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tion's log-book. By so doing, we will observe the evolution of admralty and maritime jurisdiction and ascertain how and why the Great Lakes became high seas.
Mr. Justice Jay, in an early decision, clearly states the extent of admiralty and maritime jurisdiction in these words,
The judicial power of the Union was extended to cases of admiralty and maritime jurisdiction, because, as the seas are the joint property of nations, whose rights and privileges thereto are regulated by the law of nations, and treaties, such cases necessarily belong to national jurisdiction.
When one Bevans was indicted for murder committed on an American ship of war lying at anchor in the main channel of Boston Harbor, in waters where the Massachusetts courts had theretofore exercised jurisdiction, Mr. Justice Marshall held that the United States courts had not jurisdiction of the offense charged.?
Two years later, the same learned Justice stated in no uncertain language what were not high seas.
The jurisdiction of the court depends on the place in which the fact was committed.
Is the place described a part of the high seas? If the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the “high seas,” if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country.s
The Crimes Act of March 3, 1825, which was drafted by Mr. Justice Story to correct the defects in the former acts, provided for the punishment of crimes by the United States when committed, upon the high seas, any arm of the sea, river, haven, creek, basin or bay within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state. (Chapter 65).
Mr. Justice Story, in upholding the decisions of Chief Justice Marshall, speaking for a unanimous court, when a boat was libeled for wages earned upon the Ohio and Missouri Rivers, said,
6 Chisholm v. Georgia, 2 Dall. 419, 475. 1793. 7 United States v. Berans, 3 Wheat. 336. 1818. 8 United States v. Wiltberger, 5 Wheat. 76, 94. 1820. 9 2 Story's Life of Story, 402.
In respect to contracts for the hire of seamen, the admiralty never pretended to claim, nor could it rightfully exercise any jurisdiction except in cases where the service was substantially performed on the sea, or upon waters within the ebb and flow of the tide. This is the prescribed limits, which it was not at liberty to transcend.10
In affirming the Thomas Jefferson decision, in a case where a boat was engaged in trade between New Orleans and the interior towns on the Mississippi River and its tributaries, the southern terminus of the voyage being in tide water, Mr. Justice Story said,
The case is not one of a steamboat engaged in maritime trade or navigation. Though in her voyage she may have touched at one terminus of them, her employment has been, substantially on other waters.
The true test of 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. 11
The following year the same learned justice reaffirmed the position theretofore taken by the court and in the course of an opinion, speaking of admiralty jurisdiction, said,
Does it, in cases where it is dependent upon locality, reach beyond high water mark? Our opinion is that in cases purely dependent upon the locality of the act done, it is limited to the sea, and to tide waters, as far as the tide flows, and that it does not reach beyond high water mark. It is the doctrine which has been repeatedly asserted by this
On February 26, 1845, Congress passed an act, which, among other things, provided,
That the District Courts of the United States shall have, possess and exercise the same jurisdiction in matters of contract and tort arising in, upon, and concerning steamboats and other vessels of 20 tons burden and upwards, enrolled and licensed for the coasting trade and at the time employed in business of commerce and navigation between ports and places in different states and territories, upon the lakes and navigable waters connecting said lakes as is now possessed and exercised by the said courts in cases of light steamboats and other vessels employed in navigation and commerce upon the high seas and all tide waters within the admiralty and maritime jurisdiction of the United States.
10 The Thomas Jefferson, 10 Wheat. 428, 429. 1825; Peyroux v. Howard, 7 Pet. 324. 1833.
11 Steamboat Orleans v. Phæbus, 11 Pet. 175, 183. 1837. 12 United States v. Coombs, 12 Pet. 72, 76. 1838.
The first radical encroachment upon the well recognized commonlaw jurisdiction of the states occurred in 1817, when the Supreme Court extended admiralty and maritime jurisdiction intra corpus comitatus, within the ebb and flow of the tide. The court refused to be governed by what were cases of admiralty jurisdiction in England at the time of the adoption of the Constitution, and expressed the opinion that the United States could not be deprived of admiralty jurisdiction merely because the states might have a similar jurisdiction over the same waters.
The facts upon which the court passed were peculiar. A libel had been filed in a district court to recover damages sustained by reason of a collision between vessels navigating the Mississippi River, about two hundred miles from the Gulf of Mexico. The court found that, at the point where the collision occurred, the waters of the river were slightly influenced by the pressure of the tide in the Gulf. The majority court, speaking through Mr. Justice Wayne, held that admiralty jurisdiction could be exercised over waters influenced by the ebb and flow of the tide, even though the waters were within the body of a county.18
The learned judge expressed himself as follows (p. 457):
There is an unanswerable constitutional objection to the limitation of “all cases of admiralty and maritime jurisdiction ” as it is expressed in the Constitution to the cases of maritime jurisdiction in England when our Constitution was adopted.
To do so would make the latter a part and parcel of the Constitution, as much so if those cases were written upon its face. It would take away from the courts of the United States the interpretation of what were cases of admiralty and maritime jurisdiction. It would be a denial to Congress of all legislation upon the subject.
While it can not be doubted that there exists in the federal government whatever power may be necessary to the full and unlimited exercise of “ admiralty and maritime jurisdiction” and that Congress may pass all laws to give complete effect to that power, it seems doubtful whether the Constitutional Convention intended to give to Congress and the Supreme Court full power to either extend or limit the admiralty jurisdiction thus delegated.
13 Waring v. Clarke, 5 How. 441. 1847.
Justices Daniel, Grier, and Catron concurred with Mr. Justice Woodbury in an elaborate dissenting opinion covering thirty-six pages, in which the following points were made: That the Constitution of the United States is an instrument and plan of government founded in the common law and that to common-law terms and principles we must refer for a true understanding of it; that the principle was well settled that admirality has no jurisdiction over acts unless committed upon the high seas, out of the limits of a county, and that for centuries no different rule has ever been followed; that the extending of admiralty jurisdiction results in the abolition of trial by jury; that if those who drafted the Constitution intended to include inland lakes and rivers within the admiralty and maritime jurisdiction of the United States they would have done so in express words, therefore the right was reserved to the states.
A new position was taken by the Supreme Court the following year. The court held that the power to regulate commerce conferred by the states upon the national government carried with it exclusive jurisdiction of admiralty. The dissenting opinions of Justices Catron, Daniel, and Woodbury constitute perhaps the finest history ever written of the growth and development of maritime jurisdiction in England up to the time of the adoption of the Constitution.14 A libel in personam had been filed by the bank to recover the equivalent of specie which was lost by reason of an alleged negligent fire which destroyed the company's boat on Long Island Sound. It was the first time the Supreme Court had been called upon to pass upon a contract of affreightment in an admiralty court. Mr. Justice Nelson, in the course of his opinion, said,
It is not to be denied that if the grant of power in the Constitution had reference to the jurisdiction of the admiralty in England at the time, and is to be governed by it, the present suit can not be maintained. 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 cognizance of the Federal Courts.
The opinion delivered in this case was extremely unfortunate.
14 New Jersey Steam Navigation Company v. Merchants Bank, 6 How. 344. 1848.
It never was followed by the court, and its reasoning was directly overruled in 1868, as we shall see.
We are now ready to review a decision 15 which has probably been cited and commented upon both favorably and unfavorably by the court itself more than any decision it ever rendered. A libel was filed to recover damages resulting from a collision on Lake Ontario in American waters, the boats being American vessels and engaged at the time in interstate commerce. In holding the Great Lakes and navigable rivers connecting same to be within admiralty jurisdiction, which meant a corresponding loss of rights to the bordering states, the court was not only compelled to complete the renunciation, expressed in previous decisions, of the admiralty law of England which had been brought to this country by our ancestors, to directly reverse the numerous decisions heretofore considered, rendered by Marshall and Story, but was compelled, in the opinion of members of the court itself, to change the meaning of words used in the Constitution. In holding that the law of 1845 was constitutional, Chief Justice Taney, speaking for the majority court, decided that at the time the American colonies adopted the English rule they were a series of states bordering upon the Atlantic seaboard, and, therefore, the English rule wis applicable and was adopted; that every reason which existed for the grant of admiralty jurisdiction on the Atlantic applied with equal force to the Great Lakes, and that it was not the intention of the framers of the Constitution to confine the “ blessings” of admiralty courts to that coast and deny its advantages where they were equally needed; that the admiralty and maritime jurisdiction of the United States should be made to depend upon the navigable character of the water and not upon the ebb and flow of the tide, and that there is nothing in the ebb and flow of the tide that makes waters particularly suited to admiralty jurisdiction nor anything in the absence of tide which renders them unfit; that the lakes are truly “inland seas,” for the reason that different states border on one side and a foreign nation on the other; in short, that navigable waters are public, and being public, are within the legitimate scope of admiralty jurisdiction.
15 Genesee Chief v. Fitzhugh, 53 U. S. 443, 12 How. 1851.