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 the 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 22 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,2+ 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 holding 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 "is

seas

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

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.

of any particular state, and within the territorial limits of the Dominion. of Canada.28

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.

waters and like the word "highways" presupposes the right of the public to make free use of them and excludes the idea of private ownership; that the idea of giving to the courts of all nations jurisdiction over the high seas arises primarily from the fact that they belong to no particular sovereignty, but as to the Great Lakes, no nation has the right to navigate them except by the permission and subject to the laws of the United States and Great Britain, hence they are not, and never have been, "high seas." The dissenting opinions handed down by Justices Gray and Brown, in the Rodgers case, endeavor to show that the majority opinion is not in accord with a well-established line of authorities. After citing many American decisions, the learned jurists quote Kent, Sir William Scott, Vattel, Wheaton, Phillimore, Martens, Wharton, Lord Hale, Azuni, and Valin. Said Mr. Justice Brown:

But even if the lakes were to be considered as high seas, the term surely can not be applied to a river 22 miles in length, and less than a mile in width connecting the two lakes. (p. 284).

Again:

The opinion of the court in this case appears to inaugurate a wholly new departure in the direction of extending the jurisdiction of the Federal Courts. (p. 279).

When a libel was filed to recover for repairs made to a canal boat which was engaged at the time in navigating the Erie Canal, the court found that the canal, though lying wholly within the state of New York, formed a part of a continuous highway for interstate and foreign commerce, and only differed from other navigable waters by reason of the fact that it was rendered navigable by artificial means, and was within admiralty jurisdiction.29 A vigorous dissent was entered by Mr. Justice Brewer, concurred in by Justices Fuller, Peckham, and Harlan, and stating, among other objections,

The grant to the National Government over admiralty and maritime matters was in the furtherance of commerce between this nation and others, and designed to secure uniformity in respect thereto, and does not extend to contracts made in respect to vessels which are incapacitated from foreign commerce, designed to be used exclusively for mere local traffic within a state. (pp. 54, 55).

29 Perry v. Haines, 191 U. S. 17. 1903.

The above review has been made as complete as limited space would permit. It shows:

1. By what successive steps Congress and the Supreme Court enlarged the maritime jurisdiction of the United States.

2. The opposition which radical departures from former decisions met from members of the court.

3. That this branch of the law has been the subject of great uncertainty, and prolific conjecture.

4. That present-day rulings can not be considered as final.

A careful examination of every available text book upon international law shows that the Great Lakes were never considered in the light of seas, much less "high seas." But, since the Great Lakes are high seas, it may not be improper to ascertain whether or not there attaches to them any or all of the incidents of high seas within the meaning of international law. For two reasons such an inquiry is pertinent. First, the term "high seas" has no place in any discussion which does not deal with the subject of international law or admiralty and maritime matters; and second, international law may be properly taken up and considered when the rights and interests of two or more sovereign states are being considered in reference to any given state of facts.

OWNERSHIP

Under article 2 of the treaty of peace with Great Britain (Treaty of Paris, 1783), the Great Lakes, except Lake Michigan, were divided equally between the United States and Great Britain and the boundary line was run through their center. In 1814 (Treaty of Ghent, article 6), the division previously made was ratified, and at a later date (Webster-Ashburton Treaty, 1842), commissioners fixed the exact line. Under this apportionment, all of the waters are within the jurisdiction of Great Britain and the United States.

As the bordering states were admitted to the Union, Congress extended their boundaries to the international line, thus placing all the American division of the lakes within the jurisdiction of the bordering states. The states proceeded to exercise undisputed criminal and civil jurisdiction up to that line. That the United States government, in extending the jurisdiction of the states to the inter