jealous opponents.
The prize jurisdiction of the court -- that which concerned the
foreign relations of the Union in war or in peace and which is so
intimately related to the honor and dignity of the country -- was
in the minds of all those statesmen who referred to the
subject.
It did not enter the imagination of any opponent of the
Constitution to conceive that a jurisdiction which for centuries
had been sternly repelled from the body of any county could, by any
authority, artifice, or device, assume a jurisdiction through the
whole extent of every lake and watercourse within the
Page 61 U. S. 334
limits of the United States. The collision described in the
libel of the appellants occurred at a place which in 1789 formed a
part of the State of Georgia. Had a similar cause then arisen, I
can affirm with perfect safety that not an individual member of any
Convention, whether state or federal, who was concerned in the
making or the ratifying of the Constitution would have admitted the
existence of an admiralty jurisdiction over the case. Such being
the facts, I affirm that no change in the opinion of men nor in the
condition of the country, nor any apparent expediency, can render
that constitutional which those who made the Constitution did not
design to be so.
"If any of the provisions of the Constitution are deemed
unjust," said the Chief justice in
Scott v.
Sandford, 19 How. 393,
"there is a mode prescribed in the instrument itself by which it
may be amended; but while it remains unaltered, it must be
construed as it was understood at the time of its adoption. It is
not only the same in words, but the same in meaning, and delegates
the same powers to the government, and secures the same rights and
privileges to the citizen, and as long as it continues to exist in
its present form, it speaks not only in the same words, but with
the same meaning with which it spake when it came from the hands of
its framers and was voted on and adopted by the people of the
United States."
That the framers of the Constitution designed to secure to the
federal government a plenary control over all maritime questions
arising in their intercourse with foreign nations, whether of peace
or war, which assumed a juridical form through courts of its own
appointment is more than probable from the instrument and the
contemporary expositions I have quoted. This was the primary and
designed object of the authors of the Constitution in granting this
jurisdiction. It is likewise probable that the jurisdiction which
had been exercised from the infancy of the colonies to the reign of
George III by courts of admiralty under laws of navigation, trade,
and revenue was considered as forming a legitimate branch of the
admiralty jurisdiction. Such was the opinion of the First Congress
under the Constitution, and it has been confirmed in this Court.
3 U. S. 3 Dall.
397;
6 U. S. 2 Cranch
405;
8 U. S. 4 Cranch
443;
43 U. S. 2 How.
210. If the instance jurisdiction of the court was at all
remembered, the reminiscence was not of a nature to create alarm.
The cases for its employment were few and defined. Those did not
depend upon any purely municipal code, nor affect any question of
public or political interest. They related for the most part to
transactions at a distance, which did not involve the interests nor
attract the observation of any considerable class of persons. No
one could imagine that this jurisdiction,
Page 61 U. S. 335
by the interpretation of those who were to exercise it, could
penetrate wherever a vessel of ten tons might enter within any of
the states.
The question arises what are the power and jurisdiction claimed
for the courts of the United States by this reversal of the
judgment of the District Court of Alabama?
The Supreme Court requires that court to take cognizance of
cases of admiralty and maritime jurisdiction that arise on lakes
and on rivers, as if they were high seas. Dunlap, defining the
constitutional jurisdiction in 1835, said, that
"it comprehends all maritime contracts, torts, and injuries. The
latter branch is necessarily bounded by locality; the former
extends over all contracts, whensoever they may be made and
executed or whatever may be the form of the stipulation which
relates to the navigation, business, or commerce of the sea."
Dunlap's Pr. 43.
This was the broad pretension for the admiralty set up by Mr.
Justice Story in
Delovio v. Boit in 1815, under which the
legal profession and this Court staggered for thirty years before
being able to maintain it. The definition to be deduced from the
present decision deprives that of any significance. That affords no
description of the subject.
The definition under this decree, if carried to its logical
extent, will run thus:
"That the admiralty and maritime jurisdiction of the courts of
the United States extends to all cases of contracts, torts, and
injuries which arise in or concern the navigation, commerce, or
business of citizens of the United States, or persons commorant
therein, on any of the navigable waters of the world."
I proceed now to examine the jurisprudence of the courts of the
United States, to ascertain the various stages in the progress to
the goal which has been today attained. The tendency of opinion in
the first years of the existence of the Union was to limit the
admiralty jurisdiction according the Constitution of the British
court of admiralty. Justice Washington so declared in 1806; and his
learned successor maintained the same doctrine. Bald. 544.
This opinion was assailed by justice Story in
Delovio v.
Boit, 2 Gall. 395, in the year 1815.
The question of jurisdiction arose on a libel founded on a
policy of insurance, and the jurisdiction of the court was
sustained. I believe I express a general, if not universal, opinion
of the legal profession, in saying that this judgment was
erroneous. I understand justice Curtis to intimate the existence of
such an opinion in the
Gloucester Insurance Company v.
Younger, 2 Curt. 322.
Page 61 U. S. 336
The opinion of Justice Story in the cause of
Delovio v.
Boit, is celebrated for its research, and remarkable, in my
opinion, for its boldness in asserting novel conclusions and the
facility with which authentic historical evidence that contradicted
them is disposed of. The examination of the English authorities
resulted in the following conclusions.
In the construction of the statutes of Richard II and Henry IV,
"the admiralty has
uniformly and
without
hesitation," he says,
"maintained that they were never intended to abridge or restrain
the rightful jurisdiction of the court; that they meant to take
away any pretense of entertaining suits upon contracts arising
wholly upon land, and referring solely to terrene affairs, and upon
torts or injuries which though arising in ports, were not done
within the ebb and flow of the tide, and that the language of these
statutes, as well as the manifest object thereof, as stated in the
preambles and in the petitions on which they were founded, is fully
satisfied by this exposition. So that, consistently with the
statutes, the admiralty may still exercise jurisdiction: 1. over
torts and injuries upon the high seas, and in ports within the ebb
and flow of the tide, and in great streams below the first bridges;
2. over all maritime contracts arising at home or abroad; 3. over
matters of prize and its incidents."
In regard to the conclusions of the courts of common law, he
says:
That the common laws interpretation of these statutes abridges
the jurisdiction to things wholly done on the sea. 2. That the
common law interpretation of these statutes is indefensible upon
principle, and the decisions founded upon it are inconsistent and
unsatisfactory. 3. That the interpretation of the same statutes
does not abridge any of its ancient jurisdiction, but leaves to it
cognizance of all maritime contracts, torts, injuries, and offenses
upon the high seas, and in ports as far as the ebb and flow of the
tide. 4. That this is the true limit of the admiralty jurisdiction
on principle. In regard to the case of the collision between ships
and steamboats, we have the authoritative declaration of the judge
of the admiralty. I have cited it to show that this statement of
the English law is not accurate. And Sir John Nicholl, in the same
court, in 3 Hagg. 257, 283, differs materially from other portions
of the same statement. It may be true that the English court of
admiralty, with the approbation of the King, took cognizance of
causes arising within the limits of England, in despite of the
prohibition by Parliament. But the great charter, and other
statutes of importance to the liberties of the realm, were also
violated by the same authority. It is also true that the twelve
judges of England, and the Attorney General,
Page 61 U. S. 337
in the presence of the King and the Privy Council, after solemn
debate, in 1632, signed an agreement to concede to the admiralty a
larger jurisdiction. But such an act was illegal, and by the judges
extrajudicial. Ten of those judges, four years later, presided in
the case against Hampden for ship money; the attorney general was
the inventor of the writ for its levy; the Privy Council was that
which Strafford and Laud had organized to rule England without a
Parliament, and which was made hateful by its arbitrary and violent
proceedings. And the contract itself was denounced as
unconstitutional by Lord Coke who, but a few years before, had
prepared the Petition of Right in which the legal Constitution of
England was embodied. For all contracts, pleas, and quarrels, made
and done upon a river, haven, or creek, within the realm of
England, he said,
"The Admiral, without question, hath not jurisdiction, for then
he should hold plea of things done within the body of the county,
which are triable by verdict of twelve men, and merely determinable
by the common law, and not within the admiralty and by the civil
law, for that were to change and alter the law in such cases."
4 Co.Inst. 135. And finally, in 1640, to close the door upon all
such attempts of the King and his Privy Council, the fifth section
of the act "For the regulating of the Privy Council, and for taking
away the court commonly called the Star Chamber," which I have
already quoted, was adopted.
The great and controlling question of contest in this long
period of contest was as to the supremacy of the Parliament, and a
very important form of that question related to its organization of
the courts and its regulation of their jurisdiction. When the
supremacy of Parliament had been established by the Revolution, its
enactments which had defined the constitutional limits of the
courts of judicature were no longer opposed or contradicted. The
error of the opinion in
Delovio v. Boit on this subject,
in my judgment, consists in its adoption of the harsh and
acrimonious censures of discarded and discomfited civilians on the
conduct of the great patriots of England, whose courage, sagacity,
and patriotism secured the rights of her people, as any evidence of
historical facts.
But the royal ordinances of Louis XIV unquestionably afford that
support to the decision and opinion in that case which cannot be
found in the English law. The policy of insurance is enumerated
among the contracts submitted to the French courts of admiralty,
and the formulary in which the jurisdiction as to torts and
offenses is expressed in the opinion is a free translation from the
French ordinances. I refer to the opinion in the case of
Delovio v. Boit as the first and most complete
Page 61 U. S. 338
exposition of the system which its author afterwards introduced
as the doctrine of the Court in
The Thomas Jefferson in
1825;
Orleans v. Phoebus in 1837; and
Coombs'
Case in 1838, and which was more fully sanctioned in the
opinions of the Court in subsequent cases, and because he defends
in that opinion the jurisdiction of the admiralty upon grounds
which are not to be reconciled with the opinion of the Court in the
present cause.
In
The Steamboat Orleans v.
Phoebus, 11 Pet. 173, decided in 1835, the Court
said:
"The true test of jurisdiction is whether the vessel be engaged
substantially in maritime navigation or in interior navigation and
trade, not on tidewaters. In the latter case, there is no
jurisdiction."
In
United States v.
Coombs, 12 Pet. 73, the direct question arose as to
the limits of this jurisdiction. The Court answered, as in former
cases,
"That in cases purely dependent upon the locality of the act
done, it is limited to the sea and to tidewaters as far as the tide
flows, and that it does not reach beyond high water mark. It is the
doctrine repeatedly asserted by this Court, and we see no reason to
depart from it."
In
Waring v.
Clark, 5 How. 441, the same question was again
considered by the Court. The claimants of the largest extent of
jurisdiction for the Court expressed their opinion through MR.
JUSTICE WAYNE. He cited the former decisions with approbation and
said that the question was no longer open in the Court; "that it
was
res judicata in this Court." Again, in 1848, MR.
JUSTICE NELSON, expressing the views of the four judges who
concurred with JUSTICE WAYNE in the former case,
New Jersey
Steam Navigation Company v. Merchants' Bank, 6 How.
344, disclaimed jurisdiction over "contracts growing out of the
purely internal commerce of the state, as well as commerce beyond
tidewaters," stating that "they are generally domestic in their
origin and operation, and could hardly have been intended to be
drawn within the cognizance of the federal courts." I think it is
manifest that had the case before the Court been produced before it
ten years ago, it would have been unanimously dismissed for the
want of jurisdiction. From the decision in
The Thomas
Jefferson in 1825 to that of
New Jersey Navigation Company
v. Merchants' Bank in 1848, two generations of judges have
agreed to doctrines wholly irreconcilable with the judgment now
given.
In 1851, the case of
The Genesee Chief v.
Fitzhugh, 12 How. 443, came before the Court. It
was a cause of collision between steamboats navigating Lake Ontario
and engaged in the commerce of different states. The district court
exercised jurisdiction under the Act of February, 1845, 5 Stat.
726,
Page 61 U. S. 339
which provided for such cases on the lakes and navigable waters
connected with them in the same manner as if the same vessels had
been employed in navigating the high seas or on tidewaters within
the admiralty jurisdiction, with a proviso that all the issues of
fact might be tried by a jury.
The Court decided that the act was not a regulation of commerce
between the states, and that the jurisdiction conferred on the
district court could not be sustained as a regulation of commerce
among the states, and that the judicial power of the United States
could not be extended by such legislation. The Court, after this
sound constitutional argument, proceed to say:
"If the meaning of these terms in the Constitution was now for
the first time brought before this Court, there could, we think, be
no hesitation in saying that the lakes and their connecting waters
were embraced in them. These lakes are in truth inland seas.
Different states border on them on one side and a foreign nation on
the other; a great and growing commerce between different states
and a foreign nation, which is subject to all the incidents and
hazards that attend commerce on the ocean. Hostile fleets have
encountered in them, and prizes have been made, and every reason
which exists for the grant of admiralty jurisdiction to the general
government on the Atlantic seas applies with equal force to the
lakes. There is an equal necessity for the instance power, and for
the prize power of the admiralty court to administer admiralty law,
and if the one cannot be established, neither can be the
other."
All the considerations mentioned in this argument applied to the
Mississippi River in 1789, and some of them do at this time.
I have stated the entire argument of the Court upon the precise
question whether the Court had jurisdiction of the cause for damage
in that locality. The Court says,
"the only objection made to the jurisdiction is that there is no
tide in the lakes or the waters connecting them, and it is said
that the admiralty and maritime jurisdiction, as known and
understood in England and this country at the time the Constitution
was adopted, was confined to the ebb and flow of the tide."
THE CHIEF JUSTICE combats this objection to the jurisdiction of
the court in that cause, and pronounces for the Court that
tide does not form the criterion of jurisdiction. In my
opinion, the argument of the Court in favor of jurisdiction is
imposing, and also that the objection taken by the appellants, as
reported in the opinion, does not embody the strength of the
objection to the jurisdiction. To ascertain the scope of the
opinion, it is necessary to examine the argument of the Court and
the worth of the objection taken to the jurisdiction and
combated.
Page 61 U. S. 340
The lakes are certainly not seas according to the signification
of that word in the law of nations or the Admiral's commission.
They are not common highways for all nations, open to the ships of
all and exempted from the municipal regulation and control of any.
The sovereignty over them belongs to the riparian proprietors in
the same manner as over the Rhine or Rio Grande Rivers, and the
American states and British Queen have respectively courts to
administer their laws within the limits of their several titles, to
the middle of the lakes, against those who may offend against them.
The jurisdiction of the court of admiralty cannot be supported upon
the lakes as seas. But the lakes form an external maritime boundary
of the United States, and are a commercial highway, which by treaty
is common to the inhabitants of the two maritime and commercial
countries whose possessions border them. The commerce of these
countries is great and growing and exposed to depredation, and in
the absence of a navy and without defined boundaries, the police of
the states on this exposed frontier may be inefficient for the
protection of the interests of the Union. I shall not inquire
whether these considerations, or those among them which are
applicable to the River Mississippi, authorized the decisions in
The Genesee Chief v.
Fitzhugh, 12 How. 443; and
Fritz v.
Bull, 12 How. 466;
Walsh v.
Rogers, 13 How. 283. I have yielded to the
principle of
stare decisis, and have applied the decisions
as I found them when I came into this Court. But not one of these
considerations has any application to the case before this Court.
The Alabama River is not an inland sea. Its navigation was not open
to a single foreign vessel when this collision took place. No port
had been established on it by the authority of Congress. The
commerce that passes over it consists mainly of the products of the
state and the objects received in exchange at the only seaport of
the state. For its whole length it is subject to the same state
government, and its police does not involve a necessity for a
navy.
The objection noticed in the opinion of the Court in
The
Genesee Chief, as opposed in the argument against the
jurisdiction of the court, I have said does not meet the force of
the adversary opinion. In France, the domain of the Admiral was
limited to the sea, its coasts, ports, havens, and shores to the
high water mark, and his seignoral right to dispense justice was
confined to his domain. The contest there was as to the extent of
rival seignories. But in Great Britain the contest had a more
profound significance than is to be found in a controversy merely
between rival feudatories.
The Admiral's jurisdiction there had no relation to the
saltiness
Page 61 U. S. 341
or freshness of the waters, nor whether the rivers were public
or private, navigable or floatable. The question was whether
Englishmen should be governed by English laws, or "whether
contracts, pleas, and quarrels, should be drawn
ad aliud
examen, and be sentenced
per aliam legem." The
English Commons abhorred the summary jurisdiction of the courts of
civil law, their private examination of witnesses, their rejection
of a jury of the vicinage, the discretion they allowed to the
judge, and their foreign code. They erected a barrier of penal
statutes to exclude them from the body of any county, either on
land or water.
The people of the several states have retained the popular
element of the judicial administration of England and the
attachment of her people to the institutions of local
self-government. In Alabama, the "trial by jury is preserved
inviolate," that being regarded as "an essential principle of
liberty and free government." In the court of admiralty, the people
have no place as jurors. A single judge, deriving his appointment
from an independent government, administers in that court a code
which a federal judge has described as
"resting upon the general principles of maritime law, and that
it is not competent to the states, by any local legislation, to
enlarge, or limit, or narrow it."
2 Story 456.
If the principle of this decree is carried to its logical
extent, all cases arising in the transportation of property or
persons from the towns and landing places of the different states
to other towns and landing places, whether in or out of the state;
all cases of tort or damage arising in the navigation of the
internal waters, whether involving the security of persons or title
to property, in either; all cases of supply to those engaged in the
navigation, not to enumerate others, will be cognizable in the
district courts of the United States. If the dogma of judges in
regard to the system of laws to be administered prevails, then this
whole class of cases may be drawn
ad aliud examen, and
placed under the dominion of a foreign code, whether they arise
among citizens or others. The states are deprived of the power to
mould their own laws in respect of persons and things within their
limits, and which are appropriately subject to their sovereignty.
The right of the people to self-government is thus abridged --
abridged to the precise extent that a judge appointed by another
government may impose a law, not sanctioned by the representatives
or agents of the people, upon the citizens of the state. Thus the
contest here assumes the same significance as in Great Britain,
and, in its last analysis, involves the question of the right of
the people to determine their own laws and legal institutions. And
surely this objection
Page 61 U. S. 342
to the decree is independent of any consideration whether the
river is subject to tides or is navigable from the sea.
This decree derives no strength from the legislation of
Congress, but a strong argument is to be deduced from the act of
1845 in opposition to it. The learned author of the opinion in
Delovio v. Boit, and in the case of
The Thomas
Jefferson, Justice Story has the reputation of being the
author of the act. He proposed to bring under the judicial
administration of the United States cases that did not belong to
the jurisdiction of the admiralty under the authoritative
exposition of the Constitution by this Court. The first suggestion
of the feasibility of such a law is to be found in the opinion
given in the case of
The Thomas Jefferson in 1825, and is
enough to relieve this Court from the imputation of having decided
that case without a proper appreciation of the magnitude of the
question.
The act of 1845 involves the admission, that cases arising on
waters within the limits of the United States other than tidewaters
were cases at common law, and that a jury, under the Seventh
Amendment of the Constitution, must be preserved. It was framed on
the hypothesis that Congress might increase the judicial power of
the United States, so as to comprise all cases arising on, or which
related to, any subject to which its legislation extended. It is
apparent that this Court in 1847, and afterwards in 1848, when the
suits of
Waring v. Clark and
New Jersey Navigation Co.
v. Merchants' Bank were so elaborately discussed, were wholly
unconscious of the fact that this act contained a recognition of
any jurisdiction in admiralty additional to what had been
previously exercised.
The only inference that can be drawn properly from the act of
1845, in my opinion, is that Congress recognized the limit that the
decisions in the earlier cases in this Court had established for
the admiralty and maritime jurisdiction, and its own incapacity to
confer a more enlarged jurisdiction of that kind.
I have performed my duty, in my opinion, in expressing at large
my convictions on the subject of the powers of the courts of the
United States under the clause of the Constitution I have
considered.
There have been cases since I came into this Court involving the
jurisdiction of the Court on the seas and their tidewaters, the
lakes, and the Mississippi River. I have applied the law as settled
in previous decisions, in deference to the principle of
stare
decisis, without opposing any objection -- though in a portion
of those decisions the reasons of the Court did not satisfy my own
judgment. I consider that the present case carries the jurisdiction
to an incalculable extent beyond any other and all others that have
heretofore been pronounced,
Page 61 U. S. 343
and that it must create a revolution in the admiralty
administration of the courts of the United States; that the change
will produce heart-burning and discontent, and involve collisions
with state legislatures and state jurisdictions. And finally, it is
a violation of the rights reserved in the Constitution of the
United States to the states and the people.