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Judge Manning of the Michigan Supreme Court, in commenting upon the Chief Justice's views, said,

The reasoning is not expository, but is based upon expediency alone. It is not to show what the Convention that formed the Constitution meant by admiralty and maritime jurisdiction, the only question involved in a constitutional inquiry, but to prove that the country has outgrown the Constitution.16

A dissenting opinion was handed down by Mr. Justice Daniel which included the following objections: that the construction to be placed upon any clause in the Constitution must be in the light of what is believed to have been the understanding of those by whom it was formed; that it was their evident intention to limit admiralty jurisdiction to the high seas where the tide ebbed and flowed ; that the Constitution can not be construed by mere geographical consideraticas and can not stretch or contract; that admiralty power can not be exercised over waters within the body of a state without engrafting an amendment upon the Constitution. He said:

My opinions may be deemed unsuited to the day in which we live but they are founded upon

convictions as to the nature and objects of limited government

and I have

* * the consolation of the support of Marshall, Kent, and Story, in any error I may have committed. (p. 465).

The majority opinion was affirmed during the same term of court, Mr. Justice Daniel again dissenting. 17

With the court swung about on another tack, progress in the direction taken became rapid.

In the Magnolia case, the Supreme Court carried the jurisdiction of admiralty to an extent incalculably beyond all other decisions.18 The libel was filed to recover damages resulting from a collision which occurred on the Alabama River wholly within the state of Alabama, above tide waters. Mr. Justice Grier held that when the states gave “ admiralty and maritime jurisdiction” to the federal government, they surrendered all right to exercise that power over their own waters; that navigable waters had always been within



16 People v. Tyler, 7 Michigan 161, 282. 17 Fritz v. Bull, 12 How. 466. 18 Jackson v. Magnolia, 20 How. 296. 1857.

admiralty jurisdiction, but that Congress had not placed it by express enactment within any federal court. Three of the justices dissented. Mr. Justice Daniel, again dissenting, said:

He who, under convictions of duty, can not 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. (p. 307).

It was but a lull before the oncoming storm when, the following year, the court refused to sanction the threatened extension of admiralty jurisdiction over contracts for the shipment of goods between ports within the same state on the Great Lakes.19 Justices Daniel, Grier, Catron, and Wayne held that admiralty jurisdiction, under the Constitution, was limited to the high seas.

After the civil war, while the North and South were yet palsied with unspeakable grief, admiralty jurisdiction was extended to wherever ships float and navigation successfully aids commerce, whether internal or external. 20 The court held that a state law conferring upon state courts jurisdiction of collisions between vessels upon its own waters is void. In the course of the opinion, which shows no new reasoning, Mr. Justice Miller said,

The history of the adjudications of this court, on this subject, is a very interesting one, and shows with what slowness and hesitation the courts arrived at the conviction of the full powers which the Constitution and the acts of Congress have vested in the Federal Judiciary. (p. 562).

No dissenting voice was heard in the chambers of the judges. Hon. Peter V. Daniel, of Virginia, one of the greatest exponents of the Constitution, had died in office May 31, 1860, after eighteen years on the supreme bench. The Hon. John Catron, of Tennessee, died May 30, 1865, and the Hon. John A. Campbell, of Alabama, resigned May 1, 1861.

The country seemed to accept the new order as the inevitable, and when Allen r. Newberry was overruled and admiralty took juris

19 Allen v. Newberry, 21 How. 244. 1858. 20 Hine v. Trevor, 4 Wall, 555, 563. 1866.


diction of martime torts and contracts where the voyage was between ports in the same state, it was without a dissent, and with no public clamor. 21 In that case a libel was filed to recover damages for a breach of contract of affreightment, being an Alabama case. Mr. Justice Clifford refused to consider the reasoning of Mr. Justice Nelson, in the New Jersey Navigation case, as being entitled to credit, and expounded a new view of navigable waters. He said:

Navigable rivers which empty into the sea, or into the bays or gulfs which form a part of the sea, are but arms of th sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself. Difficulties attend every attempt to define the exact limits of admiralty jurisdiction, but it cannot be made to depend upon the power of Congress to regulate commerce. (p. 640).

Though Mr. Justice Miller, in Hine v. Trevor, held admiralty jurisdiction, as exercised on the Great Lakes and their connecting waters, to 'be governed by the act of 1845, Mr. Justice Nelson held the said act to be obsolete and of no effect and based all admiralty jurisdiction upon the Judiciary Act of 1789, which he found took cognizance of all civil causes of admiralty jurisdiction upon the lakes and waters connecting them, the same as upon the high seas, bays and rivers navigable from the seas. (p. 20). The court passed upon a libel filed to recover damages resulting from a collision between two American vessels in the Detroit River above Peche Island, in Canadian waters. Without giving its reasons for the view, the court held that the circumstance that a portion of the waters lay within the limits of another sovereignty constituted no objection to the exercise of admiralty jurisdiction.

It fell to the lot of Mr. Justice Field to apply to the navigable rivers flowing into the Great Lakes the same doctrine which Mr. Justice Clifford applied to rivers emptying into the sea. The court found that the Grand River, wholly within the State of Michigan, was a stream capable of bearing, for a distance of forty miles, a steamer of 123 tons burden and, by flowing into Lake Michigan, formed a continuous highway for commerce both with other states and with foreign countries. The learned judge held:

21 The Belfast v. Boon, 7 Wall. 624. 1868. 22 Eagle v. Fraser, 8 Wall. 15. 1869.

Those rivers must be regarded as public, navigable rivers in law which are navigable in fact and they constitute navigable waters of the United States within the meaning of the acts of Congress in contradistinction from navigable waters of the states when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water. 23

For the next twenty years but two decisions were handed down which affected admiralty jurisdiction. The court extended its jurisdiction over the Illinois and Lake Michigan Canal,24 but refused to extend it in an action brought to recover damages from a fire alleged to have been set on land by a passing vessel.25

In 1890, Congress extended the criminal jurisdiction of the United States to the Great Lakes. 26

Two years later, Mr. Justice Field laid the foundation for a radical departure from all previous decisions in hoiding for the majority court that land under the Great Lakes, though belonging to the riparian states, could not be used or disposed of to the injury or disadvantage of that interest which the public had in the same waters.27 The learned judge said:

These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide. In other respects they are inland seas. (p. 435).

Mr. Justice Field, the following year, held that the term “high



applicable to the open, unenclosed waters of the Great Lakes, between which the Detroit River is a connecting stream, and the courts of the United States have jurisdiction to try a person for assault with a dangerous weapon committed upon a vessel belonging to a citizen of the United States, where such vessel is in the Detroit River, out of the jurisdiction of any particular state, and within the territorial limits of the Dominion of Canada.28

23 The Daniel Ball, 10 Wall. 557, 563. 1870; Ex Parte Garnet, 141 U. S. 1. 1890.

24 Ex Parte Boyer, 109 U. S. 629. 1883.
25 Ex Parte Phenix Insurance Company, 118 U. S. 630. 1886.
26 Act of September 4th, 1890, R. S., sec. 5346.

27 Illinois Central Railroad Company v. People of the State of Illinois, 146 U. S. 387. 1892.


In this case the court was called upon to interpret the Crimes Act, but its decision is largely made up of reasoning not dependent upon the language of the act itself.

The grounds for the new position taken by the court may best be expressed by quoting parts of the opinion.

If there were no seas other than the ocean, the term high seas would be limited to the open, unenclosed waters of the ocean.

But as there are other seas besides the ocean, there must be high seas other than those of the ocean.

(p. 254). The Great Lakes possess every characteristic of seas. They are of large extent in length and breadth; they are navigable the whole distance by the largest vessels known to the commerce; objects are not to be distinguished from the opposite shores; they separate, in many instances, states, and in some instances constitute the boundary between independent nations; and their waters, after passing long distances, debouch into the ocean. The fact that their waters are fresh and not subject to the tides, does not effect their essential character as seas. (p. 256).

It is to be observed that the term “high ” in one of its significations is used to denote that which is common, open, and public. Thus every road or way or navigable river which is used freely by the public, is a “high way.” (p. 258). The learned judge shows that the term “high seas” is used to denote open, unenclosed waters in contradistinction to its ports and havens and that there exist such open, unenclosed waters on the Great Lakes. He shows the great volume of commerce carried upon the Detroit River, but does not give a reason for declaring it to be a "high sea," other than those above stated.

Justices Gray and Brown dissented, stating, among other objections, that the lakes are not “high seas” for the reason that they are inland seas within the exclusive control of those countries within whose territories they lie and therein essentially differ from "high seas," where the law of no particular state has exclusive force, but all are equal; that the term “high seas” has never been regarded by any publicist or held by any court to be applicable to territorial

28 United States v. Rodgers, 150 U. S. 249. 1893.

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