Jackson et al. v. Steamboat Magnolia.

case of the Thomas Jefferson, in the 10th of Wheaton, p. 428, to that of the Genesee Chief v. Fitzhugh, in the 12th of Howard, 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 terræ, 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 pretence of any change in

Jackson et al. v. Steamboat Magnolia.

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 terræ, 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 10th of Wheaton, p. 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 water-course 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., 524, 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 offici, 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

Jackson et al. v. Steamboat Magnolia.

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. Phœbus et al., 11 Pet., p. 175. In this case, as in that of Peroux v. Howard, the vessel libelled 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 gentlemar, now upon this bench, that the situation of the steamboat libelled 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 tide-waters, 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. 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 tide-waters. 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.'

The

In the case of Waring et al. v. Clark, in the 5th of How., 441, and in that of the New Jersey Steam Navigation Company v. The Merchants' Bank, in the 6th of 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

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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 tide-waters, with foreign countries, and amongst the several States. Contracts growing out of the purely internal commerce of the State, as well as commerce beyond tide-waters, 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, in so far 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 uvon the lakes, and upon the rivers con

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necting 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 opin