Sidebilder
PDF
ePub

must be, therefore, causes arising wholly upon the sea, and not within the precincts of any county." 3 Bl. Com. 106.

its permanent jurisdiction. 10 Wheat. 315; 5 Ibid. 120, App.; 4 Dall. 2; Doug. 613, note; 1 Kent's Com. 357. Where any of the references in the books here are to printed cases of tort, they uniformly appear to have been com- | against these supposed changes as to torts, it is

mitted on the high seas, or without the body of a county and State. Burke v. Trevitt, 1 Mason, 96, 99, 360; Manro v. The Almeida, 10 Wheat. 474, 486, 487; The Josefa Segunda, Ibid. 315; Thomas v. Lane, 2 Sumner, 1; The Apollon, 9 Wheat. 368; Plummer v. Webb, 4 Mason's C. C. 380, and Ware, 75; Steele v. Thatcher, Ware, 96. If the act happened in foreign countries, in tide waters, there may well be jurisdiction, as being not within the body ly of any 487*] county here. *Thomas v. Lane, 2 Sumner, 9. Such was the case of The Apollon (9 Wheat. 368), not being a case within tide waters and a county in this country.

There is an expression in 12 Peters, 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 land or above tide water, could they be tried there as as admiralty admiralty of fenses, but only as offenses defined and punishe ished by acts of Congress under the power to regulate commerce. United States v. Coombs, 12 Peters, 76. This may be very true, and yet in torts, as well as crimes, they may not be punishable without a statute, and as mere admiralty cases, unless committed on the ocean. During this session I have for the first time seen a case decided in one of our circuits, which holds that the tide waters of the Savannah River are within the jurisdiction of the admiralty, as to collisions between boats. Bullock v. The Steamboat Lamar, 1 Western L. J. 444. But as the learned judge seems to have taken it for granted that the question of jurisdiction had been settled by previous decisions, he does not go into an examination of its principles, and cites only one authority (7 Peters, 324), which will be found to be a case of contract and not tort. So that, with this single exception, so far as it be one, not a single reported case is found, and only one manuscript case referred to (Dunl. Adm. 51), where a tort was committed within one of our counties, though on tide water, which was adjudged to be within admiralty jurisdiction, since the country was first settled, or of a like character in England, unless by recent statutes, for the last four centuries.

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

Moreover, as to American authorities directly

hardly possible to find anything stronger than the absence we have just referred to, almost entire, of any attempt in actions to sustain the jurisdiction in admiralty *over torts, [*488 unless happening on the high seas, and the uniform settled decisions in England, that it exists only there. But, beside this, there is the absence likewise of any colonial statutes or colonial decisions to bring in question at all the adjudged cases at home, which governed this question here no less than there. There is next the remark by Chancellor Kent, that if tides ebb and flow in a county, a recovery cannot be had for a tort there, on the principles of the common law courts. 1 Kent's Com. 365, note; 3 Hagg. Ad. 369.

on the admiralty.

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

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

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

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

son deemed the admiralty jurisdiction to relate | happened on "the high seas," knowing full well

that they are the great theatre and territory for the exercise of admiralty law and admiralty power; and being obliged to make such an allegation in England in order to gain jurisdiction. Ross v. Walker, 2 Wils. 265.

489*] *Indeed, the departure from the settled line of jurisdiction as to torts here, so far as

Half the personal quarrels between seamen it may have gone in theory or speculation, in the coasting trade and our vast shore fisherseems likely to have begun in mistake rather ❘ies, and timber men on rafts, and gundalo men, than in any old commission or adjudication, and men in flat boats, workmen in the sea coast founded on any statute or any well settled marshes, and half the injuries to their property, principle. It is likely to have commenced are where the tide ebbs and flows in our rivers,

either by omitting to discriminate between torts and contracts, or between torts depending on general principles and seizures for violating laws of revenue and trade, which depended on the words of a special statute, and the construction given to those words; or from a supposed but unfounded analogy to the rules as to prizes, with which our fathers were very familiar in the Revolution, and taking cognizance of them in admiralty here, as in England, if captured anywhere, not only on tide water or "below high water-mark," but even on land. 4 Dall. 2; 2 Bro. Civ. and Adm. Law, 112; 5

creeks and ports, though not on the high seas. But they never were thought to be cases of admiralty jurisdiction when damages are claimed - much less when prosecuted for crimes; never in creeks, though the tide ebbs and flows there through half of our seaboard towns-never in 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 in controversies as to contracts, that the statutes of Richard II. were not in force in the colonies. See 2 Gall. 398, 473;

Wheat. App. 120. Or it may have occurred, 1 Peters's Ad. 233; Ware, 91; Hall's Ad. Pract.

and that probably was oftenest the case, from 17, Pref. I cheerfully concede it may well various general expressions in the English be doubted whether any portion of the com

books and cases as to the admiralty jurisdiction being co-extensive with tide waters, when that expression means, in all the adjudged cases in England as to torts and crimes and must, on principle, as before shown, mean, in order to secure the trial by jury and the common law-the tide waters on the sea coast, the flux and reflux of the tide, out of the body of a county.

There is a similar expression in Judge Story's Commentaries on the Constitution, Vol. III. sec. 1667, as to crimes, in speaking of the existence of admiralty jurisdiction over them in creeks "and bays within the ebb and flow of tide;" but he takes care to add, very properly, "at least in such as 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 waters, 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

mon law or English statutes, passed before the settlement of this country, became in force here, unless suited to our condition, or faverable 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 in the colonies, no less 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 entitled." 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 now, in respect to all matters, with all the vigor that characterized them at home at the time of our

courts over admiralty matters was doubtless | Revolution. Baldw. C. C. 551; Ramsey v. One of the soundest jurists has said longed States courts try such cases, rather than

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 sig nificant of the correctness of this limitation to matters on the ocean, than the remarks of Chief Justice Jay, in Chisholm v. Georgia, 2 Dall. 475, that the judicial power of the Union was extended to "cases of admiralty and maritime jurisdiction, because, as the seas are the joint property of nations, whose rights and privileges thereto are regulated by the laws of nations and treaties, such cases necessarily belong to national jurisdiction."

Our forms of proceeding, also, in admiralty, 490*] and which are founded on substance, count usually on the transaction as having

Alleyne, 12 Wheat. 638. So decided virtually in Montgomery v. Henry, 1 Dall. 53; Talbott v. The Three Briggs, 1 Dall. 106.

The principles, dear to freemen of the Saxon race-preferring 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 *this subject, both before [*491 and during the Revolution, cited in other portions of this opinion.

1. They are so numerous as to remind one of the zeal and perseverance in favor of the great charter, which was such as to require it to be read twice a year in each cathedral, and to have it ratified anew over thirty times. when put in peril by encroaching monarchs. 1 Stat. at Large (English), 274, ch. 3; also, p. 1, note.

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, or amended by the constitutional provisions or legislative declaration of the respective States, every beneficial statute and rule of the common law still remains in force." Tucker, in Part II. of Bl. Com. App. 99; 2 Chalm. Op. 75; Woodcock, 159.1

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

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, sec. 1639.

Nor let it be again offered in extenuation, that, the power being concurrent in the 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 492*] the *common law, much against his choice. Nor let it be said further, as an apology, that the trial by admiralty is better and more satisfactory, when our ancestors, both English and American, have resisted it, and excluded it in all common law cases, for reasons most vital to public liberty and the authority of the local tribunals. Such an enlargement of a power so disliked by our fathers is also unnec

those of the States, they can be enabled to do it by express provisions, under the power to regulate foreign commerce and collect revenue, as is now done on the Lakes. 12 Peters, 75; 5 Statutes at Large, 726; Act of February 26th, 1845; and reserving, as in that case, the right of trial by jury.2

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

re

Among my remarks have been several, showing that there was nothing in our condition as colonists, or since, and nothing in the nature of the subject and the great principles involved, which should render the same line of jurisdiction not proper in America which existed in England, but in truth some additional reasons in favor of it here. I do not now, in conclusion, propose to dwell much on this peculiar condition of ours, though some members of this court have just urged it earnestly as a reason why the same line does not apply, as they have why the statutes of Richard II. did not apply. But the idea is as untenable in respect to the principle generally, looking to our condition, as we have alr already ady shown it to be in spect 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 framers of the Constitution, or of the Judiciary Act, have known it as quickly and 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, as *to torts and crimes, to need any writ- [*493 ten explanation or sanction, why cannot it be pointed out in colonial laws, or in judicial records, or at least in contemporaneous history of some kind? And if such a change was re-. quired and intended, as some insist, by resorting to other than English law for a guide as to what were admiralty cases within the meaning of the Constitution, because something less narrow, geographically or otherwise, as it has been argued, something on a grander scale, and in some degree commensurate in length and breadth with our mighty rivers and lakes, was needed--as if a system which had answered

essary; because, if desirable to have the Unit-for trade over all the oceans of the globe was

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

pass a special law to confer it on the lakes, it was not conferred there as exercised on "tide waters," which would have been sufficient, if so settled, but on "the high seas, or tide waters within the admiralty and maritime jurisdiction," etc. This statute is also scrupulous to save the trial by jury when desired, and thus avoids treating it as an admiralty power got in torts, unless on the high seas, by a construction contrary to the political opinions and prejudices of our ancestors, and to

2.-As some evidence that the makers of this last law did not suppose it settled that the district courts could, as admiralty courts, have any juris- | the whole spirit of our institutions. diction as to torts, because committed on tide

not large enough for us-then why not extend it at least over all our navigable waters, and not halt short at the doubtful, and fluctuating, and pent-up limits of tide water? And was a change so much required to go into the bodies of numerous counties and States, to the jeopardy of jury trials, by any increased dislike to them among our jealous fathers? Were they wishing, by mere construction, to let more and more go into the cognizance of the admiralty and be tried without a jury, and without the principles of the common law, when they had been so indignantly remonstrating against any and every the smallest encroachment by England on that sacred trial? And is this guarantee of a jury trial in such cases to be considered of subordinate moment in the views of those living at the era of the formation of the Constitution, and the passage of the Act of 1789, when their eagerness was such to guarantee it fully, that two of the only twelve amendments ever made to it relate to additional safeguards for this trial? And in the Judiciary Act of 1789, there are introduced, ex industria, three separate provisions to secure jury trials.

Indeed, so far from there being anything 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. Îredell says, also, in the North Carolina Convention, 4 Elliot's Deb. 155: "There are different practices in regard to this trial in different 494*] States. In some cases *they have no juries in admiralty and equity cases; in others, they have juries in them as well as in suits at

common law."

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, No. 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 common law, nor when the Constitution was adopted, either in England or here, we produce both the great evils deprecated-an abridgment of the jury trial from what pre vailed 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 caution 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? Did they mean to relinquish their time-honored and long cherished trial for torts on water within a county, and take for a model despotic France, for instance, which knew no trial by jury in any case, and where the boundaries between the admiralty and other courts were almost immaterial, being equally under the civil law, and equally without the safeguard of their peers? And would they be likely to mean this, or wish it, when every such extension of admiralty jurisdiction was at the expense of the State courts, and transferring the controversies of mere citizens of one State to distant jurisdictions, out of their counties and in certain events to the remote seat of the general government, and then to be tried there, not by the common law, with whose principles they were familiar, but by the civil, and when a full remedy existed at home and in their own courts? Much less could they be supposed willing to do this when the trial of facts in this court was not to be by their peers from the vicinage, or on oral testimony, so that the witnesses could be seen, scrutinized, and well compared, but by judges, who, however learned in the law, are less accustomed to settle facts, and possess less practical acquaintance with the subject *matter in controversy. [*495 And what are the urgent and all-controlling reasons which exist to justify the new line urged upon us, in such apparent violation of the Constitution, and with so inauspicious a departure from anything required by our condition, or from what seems to have been the principles and precedents at the Revolution?

It is not the line even of the civil law, any more than of the common law. If this innovation had extended admiralty jurisdiction over all navigable waters, it would have been, at least, less vague, and found some vindication in its analogy to the civil code. Digest, 43, tit. 12, 13; Code Napoleon, B. 2, ch. 2, tit. 556; Zouch'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 it, 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 time tide water without the body of the county, on the high

1. 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), except through a jury, used to settle the facts and assess the damages. See 4 Rob. Ad. 60, note to Rucker's case. The Black Book of Admiralty, art. 12, p. 169, is cited as speaking of the use of a jury twice in such cases. See, also, Roughten De Of Admiralis, 69 note. And at this day, in England, in this class of torts,

as hereafter shown, the masters of Trinity House

act virtually as a jury.

seas. But instead of the flux and reflux of the tide on the high seas, and without the body of the county or 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

diction 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 sensitiveness of our 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

rules, not a respect for State right; not certainly seems much wiser in doubtful cases strengthening the Union or its clear powers to let Congress extend our power, than to do it where assailed, but weakening by extending | ourselves, by construction or analogy.

them to doubtful, irritating, and unnecessary topics; not an extension of a good system, al lowing the admiralty to be one for all nautical matters, to all navigable waters and commercial questions, but falling short, in some of our vast rivers or inland seas, near one thousand miles from the head of navigation, and cutting off several cities with twenty, thirty, and even forty thousand population. The late Act of February 26th, 1845, 5 Statutes at Large, 726, was intended to remedy this, but does not include any cases above tide water on the Mississippi, or Cumberland, or Ohio, and many others, but only those on the lakes and their tributaries, and very properly even there reserves, with scrupulous care, not only the right to either party of a trial by jury, but any rem edy existing at common law or in the States.

4

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

tribunal.

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 neighborhood 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.

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 everything afloat-to stand, in fine, by decisions, repeated and undoubted, which govern this jurisdiction, till a different rule is prescribed by Congress. The first doubt as to the jurisdiction in admiralty over the present case is thus sustained, but, bei majority of the court, I proceed briefly to examine the next objection. It is one founded in fact. It denies that the tide did in truth ebb and flow at Bayou Goula, the place of this collision, in ordinary times.

being overruled by

a

Tide

There is no pretense that the water there is salt, or comes back *from the ocean [*497 or that the tide there sets upward in a current, or ever did, in any stage of the water in the Mississippi. Yet this is the ordinary idea of the ebb and flow of the tide. I concede, however, that it has been settled by adjudged cases, that the tide is considered in law to ebb and flow in any place where it affects the water daily and regularly, by making it higher or lower in consequence of its pulsations, though no current back be caused by it. Rex. v. Smith, 2 Doug. 441.; The Planter, 7 Peters, 343; Hooker v. Cummings, 20 Johns. 98; Angell on Waters, 637. Yet this of course must be a visible, distinct rise and fall, and one daily caused by the tides, by being regular, periodical, and corresponding with their movements. Amidst conflicting evidence on a point like this, it is much safer to rely on collateral facts, if there be any important ones admitted, and on expert or scientific men, who understand the subject, than on casual observers. The sea is conceded to be two hundred and three miles distant; and the current of the Mississippi so strong as to be seen and felt far out to sea, sometimes quite forty miles. The tides on that coast are but eighteen or twenty inches high. The velocity of the current of the river is ordinarily three to four miles an hour in high water, and the river is two hundred feet deep for one hundred miles above New Orleans. Stoddard's Hist. of Louisiana, 158. It therefore becomes manifest that on general principles such a current, with its vast volume of water, could not only never be turned back or overcome by the small tides of eighteen inches, as the fact of its influence forty miles at sea also

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

« ForrigeFortsett »