Waring v. ClarkeWaring v. Clarke
Lead Opinion
delivered the opinion of the court.
This is a libel in rem, to recover damages for injuries-arising from a collision, alleged to have happened within the ebb "and flow of the tide in the Mississippi river, about ninety-five miles above New Orleans.
The decree of the Circuit Court is resisted upon the merits, and also upon the ground that the case is not within the admiralty and maritime jurisdiction of the courts of the United States.
We will first consider the point of jurisdiction.
The learned counsel for the appellants, Mr. Reverdy Johnson, contended, that, even if the evidence proved that the collision took place within the ebb and flow of the tide, the court had not jurisdiction, because the locality is infra corpus comitatus.
Two grounds were taken to maintain that position.
1. Tha^ ^ grant in the constitution of “ all cases of admiralty and maritime jurisdiction ” was limited to what were cases of
2. That the distinguishing limitation of admiralty jurisdiction, and decisive test against it in England and in the United- States, except in the cases allowed in England,, was the competency of'a court'of common law to give a remedy in a given case in a trial by jury. And as auxiliary to this ground it was urged, that the clause in the ninth section of the Judiciary Act of‘1789 (1 Statutes at Largé, 77), “ saying to suitors in all cases the right of a common law remedy, where the- common law is competeht to give it,” took away such cases from the admiralty jurisdiction of the courts of the United States.
The same positions, have béen taken again by Mr. Jlmes and Mr. Whipple, in tbe case of the5 New Jersey Steam Navigation Company v. The Merchants’ Bank of Boston. Every thing in support of them, which-could be drawn from the history of admiralty jurisdiction1 in England, or from what had been its practice in. the United States, and from' adjudged cases in noth countries, was urged by those gentlemen.' All . must admit, who heard them', that nothing,was omitted which could be brought to bear Upon the subject. We come, then, to the decision of these points, with every advantage which learned research, and ingenious and comprehensive deduction from it, can give us.
It is. the first time that the point has been distinctly presented to this court, whether a case of collision in our rivers, where the tide ebbs and flows, is within the ¿dmiralty jurisdiction of the courts of the. United States, if the locality be, in the sense in-which it is used by the common law judges, in England, infra corpus comita-tus. It is this point that we are now about to decide, and it is our wish that nothing which may be said in the course of our remarks shall be extended to embrace any other, case of contested admiralty jurisdiction. .
W.e do not think that either of the grounds taken can be maintained. But before giving our reasons for this conclusion, it will ue well for us to state the cases in which the instance court- in England exercised jurisdiction when our constitution was adopted.
In casés to enforce judgments of foreign admiralty courts, when the person or his goods are within the jurisdiction. Mariners’ wages, except when the contract was under seal, or made out pi the customary way- of such contracts. Bottomry, in certain cases .only, and under many restrictions.' Salvage, when 'he property shipwrecked was not cast ashore. Cases between the several owrfers of ships, when they disputed among themselves about the policy or advantage. of sending her upon a particular voyage. In cases of goods, and .the11 proceeds of goods piratically taken, which will be arrested by a
It may as well be said by us, at once, that, in cases of this last class, it'has frequently been adjudicated in the English common law courts, since the restraining statutes of Richard ,11. and Henry IV. were passed, that high seas mean that portion of the sea which washes 'the open coast; and that any branch of the sea within the fauces terra, where a man may reasonably discern ■ ¿rom shore to shore-, is, or at least may be, within the body of a county . In fact, the. general rule in England has been, since the time of Lord Coke, upon the interpretation given by, the coarte of common law to the statutes 13 and 15 Richard II. and 2 Henry ÍV., to prohibit the admiralty from exercising jurisdiction in civil cases, or causes of action arising infra corpus comitatus. So sternly has the admiralty been excluded from what we believe to have been its ancient jurisdiction in England, that a prohibition within a few years has been issued-in a case of collision happening between the Isle of Wight and the Hampshire coast; and a case of collision in the river Humber, twenty.miles from the main sea, but within the flux and reflux of the tide,, has been held, not to be within the admiralty jurisdiction. The Public Opinion, 2 Hagg.. $98.
. It has not, however, been the undisputed rule, nor allowed .to be the correct interpretation' of the statutes) of Richard. It has always been contended by the advocates of the admiralty, that ports, creeks, and rivers are within its jurisdiction, and not within those statutes ; meaning that the ancient jurisdiction in such localities was not excluded by the words of the statutes. Browne,' however, -in his Civil and Admiralty Law, vql. 2, p. 92, thinks they werfe. within the -words of the statutes ; not meaning, though, to affirm the declaration of Lord Coke, that those statutes were affirmative of the common law. W e think they were not. However much every true English, and American lawyer may feel himself indebted to the-learning of that great lawyer, and will ever be cautious ¡of disparaging.it, it is difficult for any -one to read and reflect upon the part which he took in the controversy upon admiralty jurisdiction in England, without assenting to Mr. Justice Bullet’s remarks, in Smart v. Wolf, 3 Durn. & East, 348 : — “ With respect to what is said relative to the admiralty jurisdiction in 4th Inst. 135 I think that part of Lord Coke’s Work, has always been received with great caútioft, and frequently contradicted. He seems to have, entertained not only a jealousy of, but-an enmity against, that jurisdiction. The passage in 4th Jnst. 135, disallowing the right to take stipulations,' is expressly denied in 2 Lord Raym. 1826. And I may conclude with the words of Lord Holt in that case, that- in this case.£ the admiralty had jurisdiction,, and there is neither statute nor common law.to restrain utem.’”
We have already said it cannot be maintained. It is opposed by general, and also by constitutional considerations, to which we have not heard an answer.
In the first place, those who framed the constitution, and the lawyers in America in that day, were familiar with a different and more extensive jurisdiction in most of the States when they were colonies, than was allowed in England, from the interpretation which was given by the common law courts to the restraining statutes of Richard II. and Henry IV. The commissions to the vice-admirals ip the colonies in North America, insular and continental, contained a, much larger jurisdiction than existed in England when they were granted. That to the governor of New Hampshire, investing him with the power of an admiralty judge, declares the jurisdiction to extend “ throughout all and every the sea-shores, public streams, ports, fresh-water rivers, creeks and arms, as well of the sea as of the rivers and coasts whatsoever, of our said provinces.”
In a work by Anthony Stokes, his Majesty’s chief justice in Georgia, entitled, “.A View of the Constitution of the British Colonies in North America and the West Indies,” will be found, at page 166, the form of the commission of vice-admiral for the provinces in North America. He says, in page 150, the dates in the commission are arbitrary,' and the name of any particular province is omitted. Its language is, — “ And we do hereby remit and grant unto you, the aforesaid A. B., our power and authority in and throughout our province of-afore mentioned, &c. &c., and maritime ports whatsoever, of the same and thereto adjacent, and also throughout all and .every of the sea-shores, public streams, ports, fresh-water rivers, creeks and arms, as well of the sea as of the rivers and coasts whatsoever, of our said province of F.” The extracts from both commissions are- the same. We have the authority of Chief Justice Stokes, that all given in the colonies were alike. The jurisdiction given in those commissions is as large as was exercised in the ancient practice in admiralty in England. It should be observed, too, that they were given long before any difficulties occurred between the mother country and ourselves ; and that they contained no power complained of by us afterwards, when it was said an attempt was made to extend admiralty powers “ beyond these ancient limits.” The king’s authority to grant those commissions in the colonies has never been, and cannot be, denied. In all' the appeals taken from the colonial courts to the High Court of Admiralty in England, no such thing was ever intimated.
Was it not known, also, that, whilst the States were colonies, vice-
Was not a larger jurisdiction in admiralty exercised in Massachusetts, throughout her whole colonial existence, than was permitted to the admiralty in England by the prohibitions of her common law courts ? Were her members in the convention which formed our constitution ignorant of it ?
Were the members from Pennsylvania and South Carolina forgetful, that the extent of the admiralty jurisdiction in the colonies had been the subject of, judicial inquiry in England, growing out of proceedings in the admiralty courts of both of those States in revenue cases ? — that it had been decided in 1754, in the case of the Vrow Dorothea,
Shall it be presumed, also, that the members of the convention were altogether disregardful of what had been the early legislation of several of the States, when they were colonies, upon admiralty jurisdiction and the rples for proceeding in such courts ? — of the larger jurisdiction given by Virginia by her act of 1660, than was at that time allowed to the admiralty in England ? — 'that it was passed in the year that the ordinance of the republican government in England expired by the restoration ? That ordinance revived much of the ancient jurisdiction in admiralty. It was judicially acted upon in England for twelve years. When it expired there, the enlightened influences connected with trade and foreign commerce, “ and
Further, the proceedings of our Continental Congress in 1774 afford^reasons for us to conclude that no such limitation was meant. The admiralty jurisdiction, ancient and circumscribed as it after-wards was in England, and as it was exercised in the colonies, was necessarily the subject of examination, when the Congress was preparing the declaration and resolves - of. the 14th October, 1774 ; in which it is said, “ that the several acts of 4 George III., ch. 15, 34 ; 5 Geo. III.-, ch. 25 ; 6 Geo. III., ch. 52 ; 7 Geo. TIL, ch. 41 ; and 8 Geo, III., ch. 22, which impose duties for the purpose of raising a revenue in America, extend the power of the admiralty courts beyond their ancient limits.” Journal of Congress, 1774, 21. Again, when it was said (Journal, 33), after reciting other grievances under the statute of Í767, —* “ And amidst the just fears and jealousies thereby occasioned, a statute was made in the next year (1768) to establish courts of admiralty on a new model, expressly for the end of more effectually recovering of the penalties and forfeitures inflicted by, acts of -Parliament, framed for the purpose of raising revenue in America.” And again, in the address to the king (Journal, 47), it is said, — “ By several acts of Parliament, made in the fourth, fifth, sixth, seventh, and. eighth years of your Majesty’s reign, duties are imposed upon us for the purpose of raising a revenue, and the powers of the admiralty and vice-admiralty courts are extended beyond their ancient limits ; whereby our property is taken from us without our consent,” &c. Why this repeated allusion to the ancient limits of admiralty jurisdiction, by men fully acquainted with every part of English jurisprudence, -if ¡.hey had not believed it had existed in England at one time much beyond what was at that time its exercise' in her admiralty eourts ?
With these proceedings of the Continental Congress every member of the convention which framed the constitution was familiar. They knew, also, what had been,:the extent and the manner of the exercise of admiralty jurisdiction in the States, after the war began, until the articles of confederation had been ratifiéd, — what it had been thence to the adoption of the constitution. Advised, as they were by personal experience, of the difficulties which attended the
But, besides what we have already said, there is, in our opinion, 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 admiralty and 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 as if those cases were written upon its face. It would take away from the courts of'the United States the interpretation of what were eases of admiralty and maritime jurisdiction. It would be a denial to Congress of all legislation upon the subject. It would make, for all time to come, without an amendment of the constitution, that unalterable by any legislation of ours, which can at any time be changed by the Parliament of England, — a limitation which never could have been meant, and cannot he inferred from the words, which extend the jurisdiction of the courts of the United States u to all
No such interpretation has been permitted in respect to any other power in the constitution. In what aspect would it not.'be presented, if applied to the clause immediately preceding the grant of admiralty jurisdiction, — “ to all cases affecting ambassadors, other ministers, and .consuls ” ? Is that grant, too, to be' interpreted by the jurisdiction which the English common law courts exercise in cases affecting those functionaries, or to be,regulated - by what Lord Coke says, in 4 Inst. 152, to be their liabilities to punishment for offences ? Try the interpretation proposed by its application to the grant to Congress “ to establish uniform laws on the subject of bankruptcies throughout the United States.” Would it not result in this, that all the power which Congress had under that grant was the bankrupt system of‘England as it existed there when the constitution was adopted ? Such a limitation upon that clause we deny. We think we may very safely say, such interpretations of
We will now consider the proposition, that the test against admiralty jurisdiction in England and the United States is the competency of a court of common law to give a remedy in a given case in a trial by jury ;• or that in all cases, except in seamen’s wages, where the courts of common law have a concurrent jurisdiction with the admiralty, and can try the cause and give redress, that alone takes away the admiralty jurisdiction. It has the authority of Lord Coke to sustain it. But it was the effort and the design of Lord Coke to make locality the boundary in cases of contract, as well as in tort, that is, to limit the jurisdiction in .admiralty to- contracts made on the sea and to be executed on the sea ; and to exclude its jurisdiction in all cases of marine contracts made on the land, though they related exclusively to marine services, principally to be executed on the sea. To that extent the admiralty courts were prohibited by the common law judges from exercising jurisdiction,, until the unreasonableness and inconvenience of the restriction forced them to relax it in the case of seamen’s wages. " Then it was that the common law courts began to reflect upon what, jurisdiction in admiralty rested, and upon the principles upon which it would attach. With the acknowledgment of all of them ever since, it was affirmed that the subject-matter, and not locality, determined the jurisdiction in cases of contract. Passing over intermediate decisions showing the manner and the reasons given for '.the relaxation in the one case, and the revival of the other, for which the admiralty always contended, we will cite the case of Menetone v. Gibbons, 3 Durn. & East, 269, 270. Lord Kenyon and Sir Francis Buller say, in that case, the.question whether the admiralty has or has not jurisdiction depends upon the subject-matter. We wish it to be remarked, however, that the manner of proceeding is another affair, with which we do not meddle now.
It was only upon the principle that the subject-matter in cases of contract determined- the jurisdiction, that this court decided the cases of The Aurora,
If, then, in both classes of civil cases of which the instance court has jurisdiction, subject-matter' in the-one'class, and locality in the other, ascertains it, neither-a jury trial nor the concurrent 'jurisdiction of the common law courts can be a test for jurisdiction in either class. Crimes, as well those of which the admiralty has jurisdiction as those of which it has not, except- in cases of impeachment, the
Suits at- common law are a distinct class, so recognized in the constitution, whether they be such as are concurrent with .suits of which there is jurisdiction in admiralty, or not. Can concurrent' jurisdiction imply exclusion of jurisdiction from .tribunals, in cases admitted to have been cases in admiralty, without trial by jury ? Again, suits at common law indicate a class, to distinguish them from suits in equity and admiralty ; cases in admiralty, another class distinguishable from both, as well, as to the system.of. laws determining them as the manner of trial,, except that in equity issues of fact may be sent to the common law courts for á trial 'by-juryi Suppose, then,-the seventh amendment of the constitution had. .not been made, suits at the common law and in admiralty would have been tried in the accustomed way of each. But an amendment is made, inhibiting ány law from being passed which shall take away the right of trial by jury in suits at common law. Now by what rule of interpretation or by what course of reasoning can such a, provision be converted -into an inhibition upon the mode of trial of. suits which are not exclusively suits at common law, recognized, too, as such by the constitution, for'the trial of which Congress can establish courts which are not courts of common law, but courts of admiralty, without or with a jury, in its discretion, to try all issues of.fact ? Tried in.either way., {hough, they are still cases in admiralty, and this power; in Congress,' under the grant of admiralty jurisdiction, to try issues of fact in it by. jury, being as wéll known when the seventh amendment ■was made as 'it is now, is conclusive that it was done with reference to suits at common law alone. There is no escape from this result, unless, it is to be.- implied that the amendments were proposed by persons careless or ignorant of the difference in the mode of trial of suits,, at common law and in admiralty. But they were not so, for we find some of them in Congress, a few months after, preparing and concurring in the enactment-of a. law, that the “ trials of issues in fact, in the District Courts, in all causes except civil causes of, admiralty and maritime jurisdiction, shall be by juryi”
. In respect to the-clause in the ninth section of the. Judiciary" Act, — “saving and reserving to-suitors in all cases a common law remedy where the comm'on law is competent to give it,” —we
Having disposed of the objections to the jurisdiction of . the courts of ádmiralty of . the United States, growing out of the supposed limitation of them to the cases allowed in England'and from the- test of jury trial, we proceed to consider thát objection to juris diction in this case, because the collision took place infra corpus comitatus. ■ We have admitted the validity of this objection in England, but on the other hand it cannot be deñiecCíhat the restriction there to cases of collision happening super alturn mare, of without the fauces terree, was imposed -by the statutes of Richard, contrary to what had been in England the ancient exercise of admiralty jurisdiction in ports and hávefts within the ebb and flow of the' tide. Wé have .seen no case, ancient or modern, from which it can .correctly be inferred,''that such exercise of jurisdiction was prohibited by mere force of the common law. The most that can be said in favor of the statutes ófiRichárd being affirmative of the common law, are- the assertions of Lord' Coke and the prohibitions of the common, law courts, subsequent to.thpse statutes, and foundéd upon them, restricting the jurisdiction of the courts of admiralty to cases of collisions happening upon the high- seas ; contrary to what, we have already said was its ancient jurisdiction in ports and havens in. cases -of torts and collision, and certainly in opposition to what was then, and still continues to be, the admiralty jurisdiction, in cases of collision, of every other .country in Europe.
But giving to such prohibitions of the courts of common daw thé utmost authority claimed for them,— that is, that they áre af-firmances of the common law as interpretations of the statutes, of Richard, •— does it follow- that they- are to be taken as a rule in -the ¿.dmiraity courts o£, the United States in cases of collision ? Must, it not first be'shown that the statutes of Richard were in force áá such in America, and that the colonies considered and adopted that portion of the common law as applicable to their situation ? Now, the statutes of Richard were never in force in any of the colonies, except ás;.they were adopted by the legislation of some of them ; and the common law only in its general .principles, as' they were ap- '
Before leaving this point, however, we desire to say that the ninth section of the Judiciary Act countenances all the conclusions which have been announced in this opinion. ■ We look upon it as legislative action contemporary with the first being, of the constitution, expressive of the opinion of some of its framers, that the grant of admiralty jurisdiction was to be interpreted by the courts in accordance with the acknowledged principles of . general admiralty law. In that section the distinction is made betweén high seas and waters which are navigable from the sea by vessels of ten or more tons burden. Admiralty jurisdiction is given upon both, and though the latter is confined by the .language to cases of seizure, it is so with the understanding that such cases were strictly of themselves within the admiralty jurisdiction. It declares that issues of fact' in civil causes of admiralty and maritime jurisdiction shall not be tried by a jury, and makes so. clear an assignment to the courts of jurisdiction in criminal, admiralty, and common law suits, that the two last cannot be,so confounded as to place both of them under the seventh amendrtjent of the constitution, which is, — “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined, in any court of the United States, than according to the rules of the common law.”
As to the merits of this case, as they, are .disclosed by the evidence, we think that the Luda was run down, whilst she was in the accustomed channel of upward navigation, by the De Soto, being
There is'a point in this' case still untouched by us, which we will now decide., The libellants claim a recovery, independently of all the other evidence in the case, upon the single fact disclosed by it, that the collision happened whilst the De Soto was navigating the river at night without' such signal lights as are required by the tenth section of the act ctf the 7th of July, 1838 (5 Stat. at Large, 304). It is entitled, “An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or part .by steam.” The tenth section of it declares,— “ It shall be the duty of the master and owner of every steamboat, running between sunset and sunrise, to carry one or more signal lights, that may be seen by other boats navigating the same waters, under the penalty of two hundred dollars.” This section, and the other provisions of the act, except as jt has been changed by the act of 1843 (5 Stat. at Large, 626), apply to all steamers, whatever waters they may bd navigated upon, within the United States or upon the coast of the same, between any of its ports. Signal lights at night áre a proper precaution conducing to the safety of persons and property.. The neglect of it, or of any other requirement of the statute, subjects the masters and owners of steamboats to a penalty of two hundred dollars, which maybe recovered by suit or indictment {§ 11). But, besides the penalty, if such neglect or disobedience of the law shall be proved to exist when injury shall occur to persons or property, it would throw upon the master and owner of a steamboat by whom the law has been disregarded the burden of proof,- to show that the injury done was not the consequence of it.
It is said, in this case, that the De Soto had not signal lights. -Whether this be so or not, we do not determine ; but it. is certain, from some cause or other, that they were not seen by those navigating the Luda. If they had been, it is not improbable that the collision would have been avoided. - We do not put our decision of this case, however, upon this ground, but we do say, if a collision occurs between steamers at night, and one of them has not signal lights, she will be held responsible for all losses until it is proved that the' collision was not the consequence of it.
The act of, July 7th, 1838, in all its provisions, is obligatory upon the owners and masters of steamers navigating the waters of the United States,.whether navigating on waters within a State ox between States, or waters running from one State into another State, or on the coast of the United States between the ports of the same State or different States.
The question here is, how far the judicial powers of the District Courts extend in cases of admiralty and • maritime jurisdiction, as conférred by the constitution. With cases of prize, and cases growing out of the revenue laws, we' have no concern at present. • These depend on the general power conferred on the judiciary to‘ try all cases arising under the laws of the United States. It is-only with the extent of powers possessed by the District Courts, acting as instance courts of admiralty, we are dealing. The act of 17S8' gives the entire constitutional power to determine “all civil caifses of admiralty and maritime jurisdiction,” leaving the courts to ascertain its limits, as cases may arise. And the precise case here .is, whether jurisdiction exists to try a case of collision taking place on the Mississippi river, on fresh water slightly influenced by the pressure of tide from the ocean, but within the body of the State of Louisiana, and between vessels propelled by steam, and navigating that river only. It is an extreme case ; still, its decision ■ either way must govern all others taking place in the bays, harbours, inlets,, and rivers of the United States where the tidé flows ; as the. rule is, that locality gives jurisdiction in cases of collision, and, that it exists if the influence of the tide'is at all felt (2 Browne’s Civil and Admiralty Law, 110 ;
We have, then, presented, simply and broadly, the question whether the District Courts, when- acting as instance courts of, admiralty, have power to try any case-of collision occurring in the body of a county c)f any State.
In Great Britain, in 1776, when our separation from that country took place, the common law courts issued writs of prohibition to the Court, of Admiralty, restraining the exercise of this'jurisdiction in cases of collision taking place on rivers within the flow of tide, and within the body of an English county ; but the admiralty has continued at times to exercise the jurisdiction, nor do I think the validity of such a decree could be called in' question, becausé of the want of power. • In the British colonies on this’ continent, and elsewhere, the jurisdiction to proceed in rem (in such a case) has been undisputed, so far as I can ascertain, and a cause of collision in the instance court of admiralty is peculiarly' a suit, in wm, commencing with the arrest of the ship.'. Abbott on .Shipping, 233.
I agree with my dissenting brethren, 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-, as a' .general rule having few exceptions ; and so, also, to the common law modes of proceeding .in the exercise of the judicial power we must refer as a general rule covering the whole ground of remedial justice to' be administered by the national courts.' To this them are two promi
I have thus briefly stated my reasons for sustaining admiralty jurisdiction in this instance, because of the divided opinions of the judges on the question; and because I do not intend to be committed to any ..views beyond those arising on the precise case before the court. I therefore concur that the jurisdiction exists. The -facts in my judgment authorize the affirmance of the decree below.
Dissenting Opinion
dissenting.
It is important to notice in the outset some unusual features in this case. The Supreme Court is called upon to try the facts as well as the law in it, and to decide them between parties in interest who belong to the same .State, and as to a transaction \yhich happened, not on the high seas, as is usual in torts under admiralty jurisdiction, but two hundred miles above the mouth of the Mississippi river,- within the limits of a county, and in die heart of the State of Louisiana. A question of jurisdiction, therefore, arises in this. which is very important, and must first be disposed of. It
A; great principle at the foundation of our political system applies strongly to the present case, and is, that, while supporting all the powers clearly granted to the general government, we ought to forbear interfering with what has been reserved to the States, and, in cases of doubt, to follow where that principle leads, unless prevented by the overruling authority of high judicial decisions. So, under the influence of kindred considerations; in case of supposed improvements or increased convenience by changes of the law, it is' an imperative duty on us to let them be made by representatives of the people and the States, through acts of Congress, rather than by judicial legislation. ’ Paine’s C, C. 75. Starting with these views, then, what is the character of the adjudged cases on the facts here to which they are to be applied ? -
Those to be found on the subject of torts through the collision of vessels are mostly of English origin, coming from a nation which is not only the source of much of our own jurisprudence, .but entitled by her vast commerce to great respect in all matters of maritime usage and admiralty law. No principle appears to be better settled there than that the court of admiralty has not jurisdiction over torts, whether to person or property, unless committed on the high seas, and.out of the limits of a county. 3 Bl. Com. 106; 4 Instit. 134; Doug. R. 13; 2 East’s Crown Law, 803; Bac. Abr., Courts of Admiralty, A; 5 Rob. Ad. 345; Fitzh. Abr. 192, 416; 2 Dod. 83; 4 Rob. Ad. 60, 73; 2 Browne’s Civ. and Ad. Law, 110, 204; 2 Hag. Ad. 398; 3 D. & E. 315; 3 Hag. Ad. 283, 369; 4 Instit. 136; Chamberlain et al. v. Chandler, 3 Mason’s C. C. 244. This is not a doctrine which has.grown up there since the adoption of our constitution, nor one obsolete. and lost in the mist of antiquity; but it is laid-down in two acts of Parliament as early as the fourteenth, century, and has been adhered to uniformly since, except where modified within a few years by express statutes. The Public Opinion, 2 Hag. Ad. 398; 6 Dane’s Abr. 341.
The first of these acts, the thirteenth of Richard II., declared that the admiralty must “not meddle henceforth of any thing done within the realm, but only of a thing done upon the sea.” 3 Hag. Ad. 282; 1 Statutes at Large, 419. Then, in two .years after,
Among the cases in point as to this, both long before and since our Revolution, one of them, Velthasen v. Ormsley, 3 D. & E. 315 happened in A. D. 1789, the very year the constitution was adopted. See also Violet v. Blague, Cro. Jac. 514; 2 Hag. Ad. 398; 4 Instit. 134 - 138; 6 Dane’s Abr. 341, Prohibition. And one of the most strenuous advocates for admiralty jurisdiction in Great Britain admits, that for damages, done by the collision of ships, u if done at sea, remedy can be had in the admiralty, but not if it happen within the body of a county.” 2 Browne’s Civ. and Ad. Law, 111.
Since then, on his complaint, an express statute has been passedj 1 and.2 George IV., ch. 75, § 32, that any damage done by a foreign ship, “ in any harbour, port, river, or creek,” may be prosecuted either in admiralty or common law courts. The Chris-tiana,' 2 Hag. Ad. 184 ; 38 British-Statutes, ch. 274. And, later still, a like change is considered by some , to be made concerning injuries by domestic ships, under the 4 and 5 Victoria, ch. 45. See it in the Statutes at Large. But till these statutes, not a case of this kind can probably be found sustained in admiralty, even on the river Thames, at any place within the body of a county, though .yearly covered with a large portion of the navigation of the world. . See cases before cited, and 1 Dod. Ad. 468; 1 Wm.
Nor is this a peculiarity in the admiralty system of that country .confined to torts alone. But the same rule prevails as to crimes, and has always been adhered.to, with ¿.single exception, originally made in the statute itself of Richard, as to murder and mayhem committed in g eat vessels in the.great rivem below the first bridges.
The next inquiry is, if this distinction, confining the jurisdiction in admiralty over torts to such as happen on the high seas without the limits of a cpunty, rested on such important principles as to be adopted in this country ? Some seem disposed to believe it of so little consequence as hardly to have been worth attention. Bpt this is a great mistake. The controversy was not in England, and is not here, a mere struggle between salt and fresh water,'— sea and lake, — tide and ordinary current, —w'ithin a county and without, ■— as a technical matter only.
But there are imbedded beneath the surface three great questions of principle in connection with these topics, which possess the gravest constitutional character. And they ean hardly be regarded as of little consequence here, and assuredly not less than they possessed abroad, where they involve, (1.)\the abolition of the trial by jury over large tracts of country, (2.) the substitution there of the civil law and its forms for the common law and statutes of the States, (-3.) and the encroachment widely on the jurisdiction of the tribunals, of the State over disputes happening there between its own citizens.
Without intending' to enter with any minuteness into the origin arid history of admiralty-jurisdiction abroad, it will be sufficient, in order-to illustrate the vital importance of this question of locality, to say that the trial by jury and the common law, so ardently adhered to by the Anglo-Saxons, was - soon encroached on after the Conquest by the Norman admirals claiming jurisdiction v-over certain maritime matters, not only on the ocean, and trying them without a jury, and'on principles of their favorite civil law, but on the waters within the body, of a county, and-where a jury’could easily be summoned, and where the principles of the' common law had ever in England, been accustomed to prevail. A struggle therefore, of "course, soon sprung up in respect to this,, as their monarchs had begun to organize an admiral’s court- within a century after the Conquest, but without any act of Parliament now found to vindicate it. See the Statutes, at Large, and 3 Reeves’s History of the English Law, 197. And laying down some regulations' as to its powers by ordinances, as at Hastings, under Edward the First, but not by any acts of Parliament consulting the wishes of the barons and the commons. Whether this was constitutional or not, it was sufficient to make theni look on the,, admiralty as a foreign and odious interloper. Reeves says (3 Reeves’s-.Hist, of English Law, 137),— “ The office of admiral is considered by the French as a piece of state invented by them.” And whether it was imported thence by the conquerors, or originated with the Rhodians, or Romans, or Saracens, rather than the French or English, its principles seem to
In the course of a few years, that same sturdy spirit, which in Magna Charta was unwilling to let the laws. of England be changed for a foreign code, proceeded, by the 13th and 15th of Richard II., to denounce and forbid the encroachments of the admirals, and their new forms and code of the civil law, into the bodies of counties and the local business of the realm. It produced those two memorable acts of Parliament, never since departed from in torts or crimes except under express statutes, and fixing the limit of jurisdiction for them, at the line between the counties and the high seas. And they have ever since retained it there, except as above named, from the highest principles of safety to the common law, English liberties, and the inestimable trial by jury, — principles surely no less dear ih a'repuhlic than a monarchy.
If the power of the admiral was permitted to act beyond that line, it was manifestly without the apology which existed thus far on the ocean, of there being no jury to be called from the vicinage to try the case. Prynne’s Animadversions, 92, 93 ; Fitzh. Abr. 192,216'. And if the act, by an alias and a fiction, was alleged to be done in the county, when in fact it happened at a distance, on the seas, the jury would be less useful, not in truth residing near the place of the occurrencé, not acquaints with the parties or witnesses, and the casé itself not being one happening where the common law usually operated, and with which the people ánd the judges were familiar.
This last circumstance furnished another reason why the admiralty court was allowed there, and should be here, to continue to exercise some jurisdiction, beside their militáry and naval power, over the conduct of seamen and the business of navigation when foreign. . Because such matters were connected with the ocean, with foreign intercourse, foreign laws, and foreign people, and it was desirable to have the law as to them, uniform, and administered by those possessing' some practical acquaintance with such subjects ; they being, in short, matters extra-territorial, international, and •■peculiar in some degree to the great highway of nations. It is when thus confined to that great highway and its concerns, that admiralty law deserves the just , tribute sometimes paid to it of expansive wisdom and elevated equity.
The sea being common to all nations, its police and the rights and duties on it should be governed mainly by one code, known to all, and worthy to be respected and enforced by all. This, it will be seen, indicates in letters of strong light the very line of boundary which we have been attempting to draw, on grounds of deep principle, here as well as in England. It is the line between State territory ahd State laws on the one hand, and the ocean, the- territory of all nations, and the laws of all nations, the admiralty and sea laws of all nations, on the other hand, leaving with those, for instance, residing within local jurisdictions, and doing business there, the local laws and local tribunals, but with those whose home and business are on the ocean the forms and laws and tribunals which are more familiar to them. This line being thus a certain and fixed one, and resting on sound principles, has in England withstood the shock of ages. It is true, that some modifications have been recently .made'there, but only by express ■ statutes, and carefully guarded so as not to innovate on the common law and the trial by jury. That this line of distinction was in fact appreciated quite as highly here as in England is shown by various circumstances that’ need not be repeated ; but among them were solemn resolutions of the old Congress against acts - concerning trade and revenue, extending the power of admiralty courts beyond their ancient limits, and thus taking away the trial by jury. 1 Journal, 19, 20. And as a striking evidence of the dangerous importance attached to this outrage, it was remarked in the convention of North Carolina, that “ the Stamp Act and the taking away of the trial by jury were the principal causes of resistance to Great Britain.” 4 Elliot’s Deb. 157. Indeed, this same jealousy of the civil law, and its mode of proceeding without a jury, led, in the first legislation by Congress, to forbid going into chancery at all, if relief at law is as ample and appropriate. See sixteenth section of Judiciary Act, 1 Statutes at Large, 83. So as to admiralty, a statute of Pennsylvania,-pássed during the Revolution, allowed it only in cases “ not cognizable at common law.”
In .shor.t, instead of less, much additional importance should be attached to this line of distinction here, beyond what exists in England; because it involves here not only all the important consequences it does there, but some which are new and peculiar. Instead of being, as it once was there, a contest between courts of one and the same government, it may become here a struggle for jurisdiction between courts of the States and courts of the United ' States, always delicate, and frequently endangering .the harmony of our political system. And while the result there, in favor of the adrniralty, would cause no additional inconvenience and expense, as all the courts sit in one city, such a result here compels the parties to travel beyond their own counties or States, and in case of appeal to come hither, a distance sometimes of a thousand or fifteen hundred miles.
Admitting, then, as we must, that the doctrine I have laid down as to torts was the established law in England at our Revolution, and was not a mere technical doctrine, but rested on great principles, dear to the subject and his rights and liberties, should it not be considered as the guide here, except where altered, if at 'all, by our colonial laws or constitutions, or acts of Congress, or analogies which are binding, or something in it entirely unsuitable to our condition ? The best authorities require that it- should be. 1 Peters’s Ad. 116, 236, note ; 1 Peters’s C.C. 104, 111—114 ; 1 Paine’s C. C. 111;
Some argue that the constitution, by extending the judicial power to u all cases of admiralty and maritime jurisdiction,” meant cases different from those recognized in England as belonging to the admiralty at the Revolution, or those as modified by ourselves when colonies.' These jurists stand prominent, and their views seem to-day adopted by a portion of this court. See the argument in De Lovio v. Boit,
• The authorities which I have cited against this position seem to me overwhelming in number and strength ; and some of them come from- those either engaged in making the constitution, or in construing it in the earliest stages of its operation. Let me ask, What books had we for admiralty law, then, as well as common law, — both referred to in the constitution, — but almost exclusively English-ones ? What had the profession here been educated to administer,- — English or French admiralty ? Surely the former. The judges here were English,' the colonies English, and appeals, in all cases on the instance side of the court, lay to the English admiralty at home.
It is inferred by some, from 6 Dane’s Abr. 352, 353, that cases in admiralty are to. be ascertained, not by English law at the Revolution, but by principles of “ general-law.” And Judge Washington held, it is said, we must go to the general maritime law of .the world, and not to England :alone. Dain et al. v. Sloop Severn, 4 Hazard’s Penn. Reg. 248, in 1828. But the whole tenor of Mr. Dane’s quotations and reasons,’ in respect to admiralty jurisdiction, is to place it on the English basis ; and Judge Washington, in several instances, took it for,his guide, and commended it as the legal guide.. In the United States v. Gill,
Neither of these eminent jurists was éver likely to go to the laws of Continental Europe as guides, unless in cases not well settled’ either here or in England, and then, as in the common law courts and in chancery, they might properly search all' enlightened systems of jurisprudence for suggestions and principles to aid. Chaneellqr Kent, also, with his accustomed modesty, yet with clearness, supporting a like doctrine with that just .quoted from Judge Washington, observes, — “But I apprehend it may fairly be doubted,' whether the constitution of the United States meant,, by admiralty and maritime jurisdiction, any thing more than that jurisdiction which was settled and in practice in this country under die English jurisprudence when the constitution was made.” 1 Kent’s Com. 377. Another strong proof that this was the opinion prevailing here at that time is, that a court of admiralty was established in Virginia, in 1779, under the recommendation of Congress to all the States to make prize courts ; and, by the act of Assembly, it is expressly provided that they are - to be “governed in their proceedings and decisions .by the regulations of tibe Congress of the United States of America, by the acts of the General Assembly, by the laws of Oleron, and the Rhodian and Imperial laws, so far as they have been heretofore observed in the English courts of admiralty, and by the laws of nature and nations.” 10 Hening’s Stat. 98. They thus, after our own laws, State and national, made England the guide.
ft is said by others, appealing to feelings of national pride’, that w;e are to look to our own constitution and laws,, and not to Eng
Thus the Continental jaw would carry admiralty jurisdiction over all navigable streams. Yet this court has deliberately refused to do it, in-The Thomas Jefferson,
So, when the constitution and the acts of Congress speak, as they do in several instances, of the <£ common law,” do they not 'mean the English common law ? This court so decided in Robinson v. Campbell,
It would be extraordinary, indeed* for this court tó undertake to exercise a legislative power as to this point, and without warrant to ■Search the world over and select, for the trial of private rights, any law they may prefer. On the contrary, its duty rather is to declare. the law which- has' already become ours, which we inherited from 'our ancestors or have enacted ourselves, and which is not vagrant
That Congress possess the power to do this cannot be plausibly questioned. The late law as to jurisdiction over the Lakes, which is given to the District Court, but not as an admiralty case under the constitution, and with a jury when desired, is a strong illustration of legislative opinion being the way we contend.
Any expansion or enlargement can be thus made, and by withdrawing in part the jurisdiction now conferred on the District Courts in any matters in admiralty, Congress can also abridge’ the exercise of it as experience and time may show to be wise. For this reason, we are unable to see the force of the argument just offered by four members of this court, that if the English admiralty law was referred to in the expression of “ all cases of admiralty and ■maritime jurisdiction,” no change in it could be made, without being at the trouble and expense of altering the constitution.
But in further answer to this, let me ask if the constitution, as they contend, was meant to include. case's in admiralty as on- the Continent of Europe rather than in England, could the law as to them be more easily altered than if it was only the law of England ? And would it not take the interpretation of the admiralty law as much from the courts in one case as in the other ?
It is conceded, next, that “legislation has, in some respects, in England, since 1789, changed and improved her admiralty proceedings ; but this only furnishes additional evidence, that die law was different when our constitution was framed, and that these .changes, when useful and made at all, should be made by legislation and not by judicial construction, and they can rightfully have no force here till sp made. United States v. Paul,
Finally, then, the law, as it existed in England at the time of the
. I am compelled to go into these details more than would otherwise be done, considering their tediousness, on account of the great reliance on them in one of the opinions just read'. In order to operate on the point under consideration, it will be seen that any colonial change must have been so clear and universal as to have been referred to in the constitution and the act of-Congress of 1789, and to be the meaning intended by their makers to be embraced' in the expression of “ cases of. admiralty and maritime jurisdiction,5 • rather than the meaning that had usually been attached to them by the English'language and the judicial tribunals of England, for centuries. And this1 change, likewise, must have been clearly meant to be referred to and adopted, notwithstanding its great encroachment in torts on the boasted trial by jury, and which encroachment they were denouncing as tyranny in other cases, and notwithstanding its natural consequences would be new collisions with die powers of the State'tribunals, which they .were, most anxious to avoid. I have searched in vain to find acts .of assembly in any .of the thirteen colonies, before 17.76, making such a change, much less in a majority or all of them. Nor can I find any such judicial decisions by vice-admiralty courts in any of'them, much less in all. Nor is it pretended that any acts of Parliament or judgment's in the courts in England had prescribed a different rule in torts for the colonies from what prevailed at home.
It would be difficult, thén, to show that a law had become changed in any free country,, except by evidencé -contained in its legislátion, or constitutions, or judicial decisions. But some persons, and among them a portion of this bench, have referred to commissions of office to vice-admirals as evidence of a change here ; and some, it is feared, have been misled by them. 1 Kent’s Com. 367, note ; 2 Gall. 373.
These-commissions, in the largest view, only indicated what might be done, not what was actually afterwards done under them. In the next place,, all must see, on reflection, that a commission issued by the king could not repeal or alter the established laws of the land.-
This limitation is inserted several.times, from abundant caution, in the commission in Woodcock, 66, 67, 69.
But beside these conflicting features in different parts of them, the commissions of vice-admirals here seem, in most respects, copies of mere forms of ancient date in England (Woodcock’s Brit. Col. 323), and, of course, were never intended to be used in the colonies as alterations of the laws, and were, as all know, void and obsolete in England when differing from positive statutes. So virtually it was held in the cqjonies themselves. The Little Joe, Stewart’s. Ad. R. 405 ; and The Apollo, 1 Hag. Ad. 312; Woodcock’s. Laws and Const, of the Colonies, 123. These commissions, also, ■ if- they prove any thing here actually done different from the laws in England, except what was made different by express statute, as to matters connected with breaches of the laws of revenue and trade, and not as to torts, prove quite too much, as they go above tidewater and even on the land.
But it is not believed that they led to any practices under them here different from the laws at home in respect to torts. None can now be found stated, either in reports of cases or contemporaneous history.' Probably in the colonies the same rules - as at home prevailed on this, for another reason ; because no statute was passed as to torts here,-and appeals to the admiralty at home existed, on the instance side of the court, till a recent change, so as to preserve uniformity in the colonies and at home. Bains v. The James,
In accordance with this, Tucker, in his Appendix to Part I-
Two things are clearly- to. be inférred from him : — 1st. That adiriiralty and maritime cases extended only to matters “ arising on the high seas” ; and, 2d. That the practice and rules of decision in. admiralty were' the same .here as in England.
,' Thus, in chapter 13, page 27l, he says “ In the first place, as to the jurisdiction exercised in' the court of vice-admiralty in the colonies, in deciding' all maritime causes, or causes arising on the high seas, I have only to observe, that it proceeds in the same manner that the High Court qf Admiralty in England- does.’’ “ The only book that I have met with, which treats of the practice of the High. Court of Admiralty in England, is Clarke’s Praxis Admiralitatis, arid this is the book used by the practitioners in the colonies.”
In connection with this, all the admiralty reports we have of cases •before the Revolution, and of cases between 1776 and 1789, seem to corroborate the. same view, and. are worth more to show the actual jurisdietiori here than hundreds of old commissions containing obsolete powers riever enforced. There is a manuscript volume of Attcbrnuty’s decisions made in . the vice-admiralty court in Massachusetts, about 1740. (See Curtis’s Merchant Seamen, 348, note).. It will be difficult to find in them, even in one colony, much more' in the thirteen,' clear evidence' of any change here, before the Revolution, in respect to the law concerning the locality of torts.
■The very first casé of Quitteville v. Woodbury, April 15, 1740, is a libel for a trespass. But it- is carefully averred to have taken place • “ at the Bay;of Honduras, upon the open sea, on board the ship King George.”
So a few cases before the adoption of the constitution are reported iti Bee’s Admiralty Decisions, though they are mostly on .contracts. But they all make a merit of conforming to the course in the English admiralty, rather than exhibiting departures from and enlargements of its jurisdiction. See one in A. D. .1781, Bee’s Adm. 425, and.another in the same year (p. 419), and another.in 1785 (p. 369). But the most decisive of all is a case in A. D. 1780, in the High Court of Appeals in Pennsylvania, Montgomery v. Henry et al.,
It was a proceeding in admiralty, regarded by some as sounding in tort, and by some in contract; but as to the line of jurisdiction, this having happened, as averred, on the river Delaware, the court say, through Reed, their president,— “ But it appears to us, that from the 13th and 15th Richard II. the admiralty has had jurisdiction on all waters out of the body of the county. There has been great debate as to what is meant by high seas. A road, haven, or even river, not within the body of the county, is high sea in the'idea of civilians. Therefore, if the river Delaware is-out of the body of any county, we think it clear that it is within the admiralty jurisdiction.”
■ In short, as to this matter the first principles of English jurisprudence, as applicable to her colonies, show that there could be no difference here on a matter, of this kind, unless authorized by express statute at home, extending to the colonies, or by acts of assembly here, expressly sanctioned.at home,
Blackstohe says, — “For it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force.” 1 Bl. Com. 108 ; 2 P. Wms. 75. Exceptions of course exist as to matters not applicable to their condition, but hone of them reach'this case,-ana require consideration.
Were not we then British colonies, arid beginning here in an uninhabited country, or, what is equivalent, tenanted by a péople not having any civilized laws ? Why, then, were not the principles of English admiralty law in force here in the vice-admiralty courts, as
What is left, then, for the idea to rest on of a change in respect to the locality of torts here, to give admiralty courts jurisdiction over them different from what existed in England in 1776 ? We have already seen that there is nothing in the constitution, nothing in any acts of Congress, nothing in any colonial laws, or colonial decisions in the vice-admiralty courts. Some venture to infer it merely from analogies. But denying the competency'for courts of •limited jurisdiction, like ours, to do this, if impairing jury trials and encroaching on State jurisdictions, without any express grant or authority to that effect, let me ask, what are the analogies ? The only ones which can be imagined are cases of crimes, contracts, and seizures for breaches of laws of revenue and trade. But the decisions as to crimes prove directly the reverse.
In respect to them, no change whatever on this point .-has occurred, and the rule recognized in this country as the true one concerning their locality is, like that in England, if tried in admiralty as being crimes by admiralty law, they must have been committed without the limits of a county or State. 4 Mason, C. C. 308; 5 ibid. 290;
And all crimes on .the waters of the United States made punishable in the courts of the United States, by acts of Congress, with few or no exceptions, if connected solely with admiralty jurisdiction, are scrupulously required to have been committed on the sea or the high seas, “ out of the jurisdiction of any particular State.”
In all criminal cases in admiralty in England, the trial has also been by jury, by'an express act of Parliament, ever since the 32 Henry VIIL (Com.-Dig., Admiralty), and so far from the same principle not being considered in force here, the constitution itself, before any amendments, expressly provided fix ail criminal.trials of every kind being by a jury. Art. 3, § 2, and Federalist, No. 81.
So, the old Confederation (Article 9th) authorized Congress to provide courts for the trial “of piracies and felonies committed on the high seas.” 1 Laws (Bioren’s edit.), p. 16. And when Congress did so, they thought it expedient to adopt the same mode Of trial for acts “ on the sea ” as on the land, and “ according to the course of the common law ” ; and under a sort of mixed commission, as under the 28 Henry VIII., to try these offences, consisting of the justices of the Supreme Court in each State, united with the admiralty.judgé, they imperatively required the use of a jury. 7 Journ. of Old Cong. 55 ; Duponceau- on Juris. 94, 95, nóte.
But as the question in relation to the locality of contracts here is still undecided, and is before this court awaiting, another argument, on account of divisions of opinion among its;members in respect to it, no analogy can be drawn to govern other questions from what, is itself thus uncertain ; and it is not deemed decorous, by me. to discuss ■here the moot question as to contracts, or, till the other action Í¡ending in relation to-them is itself settled, to draw any inference rom what I may suppose to be, or not to be, their locality.
Without, then, going farther into the subtilties as to the locality or want of locality of contracts within admiralty jurisdiction, so fully discussed in
And above all this, those very writers who contend that locality does not govern the jurisdiction over contracts admit that it controls, and always has controlled, the right to try both torts and crimes (with'the exceptions before named, and not influencing, this question), during all the fluctuations arid struggles about contracts during the last four hundred years.
In the resolutions said to have been prepared by the judges in 1632, with a view to arrange differences concerning jurisdiction, no change or modification is made as to torts. Dunlap’s Prac. 13, 14 ; Bevans’s case,
Nor was there any ip the mutual arrangement between the differ-, ent courts in 1575. See it, in
Hence, even in admiralty writers and admiralty courts, it is laid down repeatedly, “ in torts, locality ascertains the judiciai'powers.” And again, “ in all matters of tort, locality is the strict limit.” 2 Bro. Civ. and Ad. Law, 110. So in The Eleanor, 6 Rob. Ad. 40,
Lastly, in respect to analogies in seizures for breaches of the laws 'of revenue and trade, it is claimed, that some change has occurred there,.which should influence the jurisdiction over, torts. But these seizures are not for torts, nor has the change in relation to the trial of them happened on any principle applicable to torts.. Moreover, it has been made as to seizures only under express statutes, and the construction put on those statutes ; and if this is to be followed by analogy, no change can be made as to torts except by express statutes.
. But there has never been any such statute as to them, and if without it-the change was made by analogy, tide-waters would not be the test, as is here contended, but, like cases of, seizures, any waters navigable by a boat of ten tons burden. It is even a matter of very grave doubt, whether a mistake was not committed in refusing a trial by jury in cases of seizure, under our Judiciary Act, whenever desired, or at least whenever not made on the high seas. Kent, Dane, and several others, think the early decisions made on this, and which have since been merely copied, were probably erroneous. 1 Kent’s. Com. 376 ; 6 Dane, 357.
So thought Congress, likewise, when, Feb. 13tb, I "8 01 (sec. 11th), it conferred on the Circuit Court jurisdiction over “ all seizures on land or water, and all penalties and forfeitures made, arising, or accruing under the law's of the United States.” This was original cognizance, though not in -a court of admiralty, and properly treated seizures on water as on land, and to be all of course tried by a jury. 2 Stat. at Large, 92. This was a change made by Congress itself, aided by some of the first lawyers in the country. But as the whole statute was repealed, on account of the obnoxious circum.stances as to the judges under which it was passed, all the changes fell with it.
. The admiralty in England did not exercise any jurisdiction over seizures fpr revenue, though on the -ocean.
Now, after these reprobations of such a practice, —after two specific amendments- to the constitution to secure the trial by jury in cases before doubtful,•— and after three clauses in the Judiciary. Act, expressly allowing it in all proper cases, — who can believe that they intended in the ninth section of that very act to use language which ought to be construed so as to deprive them entirely of a jury trial in that' very' class of cases where the refusal of it had long been denounced by them as oppressive, unlawful,, and one of the grounds for a revolution ? Should we thus brand them with duplicity, or tyranny ?
As a single illustration that their views in the act of 1789 have probably been misconstrued or misapprehended, if seizures for breaches of the jaws of revenue and trade were in reality “ cases of admiralty and maritime jurisdiction,” as meant in the constitution, then no statute was necessary, like á clause in that of 1789, to make them so, and to make them so not at the line of tide-water, which is here contended for, but wherever a boat of twenty tons could go from the ocean. And if they were not such cases to that extent and in that manner without a statute, but were common law and exchequer cases, thep.it is certain a statute would not make them “admiralty cases,” but might devolve their - trial. on the District Court, allowing a jury, as that trial was expressly reserved by the amendment to the constitution in all common law cases. Stokes discloses the derogatory reason assigned for such a violation of our forefathers’-rights by some of the British-statutes before the Revolution (Stokes on Constitution of Colonies,-360). With much naivete,- he says, — “ In prosecutions in the courts of-vice-admiralty in'the colonies for the breach of any act of Parliament relating to the trade and-revenue of the colonies, all questions as well of fact
Whoever could conjecture, for such a reason, that a statute was intended to have such a construction, seems to have forgotten the remonstrances of our fathers against the- odious measures of England corresponding with such a construction ; and to have overlooked . the probable difference in the feelings of juries towards law's made by themselves- or their own representatives, and those made by a Parliament in which they wer.e not represented, arid whose doings seemed often designed to oppress, rather than protect, them.' And what presumption is there that an exclusion of juries from trials as to trade and revenue, for causes like the§e, was meant to be extended to torts ?
The -reason is totally inapplicable, and hence the presumption .entirely fails. What a stretch of presumption without sufficient data is it to infer that this resisted case of seizures is first strong evidence of a lárger jurisdiction in admiralty established here, and likely to be adopted under the constitution by those who had always ardently opposed it, and next is evidence of a larger jurisdiction in- other matters, disconnected-entirely with-that and all the reasons ever urged in support of It ?
The last inquiry on this question of jurisdiction is, What have been the 'decisions concerning, the. locality of torts in admiralty in the courts of the United States since the constitution 'Was adopted ?
It is the uncertainty and conflict, concerning these, which has in part rendered it necessary to explore with so much care how the law- was here, when our present system of government went into operation-
It is a matter of surprise, on a critical examination of the books,to see upon how slight foundations this claimed departure from the
They are sometimes mere dicta, as the leading case of De Lovio v. Boit, in
' The parent of many bf these mistaken references, and of the decisions as to seizures, is the-case of The Vengeance, in
' Some of the references, likewise, are to cases of prize, which in England as well as here never depended on locality, like the high seas, but might be even on land, and were at first conferred on the admiralty courts by special commission, and were not originally a part of its permanent jurisdiction.
There is an expression in 12 Péters, 76, which is supposed by some to sanction a 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 land1 or above tide-water, could they be tried there as admiralty of-fences, but only as offénces defined and punished by acts of ¡Congress under the power to regulate commerce. United States v. Coombs,
Luring' 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 jurisdiction had been settled by previous decisions, he does not go into an examination of its principles, and' cites only one authority (
.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” (
Moreover, as to American authorities diréclly against these supposed changes as to torts, it is hardly possible to find any thing stronger than the absence we have just1 referred to, almost entire, of any attempt in actions to sustain the jurisdiction in admiralty
And no one can read the learned Digest of Dane without seeing that in torts he corfsiders 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 to confer jurisdiction on the admiralty. Thackery et al.,
But, beside this, .one resolve of the old Congress shows, that they considered the line of the county as the true one ; and hence its violation in cases of trade and revenue, under statutes passed to oppress them, caused their remonstrances that the vice-admiralty courts had transgressed the ancient limits of the bodies of counies. 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 aqua ; but whether it be upon any water within any county.” Sea Laws-, 234. Again, the ebb and flow of tide, to give jurisdiction to the admiral, means on the coast jputside. Fortescue, De Laudibus L. Ang. 68, note. So in 2 Madison Papers, 799, 800, it will be seen that Judge Wilson deemed the admiralty jurisdiction to relate to what the States had not exercised power over, and to the sea. So in The Federalist, No. 80, cases arising on the high seas are said to bo those embraced.
There is a similar expression in Judge Story’s Commentaries on the Constitution (vob 3, § 1667), as to crimes, in speaking of the existence of admiralty jurisdiction over them in creek's “ and bays within the ebb and flow of tide ” ; but he takes care to add, very properly, “ at least in such ;is are out of the body of any county in a State.” Probably the true origin of-the whole error was by looking to expressions about tide-water, or the ebb and flow of tide, without noticing further that the act must be in such tide-waters as “ are out of the body of any county in a State,” and that this was indispensable to be observed, in order to protect the invaluable principles we have been discussing.
The power of the general government and its courts over admiralty matters was doubtless conferred on account of its supervision over foreign trade and intercourse with other nations, and not to regulate boats like these, far in the interior, and never going to any foreign territory, or even adjoining State, much less touching the ocean. Nothing can be more significant of the correctness of this limitation to matters on the ocean, than the remarks of Chief Justice Jay, in Chisholm v. Georgia,
Our forms of proceeding, also, in admiralty, and which are founded
Half the personal quarrels between seamen in the coasting trade and our vast shore fisheries, and timber-men on rafts, and gundalo men, and men b flat boats, workmen in the seacoast marshes, and half the bjuries to their property, are where the tide ebbs and flows in our rivers, creeks, and ports,'though not on' the high seas: Rut they never were thought to be cases of admiralty jurisdiction when damages- are claimed, — :much less when prosecuted for crimes ; ■never b creeks, though tbe tide ebbs arid flows there through half .of our seaboard towns, —never b rivers. All is within the county, and is usually tried before State officers and by State laws..
It has just been remarked by one of my brethren, as to torts and crimes, as has been before- said by some b controversies as to contracts, that the statutes of Richard the. Second were not b force b the colonies.' See 2.Gall. 398, 473 ; 1 Peters’s Ad. 233 ; Ware, 91 ; Hall’s Ad. Pract. 17, Pref. I cheerfully concede it may well be doubted whether any portion of the common law or English statutes, passed before the settlement of this country, became b force here, unless suited to our condition, or favorable to the subject and his liberties. But these statutes were both. They were suited to the condition of those attached to the common law and jury trial b the colonies, no lefes than at home, and they were in favor of the' rights .and liberties of the subject, to be tried by his own and not foreign laws, and by a jury for all matters happening within the realm, and not on the high seas. And so far from ancient statutes of that character not having any force' here, they had as much as those parts of the common law which were claimed, October 14,1774, by Congress among the “indubitable rights and liberties to-’which the respective colonies are entided.” 1 Journal of Congress, 28. They .came here with them, as a part of their admiralty law, as much as came any portion of the common. law, or the. trial by jury. They came as much as Magna Charta or the Bill of Rights, and they-should ■ exist here how, in respect to all matters, with all the vigor that characterized them at home at the time of our Revolution.’ Baldw. C. C. 551 ; Ramsey v. Alleyne,
The principles, dear to freemen of the Saxon race, — préferring the trial by jury, and the common law, to a single judge in admiralty, and the civil law,- — which were' involved in these statutes, could be no less highly prized by our American fathers than their.English ancestry, especially when we look to their numerous resolutions on
One of our soundest jurists has said long since, — “• The common' law of England, and every statute of that country made for. the benefit of the subject before our ancestors migrated to this country, were, so far as the same were applicable to the nature of their situation, and for their benefit, brought over hither by them; and wherever they are not repealed, altered, cr 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 lm. Op. 75 ; Woodcock, 159.
hether 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. 1801j and then in a District Court, in direct opposition to the views expressed in 1 Dali. 53. The point then decided under that novel notion was, that a lien existed for repairs of■ a domestic ship, without the aid of any statute, and has been since expressly overruled by this court in The General Smyth,
Indeed, Justice Story, as a commentator in respect to other clauses of the constitution no more open to such a construction than this, concedes that they are.to be “ understood”- “ according .to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their emigration, and with which all the American States were familiarly acquainted.” 3 Story’s Com. on the Constitution, 506, § 1639.
Nor let it .be again offered in extenuation, that, the power being . concurrent in thé common law courts, the plaintiff from choice goes into the admiralty; because the other party, who is .often prosecuted only to be vexed and harassed, and who has rights as well as the plaintiff, may be thus forced into admiralty, rather than the
I have thus examined this question in all its various aspects, and endeavoured 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 othér 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, proposfe to dwell much on this peculiar condition of ours, though some members, of this court have just urged it earnestly ás a reason why the samé 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, or an act of Parliament ? And if not done when colonies, but supposed to be proper after the Revolution, would not the framed: of,the.-constitution, or of the Judiciary Act, have known it as quickly; 3ÍI fully as this court ? and was it not more proper for them .to have made such, a change than this court ? If our political institutions or principles required it,, did not . they know, and should not they have attended to that rather than we ? If such a change had already happened in the then thirteen colonies, .and was too well known and acquiesced in,
. Indeed, so far from there being any thing'in our condition as colonists, or in public opinion at the Revolution, which .demanded a change enlarging admiralty forms and jurisdiction, the old Congress specially resolved, November 25th, 1775, when recommending to the-colonies to institute courts to try-captures, or devolve the power on those now existing, that they “ provide that all trials in. such case be had by a jury,” which was-going further in their favor, instead of short .of what had ever been done in England. And, in 1779, Virginia established admiralty courts, under recommendation of the old.Congress, and expressly allowed a jury in all cases where either party desired it, if both were citizens. 10 Hening’s :Stat. 101. The same is understood to have been done in several other States.- See The Federalist, No. 83. In 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 States. In some
And to the objections made against adopting the constitution, because the trial by jury might be restricted under it and suitors be compelled to travel far for a hearing in ordinary cases (1 Gales’s Debates in First Congress)', it was argued that Congress would possess the power to allow juries even in cases in admiralty (The Federalist, N.o. 83), and afterwards, by the original amendments to the constitution, it was made imperative to allow them 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 com-mpn 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 State tribunals, to defend their rights under a different forum and a different system of laws.
After, these additional proofs of the cartion of our ancestors to check (the usual admiralty power of trial without a jury, and more especially to prevent any extension of it, could they for a moment, when so jealous of the general government' and its overshadowing powers, wish to extend them further'than ever before, either here or in England ?
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 ; ¿ouch’s Elements of Jurisp. ,382. But the rule of tide-water within a county, and not on the' sea,'conforms to'no code nor, precedent; neither marching boldly over all which’ is ■ navigable, nor- halting where the ocean meets the land ; neither shunning to make wide inroads into the territories of juries, nor pushing as far as all which is nautical and commercial goes. The only plausible apology for itj which I can find, is in a total misconception, before adverted to, of the ancient and true rule, which was tide-water, but at the same tíme tide-wáter without the body of the county, on the high seas: But instead of the flux and 'refiux of the tide on the high seas, and without the body of the county\qr State, and to support which line stood the great, pillars, of a jury trial and the. common law, have been attempted to be substituted, and that without authority of any statute or clause in the constitution, as to torts, the impulses from the tides at any and every distance from the ocean, sometimes encroaching. from one to two hundred miles into the interior of counties /and States, and prostrating those great pillars most valuable to the people of the States. And what, let me repeat the inquiry, is gained by such a hazardous construction ?. Not an adherence to old and established rules, not a respect for State rights ; not strengthening the Union or its clear powers where assailed, but weakening by extending them to doubtful, irritating, and unnecessary topics ; not an extension of a good system, allowing the admiralty to be one for all nautical matters, to all navigable waters and commercial questions, but falling short, in some of our vafct 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 remedy 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
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, appears very ill-considered, when, if the civil law in this instance does not differ essentially from the common law, the rules of evidence by it do, depriving us, as triers, of the sight of the witnesses, and their apparent capacity and character, and depriving the defendant of the invaluable trial by jury, and stripping him of the right of being tried, and the State courts of the right of trying controversies between their citizens, in the neighbourhood where they occur." ‘‘ All controversies directly between citizen and citizen will still remain with the local courts,” said Mr. Madison in the Virginia convention. 3 Elliot’s Deb. 489.
Now, after all this caution exercised in England not to extend nor change admiralty jurisdiction there without the aid of express statute and a reservation of common law remedies, —after a refusal to do it here recently as to the Lakes and their tributaries, except in the same way, and preserving the trial by jury, — after all the sensitivéness of opr fathers in not doing it as to seizures for breach of revenue and navigation laws, except by express statute, — after their remonstrances and cautions in various ways against abridging the trial by jury, — after the jealousy entertained when the constitution was adopted, that this court might absorb too much power from the. State tribunals, and the respect and forbearance which are always justly due to the reserved rights of the States, — it certainly seems much wiser in doubtful cases to let Congress extend our power, than to do it ourselves, by construction or analogy.
So far from disturbing decisions and rules, of property clearly settled," I am for one strongly disposed to uphold them, stare decisis, and hence I am inclined in this case to stand by the ancient landmarks, and not set every thing 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 Gouia, the place of this collision, in ordinary times.
There is no pretence that the water there is salt, or comes back
Again, the descent in the river from the place of this collision to the ocean is quite a foot and a half, all the usual rise of the tide on the coast; and hence, at a low stage of water in the river, much more at a high one, thirty feet above the lowest, no tides are likely to be felt, nor would they probably be during the whole season of a full river, from November to June.
In the next place, several witnesses testify as to their observations in respect to the tides, and confirm what might be expected from these collateral facts. The most scientific among them took frequent observations for twq years, at or nigh Jefferson College, thirty-seven miles nearer the sea than the place of this collision, to ascertain this very fact, and testifies that no regular daily influence is felt there from the tides. Oscillations may occur, but not regularly, nor as tides. They happen in that way even' near the foot of the Falls of Niagara, but ■ of course are produced by causes entirely discon
Sometimes cóntinued winds in one direction make a great difference in the rise of the water at different places ; and sometimes, the emptying in near of large tributary streams, changeable in their size, at different seasons. Both of these are testified to occur in .the Mississippi in its lower parts. At. high water, which prevails.over half the yeár, from rains and the dissolving of snow, it also, deserves notice, that the fall of the river, towards the ocean is near one and .two-thirds of an inch per mile ; and the difference between high and low water mark near Bayou Goula is also, as before noticed, from thirty to thirty-three'feet.
From' all this it is easy to see, that, during more than half the year, it is hardly possible that a regular tide from the ocean should be felt there, though it is admitted that, in conflict with this, some witnesses testify to what they consider such tides there, and indeed as high up as Bayou Sarah. But their evidence is insufficient'to overcome, in my-mind, the force of the other facts and testimony on this subject.
In connection with this point, it.see'ms to be conceded, also, that, in order to give admiralty jurisdiction,.'the vessels must be engaged in maritime business, as well as the collision have occurred where the tide' ebbs and flows. There might be some question, whether the'main business of either of . these boats was what is called mail-time, or touching the sea, — mare, — so as to bring them and their business within the scope of admiralty power. If, to do that, they must be employed on the high seas, which is the English rule, neither was so engaged in any part of its voyage or business. Or' if,'for thát purpose, it is enough, as may be contended in this country, that they be engaged exclusively on tide-waters, neither, was probably so employed in this instance. And it is only by holding that it is' enough for one end of the voyage to be in tide-water, however fresh the .water or.slight the tide, that their employment can be considered maritime.
In The Thomas Jefferson,
In the case of The Planter,
It is doubtful if a vessel, not engaged in trade from State to State, or from a State abroad, but entirely within a State, comes under laws of the general government as to admiralty matters or navigation. It is internal commerce, and out of the reach of federal..jurisdiction. Such are véssels on Lake Winnipiseogee, entirely within the State of- New Hampshire. In the Luda and De Soto they were engaged in internal commerce, and not from State to State, or’ from a State to a foreign country. 1 Tucker’s Bl. Com. 250, note.
In most cases on the Mississippi, the boats are engaged in the coasting trade from one State to another, and hence are different, and assume more of a public character. So on the Lakes the vessels often go to foreign ports, as well as to other States, and those on the seaboard engaged in the fisheries usually touch abroad, and are required to have public papers. But of what- use are custom-house papers or admiralty laws to vessels in the interior, nevfer going from State to State, nor from a State to ¿ foreign country, as was the situation and employment at the time of these two boats •?
These are strong corroborations that this is a matter of local cognizánce, — of mere State trade, — of parties living in the same county, and doing business within the State alone, — and should no more be tried without a jury, and decided by the laws of Oleron and Wisbuy,. or the Consulat del Mare, or the Black Book of Admiralty, than a collision between two wagoners in the same county.
• The second objection, then, as a whole, is in my view sustained ; and, being one of mere fact rather than law, it is to be regretted that the court could not haye agreed to dismiss the libel on that ground, without settling the other points, and without prejudice to the. rights of either party in a trial at common law.. The plaintiff would then be enabled to have all the facts on the merits examined and adjudicated by a jury from the valley of the Mississippi ; much more skilful than this court, from their residence and experience, in judging upon accidents and negligences in navigation on that great thoroughfare.
The only good reason that the admiralty judge was ever intrusted with the decision of facts, rather than a jury, was, that originally he was- but a deputy of the admiral, and often a nautical man, — acquainted with nautical, matters, and acting only on them ; and now in
Perhaps it was a consid~rati~n like this that l'~d to the doctrine, bcth abroad and here, in favor of the common law courts haying concurrent jurisdiction in these cases of collision, even when they happen on the high seas. 1 Chit. on Pl. 152, 191 ;
• Indeed, the laws of Louisiana are quoted as pertaining to and regulating the conduct of boats when passing on the Mississippi within that State. 1 Bullard & Curry's Pig. § 794. `But so far from their being a guide to tis in admiralty,, if having jurisdiction in that way over these boats at this place, the - rights of parties> as before seen in suáh questions, are to be settled by the laws existing in some undescribed part of the world, but not England ii> A. D. 1776 or A. D. 1789, or Louisiana ~n A. P. 1.845. If England, this case would not be tried at all in admiralty, as we have seen; and if Louisiana, then the case would not be settled by admiralty law, but' by the laws of Louisiana, and in the State tribunals.
Again, whoever affirms jurisdiction to be in the courts of the United States must make it out, and remo~ve all reasonable doub,ts, or the court should not exercise it. Bobyshall v. Oppenheimer,
But the secQnd objection to our jurisdietion being also considered by the court untenable, this case is to be examined on the
From the very nature of navigation, — as vessels cannot be always turned' quiyk, and as a constant lookout is hardly practicable both night and day, — collisions on rivers with frequent bends in them, like the Mississippi, and during darkness, are occasionally almost inevitable, and often are attended by no blame. The danger and injury to both vessels is so great in almost every case, one or both not unseldom going down, with all on board, that the strongest motives exist with all to use cafe and skill to avoid collisions. The want of them, therefore, is never to be presumed, but is required to be clearly proved. To presume otherwise would be to presume men will endanger their own lives and property, as well as those of others, without any motive of gain or ill-will.
Hence our inquiries must start with the probability, that, in such collisions, accident and misconception as to courses and distances caused the injury, rather than neglect or want of skill. Indeed, in these cases it is laid down as a rule by Sir Christopher Robinson, in The Ligo, 2 Hag. 356, that “ the law requires that there shall be preponderating evidence to fix the loss on the party charged, before the court can adjudge him to make compensation.” 2Dod. 83. I am unable to discern any such clear preponderance in this case in favor of the Luda. It is true that some allowance must be made as to the testimony of the officers and men in each boat. In both they would naturally be attached to her character or interests, and desirous in some degree of vindicating themselves .or friends. And it happens that, from such or some other cause, those on each side ■usually testify more favorably as to the care and skill with which the boat was conducted in which they were employed at the time. Hence resort must be had to some leading and admitted facts as a guide, when they can be .distinctly ascertained, to see whether the. collision was from any culpable misconduct by either. For like reasons, we should go to witnesses on shore and passengers, where they had means of knowledge, rather than to the officers and crews implicated on either side. Taking these for our guidance chiefly, and so far as it is possible here to decide with much accuracy; most’ of the case looks to me, on the facts, quite as much like one of accident, or one arising from error of judgment and mutual misapprehension, as from any culpable neglect on the part of the officers of the De Soto alone.
It is to be remembered, that this collision occurred in the night; that neither of the regular captains were on the deck of either boat, though both pilots were at their stations ; that being near a landing, the De Soto supposed the Luda was going to stop there, and hence pursued a different course from what she would if not so supposing ; and that the Luda supposed the De Soto would not stop there, and hence did not pursue the course she would if believing she was
But I do not propose to go more fully into this, as it is not the point on which I think the case should be disposed of. I merely refer to enough 'to show it is a question of difficulty and doubt .whether the injury did not result from casualty, or'nqutu'al misapprehension and blame, rather than neglect, except in particulars common to both, or at least in some, attached to the plaintiffs, if not so great, as those in respect to which the original defendants erred. Any fault whatever in the plaintiffs has, it. is said in one case, been held to.defeat his action. Vanderplank v. Miller, Moody & Malk. 139. But in any event, it must influence the damages essentially. For though, wheA one vessel alone conducts wrongfully, she alone must pay all damages to the extent of her value (5 Rob. Ad. 345), and this agrees with the laws of Wisbuy if the damage be “ done on purpose”' (2 Peters’s Ad. 84, 85, App.), and with the laws of. Oleron (2 ibid. 28) ; yet if both vessels were culpable, the damage is to be divided either equally between them (3 Hag. Ad. 328, note ; 4 Adolph. & Ell. 431 ; 9 Car. & P. 613 ; Reeves v. The Constitution, Gilpin, 579), or they are to be apportioned in some Other more appropriate ratio, looking critically to all the facts. The Woodrop-Sims, 2 Dod. Ad. 85 ; 3 Scott, N. R. 336 ; 3 Man. & G. 59 ; Curtis’s Admiralty, 145, note.. So in England, though no damages are given, when there is no blame on the part of the defendant. The Dundee, 1 Hag. Ad. 120 ; Smith et al. v. Condry,
Hence, whether we conform to the admiralty law of England on this point, though refusing to do it on other points, or take the rulé on the Continent.for a guide, the amount of damages allowed in this case is erroneous, if there was any neglect on. the part of the original plaintiffs, or if the collision between the boats was accidental.
Judge DANIEL requested his dissent to the judgment of the court to be entered on the record, and for reasons concurring generally with those offered by Judge' Woodbury.
Notes
Arid the vice-admiral is .hence quaintly called “ the justice of the peace for the sea,” by Sir Leoline Jenkins; but vicho ever supposed him the justice of the peaee two hundred miles inward from the sea ?
Woodcock on the British Colonies is equally explicit, that the vice-admiralty courts in the colonies were called so because in fact subordinate to the admiralty at home, and with like jurisdiction, except where altered by positive statute. Thus, speaking of “ the jurisdiction of the admiralty over subjects of maritime contract,” he says, — “ With respect to this authority it may oe only necessary to observe, that in such matters the admiralty court in the colonies holds plea agreeably to the course of the same court in England.” (p. 272).
They are so numerous as to remind one of the zeal and perseverance in favor ' of the gre^t charter, which was such as to require it to be read twice a y ,ar, in each cathedral, and to have it ratified anew over thirty times, when put in p ril by encroaching monarchs. 1 Stat. at Large (English), 274, ch. 3$ also,p. 1,'note.
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, Bl 2, ch. 9, § 10. Or “ the same rights and privileges as those who staid at home.” Or, as in the charter of. Elizabeth" to Raleigh, “ énioy all the privileges of free denizens or persons' native of England.” . Part I. "of Tucker’s Bl., vol. 1, p. 383, App.
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-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,” ,&c. ( 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.
Indeed, in England it has been controverted whether the power in admiralty to punish torts anywhere ever existed, even before Richard II. (3 Mason’s C. C.. 244), exqept through a jury, used to settle the facts a».J assess the damages. See 4 Rob. Ad. 60, note to Rucker’s case. The Black Book of the 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 Ihisc'ass of torts,,as hereafter shown, the masters of Trinity House act virtually as a jury.