Jackson et al. v. Steamboat Magnolia.

eral, 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 extra-judicial. 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, aud 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 offences 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

Jackson et al. v. Steamboat Magnolia.

exposition of the system which its author afterwards introduced as the doctrine of the court, in.the Thomas Jefferson, in 1825; Orleans v. Phœbus, in 1837; and Coombs's 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 say: "The true test of jurisdiction 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." In the United States v. Coombs, 12 Pet., 73, the direct question arose as to the limits of this jurisdiction. The court answers, as in former cases, "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 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 tide-waters," 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 the New Jersey Navigation Company v. the 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. at L., 726,)

Jackson et al. v. Steamboat Magnolia.

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 tide-waters 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 cornmerce 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 say, "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.

Jackson et al. v. Steamboat Magnolia.

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.; 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 highwater 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 salt

Jackson et al. v. Steamboat Magnolia.

ness 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 R., 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 objec