4

its permanent jurisdiction. 10 Wheat. 315; 5 must be, therefore, causes arising wholly upon Ibid. 120, App.; 4 Dall. 2; Doug. 613, note; 1| the sea, and not within the precincts of any Kent's Com. 357. Where any of the references county." 3 Bl. Com. 106. in the books here are to printed cases of tort, they uniformly appear to have been committed on the high seas, or without the body of a county and State. Burke v. Trevitt, 1 Mason, 96, 99, 360; Manro v. The Almeida, 10 Wheat. 474, 486, 487; The Josefa Segunda, Ibid. 315; Thomas v. Lane, 2 Sumner, 1; The Apollon, 9 Wheat. 368; Plummer v. Webb, 4 Mason's C. C. 380, and Ware, 75; Steele v. Thatcher, Ware, 96. If the act happened in foreign countries, in tide waters, there may well be jurisdiction, as being not within the body of any 487*] county here. *Thomas v. Lane, 2 Sumner, 9. Such was the case of The Apollon (9 Wheat. 368), not being a case within tide waters and a county in this country.

Moreover, as to American authorities directly against these supposed changes as to torts, it is hardly possible to find anything stronger than the absence we have just referred to, almost entire, of any attempt in actions to sustain the jurisdiction in admiralty *over torts, [*488 unless happening on the high seas, and the uniform settled decisions in England, that it exists only there. But, beside this, there is the absence likewise of any colonial statutes or colonial decisions to bring in question at all the. adjudged cases at home, which governed this question here no less than there. There is next the remark by Chancellor Kent, that if tides ebb and flow in a county, a recovery cannot be had for a tort there, on the principles of the There is an expression in 12 Peters, 76, common law courts. 1 Kent's Com. 365, note; which is supposed by some to sanction a 3 Hagg. Ad. 369. | change. But it is only a dictum, that having been a case of crime, and the idea and the expression are, not that torts or crimes could be tried in admiralty, when committed within a county, on tide water therein, but that in no case, if committed on land or above tide water, could they be tried there as admiralty offenses, but only as offenses defined and pun-to ished by acts of Congress under the power to regulate commerce. United States v. Coombs, 12 Peters, 76. This may be very true, and yet in torts, as well as crimes, they may not be punishable without a statute, and as mere admiralty cases, unless committed on the ocean. During this session I have for the first time seen a case decided in one of our circuits, which holds that the tide waters of the Savannah River are within the jurisdiction of the admiralty, as to collisions between boats. Bullock v. The Steamboat Lamar, 1 Western L. J. 444. But as the learned judge seems to have taken it for granted that the question of juris- But, beside this, one resolve of the old Condiction had been settled by previous decisions, gress shows that they considered the line of the he does not go into an examination of its prin- county as the true one; and hence its violation ciples, and cites only one authority (7 Peters, in cases of trade and revenue, under statutes 324), which will be found to be a case of con- passed to oppress them, caused their remontract and not tort. So that, with this single strances that the vice-admiralty courts had exception, so far as it be one, not a single re-transgressed the ancient limits of the bodies of ported case is found, and only one manuscript case referred to (Dunl. Adm. 51), where a tort was committed within one of our counties, though on tide water, which was adjudged to be within admiralty jurisdiction, since the country was first settled, or of a like character in England, unless by recent statutes, for the last four centuries.

On the contrary, in Bee's Admiralty Reports and Peters's, in Gilpin's and Ware's, cases for torts are found, but all arising on the high seas, unless some doubt exists as to one in the last, partly overruled afterwards in the Circuit Court. So, whatever may be the obiter dicta, it is the same as to all in Paine, Washington, Baldwin, and even Gallison, Mason, Sumner, and Story. Indeed, this result accords with what was rightfully to be anticipated from the rule laid down in the first elementary law book in the hands of the profession at the time of the Revolution, that "admiralty courts" (3 Bl. 106) had cognizance of what is "committed on the high seas, out of the reach of our ordinary courts of justice." And "all admiralty causes

And no one can read the learned Digest of Dane without seeing that in torts he considers the trial by jury proper, wherever they occur within the body of any county. 6 Dane's Abr. Prohibition. And it is laid down generally, in several other instances in this country, that the locality of torts must be on "the sea," in order confer jurisdiction on the admiralty. Thackery et al. Gilp. 524, 529; 3 Mason, 243; Baldw. C. C. 550-554; so in Adams v. Haffards, 20 Pick. 130. See, also, the colonial case before cited from 1 Dall. 53, Montgomery v. Henry et al., directly in point, that the line of the county was the test, and not tide water, unless without the county. This was in 1780, and is most conclusive proof that no colonial enlargement of mere admiralty jurisdiction as to this matter had occurred here in practice, either under the words of commissions to viceadmiralty judges, or any difference of circumstances and condition.

counties. 1 Journal of Old Cong. 21-23. How unlikely, then, is the inference from this, that the framers of the Constitution regarded this encroachment as the true line, and, when protesting against it, not only meant to adopt it, but extend it to cases of torts?

It is not a little remarkable, too, that in maturer life Judge Story himself, in speaking of the jurisdiction over torts (3 Com. on Constit. 1659), says: "The jurisdiction claimed by the courts of admiralty as properly belonging to them extends to all acts and torts done upon the high seas, and within the ebb and flow of the sea." That means, at common law, outside of a county.

Thus says Coke, in 4 Inst. 134: "So as it is not material whether the place be upon the waters infra fluxum et refluxum aquæ; but whether it be upon any water within any county." See Laws, 234. Again, the ebb and flow of tide, to give jurisdiction to the admiral. means on the coast outside. Fortescue, De Laudibus L. Ang. 68, note. So in 2 Madison, Papers, 799, 800, it will be seen that Judge Wil

son deemed the admiralty jurisdiction to relate | happened on "the high seas," knowing full well to what the States had not exercised power that they are the great theatre and territory over, and to the sea. So in The Federalist, No. for the exercise of admiralty law and admiralty 80, cases arising on the high seas are said to be power; and being obliged to make such an althose embraced. legation in England in order to gain jurisdiction. Ross v. Walker, 2 Wils. 265.

One of the soundest jurists has said long | ed States courts try such cases, rather than since "The common law of England, and every those of the States, they can be enabled to do statute of that country made for the benefit it by express provisions, under the power to of the subject before our ancestors migrated to regulate foreign commerce and collect revenue, this country, were, so far as the same were ap-as is now done on the Lakes. 12 Peters, 75; plicable to the nature of their situation, and for 5 Statutes at Large, 726; Act of February their benefit, brought over hither by them; and 26th, 1845; and reserving, as in that case, the wherever they are not repealed, altered, or right of trial by jury.2 amended by the constitutional provisions or legislative declaration of the respective States, every beneficial statute and rule of the common law still remains in force." Tucker, in Part II. of Bl. Com. App. 99; 2 Chalm. Op. 75; Woodcock, 159.1

Whether the 13 and 15 of Richard II. were in affirmance of what was the true limit of admiralty jurisdiction at first in England, or otherwise, is not very material. But it is certain that it was likely to be but declaratory of that, as the people were so devoted to the common law trials by jury. The extraordinary | idea, that these statutes were not in force here, was first broached in A. D. 1801, and then in a district court, in direct opposition to the views expressed in 1 Dall. 53. The point then decided under that novel notion was, that a lien existed for repairs of a domestic ship, without the aid or any statute, and has been since expressly overruled by this court in The General Smyth, 4 Wheat. 413. And why overruled | by this court, but on the principle that the admiralty jurisdiction here was what it had been in England before our Constitution, and not elsewhere-not that of France before the Norman conquest, or that of Holland now?

I have thus examined this question in all its various aspects, and endeavored to answer all which has been suggested in favor of a change here as to the line of admiralty jurisdiction in the case of the collision of vessels, as well as other marine torts.

Among my remarks have been several, showing that there was nothing in our condition as colonists, or since, and nothing in the nature of the subject and the great principles involved, which should render the same line of jurisdiction not proper in America which existed in England, but in truth some additional reasons in favor of it here. I do not now, in conclusion, propose to dwell much on this peculiar condition of ours, though some members of this court have just urged it earnestly as a reason why the same line does not apply, as they have why the statutes of Richard II. did not apply. But the idea is as untenable in respect to the principle generally, looking to our condition, as we have already shown it to be in respect to those statutes. Thus, in that condition, what reason was there ever for a change? None. And, if otherwise believed, when we were colonies, would not the change have been made. by acts of Assembly approved at home, Indeed, Justice Story, as a commentator in or an act of Parliament? And if not done when respect to other clauses of the Constitution no colonies, but supposed to be proper after the more open to such a construction than this, Revolution, would not the framers of the Conconcedes that they are to be "understood" "ac- stitution, or of the Judiciary Act, have known cording to the known distinction in the jurispruit as quickly and fully as this court? And was dence of England, which our ancestors brought it not more proper for them to have made such with them upon their emigration, and with a change thân this court? If our political inwhich all the American States were familiarly stitutions or principles required it, did not they acquainted." 3 Story's Com. on the Constitu- know, and should not they have attended to tion, 506, sec. 1639. that rather than we? If such a change had Nor let it be again offered in extenuation, already happened in the then thirteen colonies, that, the power being concurrent in the common and was too well known and acquiesced in, as law courts, the plaintiff from choice goes into *to torts and crimes, to need any writ- [*493 the admiralty; because the other party, who is ten explanation or sanction, why cannot it be often prosecuted only to be vexed and harassed, pointed out in colonial laws, or in judicial and who has rights as well as the plaintiff, records, or at least in contemporaneous history may be thus forced into admiralty, rather than of some kind? And if such a change was re-. 492*] the *common law, much against his quired and intended, as some insist, by resortchoice. Nor let it be said further, as an apol-ing to other than English law for a guide as to ogy, that the trial by admiralty is better and what were admiralty cases within the meaning more satisfactory, when our ancestors, both of the Constitution, because something less English and American, have resisted it, and excluded it in all common law cases, for reasons most vital to public liberty and the authority of the local tribunals. Such an enlargement of a power so disliked by our fathers is also unnecessary; because, if desirable to have the Unit

1. Thus people who go to form colonies "are not sent out to be slaves, but to enjoy equal privileges and freedom." Grotius, De Jure Belli, B. 2, ch. 9, sec. 10. Or "the same rights and privileges as those who staid at home." Or, as in the charter of Elizabeth to Raleigh, "enjoy all the privileges of free denizens or persons native of England.' Part I. of Tucker's Bl., Vol. I., p. 383, App.

2. As some evidence that the makers of this last law did not suppose it settled that the district courts could, as admiralty courts, have any jurisdiction as to torts, because committed on tide

narrow, geographically or otherwise, as it has been argued, something on a grander scale, and in some degree commensurate in length and breadth with our mighty rivers and lakes, was needed--as if a system which had answered for trade over all the oceans of the globe was waters within a State, when they felt obliged to pass a special law to confer it on the lakes, it was not conferred there as exercised on "tide waters," which would have been sufficient, if so settled, but on "the high seas, or tide waters within the admiralty and maritime jurisdiction, etc. This statute is also scrupulous to save the trial by jury when desired, and thus avoids treating it as an admiralty power got in torts, unless on the high seas, by a construction contrary to the political opinions and prejudices of our ancestors, and to the whole spirit of our institutions.

not large enough for us-then why not extend | State tribunals, to defend their rights under a it at least over all our navigable waters, and different forum and a different system of laws. not halt short at the doubtful, and fluctuating, After these additional proofs of the caution and pent-up limits of tide water? And was a of our ancestors to check the usual admiralty change so much required to go into the bodies power of trial without a jury, and more esof numerous counties and States, to the jeop- pecially to prevent any extension of it, could ardy of jury trials, by any increased dislike to they for a moment, when so jealous of the genthem among our jealous fathers? Were they eral government and its overshadowing powers, wishing, by mere construction, to let more and wish to extend them further than ever before, more go into the cognizance of the admiralty either here or in England ?1 Did they mean to and be tried without a jury, and without the relinquish their time-honored and long cherished principles of the common law, when they had trial for torts on water within a county, and been so indignantly remonstrating against any take for a model despotic France, for instance, and every the smallest encroachment by Eng- which knew no trial by jury in any case, and land on that sacred trial? And is this guaran- where the boundaries between the admiralty tee of a jury trial in such cases to be considered and other courts were almost immaterial, being of subordinate moment in the views of those equally under the civil law, and equally withliving at the era of the formation of the Con- out the safeguard of their peers? And would stitution, and the passage of the Act of 1789, they be likely to mean this, or wish it, when when their eagerness was such to guarantee it every such extension of admiralty jurisdiction fully, that two of the only twelve amendments was at the expense of the State courts, and ever made to it relate to additional safeguards transferring the controversies of mere citizens for this trial? And in the Judiciary Act of of one State to distant jurisdictions, out of their 1789, there are introduced, ex industria, three counties and in certain events to the remote separate provisions to secure jury trials. seat of the general government, and then to be Indeed, so far from there being anything in tried there, not by the common law, with whose our condition as colonists, or in public opinion principles they were familiar, but by the civil, at the Revolution, which demanded a change and when a full remedy existed at home and in Much less could they be enlarging admiralty forms and jurisdiction, the their own courts? old Congress specially resolved, November 25th, supposed willing to do this when the trial of 1775, when recommending to the colonies to facts in this court was not to be by their peers institute courts to try captures, or devolve from the vicinage, or on oral testimony, so that the power on those now existing, that they the witnesses could be seen, scrutinized, and "provide that all trials in such case be had by well compared, but by judges, who, however a jury," which was going further in their favor, learned in the law, are less accustomed to settle instead of short of what had ever been done in facts, and possess less practical acquaintance England. And, in 1779, Virginia established with the subject *matter in controversy. [*495 admiralty courts, under recommendation of the And what are the urgent and all-controlling old Congress, and expressly allowed a jury in reasons which exist to justify the new line all cases where either party desired it, if both urged upon us, in such apparent violation of the were citizens. 10 Hening's Stat. 101. The same Constitution, and with so inauspicious a deis understood to have been done in several parture from anything required by our condiother States. See the Federalist, No. 83. Intion, or from what seems to have been the Massachusetts, under the old charter, as long ago as 1673, the court of admiralty was expressly authorized to allow a jury when it pleased. Ancient Charters and Laws, 721, App. Iredell says, also, in the North Carolina Convention, 4 Elliot's Deb. 155: "There are different practices in regard to this trial in different 494*] States. In some cases *they have no juries in admiralty and equity cases; in others, they have juries in them as well as in suits at common law."

principles and precedents at the Revolution?

It is not the line even of the civil law, any more than of the common law. If this innovation had extended admiralty jurisdiction over all navigable waters, it would have been, at least, less vague, and found some vindication in its analogy to the civil code. Digest, 43, tit. 12, 13; Code Napoleon, B. 2, ch. 2, tit. 556; But the Zouch's Elements of Jurisp. 382. rule of tide water within a county, and not on the sea, conforms to no code nor precedent; And to the objections made against adopting neither marching boldly over all which is navithe Constitution, because the trial by jury gable, nor halting where the ocean meets the might be restricted under it and suitors be land; neither shunning to make wide inroads compelled to travel far for a hearing in ordi- into the territories of juries, nor pushing as far nary cases (1 Gales's Debates in First Con- as all which is nautical and commercial goes. gress), it was argued that Congress would pos- The only plausible apology for it, which I can sess the power to allow juries even in cases in ad- find, is in a total misconception, before admiralty (The Federalist, No. 83), and after-verted to, of the ancient and true rule, which wards, by the original amendments to the Con- was tide water, but at the same time tide water stitution, it was made imperative to allow them without the body of the county, on the high in all "cases at common law." Yet now, by considering torts within a county as triable, or as "cases in admiralty," which was not done by the common law, nor when the Constitution was adopted, either in England or here, we produce both the great evils deprecated-an abridgment of the jury trial from what prevailed both here and in England, and the forcing of citizens to a great distance from their

The Black

1. Indeed in England it has been controverted whether the power in admiralty to punish torts 13 Mason's C. C. 244), except through a jury, used anywhere ever existed, even before Richard II. to settle the facts and assess the damages. See 4 Rob. Ad. 60, note to Rucker's case. Book of Admiralty, art. 12, p. 169, is cited as speaking of the use of a jury twice in such cases. See, also, Roughten De Of Admiralis, 69 note. And at this day, in England, in this class of torts, as hereafter shown, the masters of Trinity House act virtually as a jury.

seas. But instead of the flux and reflux of the diction there without the aid of express stattide on the high seas, and without the body of ute and a reservation of common law remedies the county or State, and to support which line after a refusal to do it here recently as to the stood the great pillars of a jury trial and the lakes and their tributaries, except in the same common law, have been attempted to be substi- | way, and preserving the trial by jury—after all tuted, and that without authority of any stat-the sensitiveness of our fathers in not doing it ute or clause in the Constitution, as to torts, as to seizures for breach of revenue and navigathe impulses from the tides at any and every tion laws, except by express statute-after distance from the ocean, sometimes encroaching their remonstrances and cautions in various from one to two hundred miles into the in- ways against abridging the trial by jury—after terior of counties and States, and prostrating the jealousy entertained when the Constitution those great pillars most valuable to the people was adopted, that this court might absorb too of the States. And what, let me repeat the in- much power from the State tribunals, and the quiry, is gained by such a hazardous construc- respect and forbearance which are always justtion? Not an adherence to old and established ly due to the reserved rights of the States-it rules, not a respect for State right; not certainly seems much wiser in doubtful cases strengthening the Union or its clear powers to let Congress extend our power, than to do it where assailed, but weakening by extending ourselves, by construction or analogy. them to doubtful, irritating, and unnecessary So far from disturbing decisions and rules of topics; not an extension of a good system, al-property clearly settled, I am for one strongly lowing the admiralty to be one for all nautical disposed to uphold them, stare decisis, and matters, to all navigable waters and commercial questions, but falling short, in some of our vast rivers or inland seas, near one thousand miles from the head of navigation, and cutting off several cities with twenty, thirty, and even forty thousand population. The late Act of February 26th, 1845, 5 Statutes at Large, 726, was intended to remedy this, but does not include any cases above tide water on the Mississippi, or Cumberland, or Ohio, and many others, but only those on the lakes and their tributaries, and very properly even there reserves, with scrupulous care, not only the right to either party of a trial by jury, but any rem edy existing at common law or in the States.

So, looking to results, if we disclaim jurisdiction here, what evil can happen? Only that our citizens in this class of cases will be allowed 496*] *to be tried by their own State courts, State laws, and State juries. While, if we do the contrary, the powers of both States and juries will be encroached on, and just dissatisfaction excited, and the harmonious workings of our political system disturbed. So, too, if our national views have become actually changed so greatly, that a trial by a single judge, and in admiralty, is preferred to a trial by jury in the State tribunals or the circuit courts, then our overruling the jurisdiction in this case will only leave Congress to declare the change, and provide for it, rather than this tribunal.

hence I am inclined in this case to stand by the ancient landmarks, and not set everything afloat-to stand, in fine, by decisions, repeated and undoubted, which govern this jurisdiction, till a different rule is prescribed by Congress.

The first doubt as to the jurisdiction in admiralty over the present case is thus sustained, but, being overruled by a majority of the court, I proceed briefly to examine the next objection. It is one founded in fact. It denies that the tide did in truth ebb and flow at Bayou Goula, the place of this collision, in ordinary times.

There is no pretense that the water there is salt, or comes back *from the ocean [*497 or that the tide there sets upward in a current, or ever did, in any stage of the water in the Mississippi. Yet this is the ordinary idea of the ebb and flow of the tide. I concede, however, that it has been settled by adjudged cases, that the tide is considered in law to ebb and flow in any place where it affects the water daily and regularly, by making it higher or lower in consequence of its pulsations, though no current back be caused by it. Rex. v. Smith, 2 Doug. 441.; The Planter, 7 Peters, 343; Hooker v. Cummings, 20 Johns. 98; Angell on Waters, 637. Yet this of course must be a visible, distinct rise and fall, and one daily caused by the tides, by being regular, periodical, and corresponding with their movements. Amidst conflicting evidence on a point like this, it is much safer to rely on collateral facts, if there be any important ones admitted, and on expert or scientific men, who understand the subject, than on casual observers.

Tide

The

So the excuse for trying such cases in admiralty rather than in courts of common law, which some have offered, on the ground that the rules of decision are much the same, ap-sea is conceded to be two hundred and three pears very ill-considered, when, if the civil miles distant; and the current of the Mississiplaw in this instance does not differ essentially pi so strong as to be seen and felt far out to from the common law, the rules of evidence by sea, sometimes quite forty miles. The tides on it do, depriving us, as triers, of the sight of the that coast are but eighteen or twenty inches witnesses, and their apparent capacity and high. The velocity of the current of the river character, and depriving the defendant of the is ordinarily three to four miles an hour in high invaluable trial by jury, and stripping him of water, and the river is two hundred feet deep the right of being tried, and the State courts of for one hundred miles above New Orleans. the right of trying controversies between their Stoddard's Hist. of Louisiana, 158. It therefore citizens, in the neighborhood where they occur. becomes manifest that on general principles "All controversies directly between citizen and such a current, with its vast volume of water, citizen will still remain with the local courts," could not only never be turned back or oversaid Mr. Madison in the Virginia convention. | come by the small tides of eighteen inches, as 3 Elliot's Deb. 489. the fact of its influence forty miles at sea also

Now, after all this caution exercised in Eng- demonstrates, but would not probably, in land not to extend nor change admiralty juris-ordinary times, be at all affected in a sensible