and regular manner two hundred and three miles distant, and weakened by all the numerous bends in that mighty river. From New Orleans to St. Louis, the bends are such, that a boat must cross the stream 390 times. Stoddard's Hist. of Louisiana, 374.

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

in tide water, however fresh the water or slight the tide, that their employment can be considered maritime.

In The Thomas Jefferson, 10 Wheat. 428, the court say, the end or beginning of the employment may be out of tide water, if "the service was to be substantially performed on the sea or tide water." So in The Phœbus, 11 Peters, 183. But in the case of The Thomas Jefferson, as well as The Phœbus, the service, being in fact chiefly out of tide waters, was not considered as maritime.

In the case of The Planter, 7 Peters, 324, the whole service performed was in tide waters, and was a contract, and hence deemed maritime. Here the boats were employed in the trade between New Orleans at one point, and Bayou Sarah at the other, a distance of one hundred and sixty-five miles. If the tide ebbs

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 dis498*] connected * from the tides of the ocean. So they happen, from other causes, on most of our interior lakes.

Sometimes continued 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 year, 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.

still

seven miles above New Orleans, which we have seen is doubtful, it is only a small fraction *above half the distance, but not enough [*499 above half to characterize the main employment of the vessel to be in tide waters, or to say that her service was substantially on the sea, or even tide water. 'The De Soto made trips higher up than Bayou Sarah, to Bayou Tunica, twenty seven miles farther from New Orleans, The testimony is, also, that both these boats were, in their construction, river, and not sea, boats; and the De Soto was built for the Red River trade, where no tides are pretended to exist, and neither was ever probably on the ocean, or within a hundred miles of it.

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 vessels 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 vesesls 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, never going from State to State, nor from a State to a foreign country, as was the situation and employment at the time of these two boats?

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 that 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

These are strong corroborations that this is a matter of local cognizance-of mere State trade

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 have 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 skillful 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 Eng500*] land *he calls to his aid on facts the experienced nautical officers or masters of the Trinity House-"a company," says Coke, "of the chiefest and most expert masters and governors of ships." 4 Inst. 149. He takes their opinion and advice on the facts as to collisions of vessels before he himself decides. 2 Bro. Civ. and Ad. Law, 112; 6 D. & E. 766; The Celt, 3 Hagg. Ad. 327. The case is often fully argued before them first. 1 Wm. Rob. 133135, 273, 314; Hall's Ad. Pr. 139; 5 Rob. Ad. 347. But everything here is so different, and so much against the skill of judges of this court in settling such facts, that in cases of doubt we are very likely, as has now happened, to disagree, and it is far better they should be examined by a jury in the vicinage of the collision.

Perhaps it was a consideration like this that led to the doctrine, both abroad and here, in favor of the common law courts having concurrent jurisdiction in these cases of collision, even when they happen on the high seas. 1 Chitt. on Pl. 152, 191; 15 Mass. 755; 3 East, 598; Percival v. Hickey, 18 Johns. 257; 14 Johns. 273; Curtis's Merch. Seamen, 367; 9 Johns. 138; Smith v. Condry, 1 Howard, 36; Gilp. 483; 4 Mason, C. C., says it is claimed; 2 Gall. 343, on precedent.

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 Dig. sec. 794. But so far from their being a guide to us in admiralty, if having jurisdiction in that way over these boats at this place, the rights of parties, as before seen in such questions, are to be settled by the laws existing in some undescribed part of the world, but not England in A. D. 1776 or A. D. 1789, or Louisiana in A. D. 1845. 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 remove all reasonable doubts, or the court should not exercise it. Bobyshall v. Oppenheimer, 4 Wash. C. C. 483; 7 Peters, 325; Peters' C. C. 36. Because these courts are courts of limited jurisdiction, and acting under express grants, and can presume nothing beyond the grant, and because, in respect to admiralty power, if anything is presumed when not clear, it is presuming against the trial by

jury, and the State tribunals, and their reserved rights. Where a jurisdiction is of a limited nature, "they [claiming it] must show that the party was brought within it." 1 East, 650. And where a case is in part dependent on common law, and in part on admiralty, it must be tried in the courts of the former. Bee's Ad. 470.

But the second objection to our jurisdiction being also considered by the court untenable, this case is to be examined on the *merits; [*501 and as to these it seems to me not free from difficulty, though in my view indicating some fault in both the boats.

From the very nature of navigation-as vessels cannot be always turned quick, 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 sc 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 care 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 illwill.

Hence our inquiries must start with the probability, that, in such collisions, accident and misconception, as to courses and distances cause 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 Hagg. 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." 2 Dod. 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 осcurred in the night; that neither of the regular captains were on the deck of either boat, though both pilots were at their stations; that

A

being near a landing, the De Soto supposed the Luda was going to stop there, and hence pur sued 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 believ502*] ing she was *about to stop. That both boats in the darkness seemed, till very near, to believe each other farther off than they in truth were, and hence did not use so early the precautions they otherwise might have done. It is to be remembered, also, that not one of the usual sources of blame in the adjudged cases existed here clearly on the part of the De Soto. Some witnesses swear to the De Soto's having her light hung out, and several, including a passenger, that if the Luda had not changed her course unexpectedly, and when near, she would not have been struck by the De Soto; and that the De Soto, if changing hers, and going lower down than her port, did so only to round to and lay with her head up in the customary manner. Nor was there any racing between rivals, to the peril of the vessels and life, which led to the misfortune, and usually deserves condign punishment. Nor was any high speed attempting for any purpose; and the movement of the De Soto, though with

have done, under the law of Louisiana, if that was in force, *and she wished to throw [*503 all the risk on "the ascending boat;" for throwing that risk so is the only gain by conforming to the statute. 1 La. Dig. 528, art. 3533, by Grimes.

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 mutual 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. 169. But in any event, it must influence the damages essentially. For though, when 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 Peter's Ad, 84, 85, App.), and with the laws of Oleron (2 Ibid. 28); yet if both vessels were culpable, the

ally. The Chester, 3 Hagg. Ad. 319. Nor is there any law of admiralty requiring a descending boat on a river to lie still till an ascending one approaches and passes, though an attempt was made to show such an usage on the Mississippi, which was met by counter evidence. Again, the Luda was not at anchor, so as to throw the duty on the De Soto to avoid her, as is often the case on the sea coast. The Girolamo, 3 Hagg. Ad. 169; the Eolides, Ibid. 369. Nor was the Luda loaded and the other not, but in ballast and with a wind, and hence bound not to injure her. The Baron Holberg, 3 Hagg. Ad. 244; The Girolamo, Ibid. 173. Nor was one moved by steam and the other not, and hence the former, being more manageable, obliged to shun the latter. The Shannon, 2 Hagg. Ad. 173; The Perth, 3 Hagg. Ad. 417. Nor is there a rule here, as in England, issued by the Trinity House in 1840, and to be obeyed or considered bad seamanship, that two steamboats approaching, and likely to hit, shall put their helms to port, though the principle is a sound one on which it rests. 1 Wm. Rob. 274, 275; 7 Jurist, 380, 999. Under considerations like these, if any blame rests on the De Soto, and there may be some, certainly quite as much seems to belong to the Luda. Neither put the helm to port. Both boats were in my view too inattentive. Both should have stopped their engines earlier, till the course and destination of each other were clearly ascertained; and both should have shaped their courses wider from each other, till certain they could pass without injury. 7 Jurist, 380; 8 Ibid. 320. The Luda certainly had more conspicuous lights, though the De Soto is sworn not to have been without them, and is admitted to have been seen by the Luda quite half a mile off, though in the night. On the contrary, the movements of the De Soto were slowest, which is a favorable fact in such collisions (7 Jurist, 381), though she did not lie by, as she should

un

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 Hagg. Ad. 120; Smith et al. v. Condry, 1 Howard, 36; 2 Browne's Civ. and Ad. Law, 204. Yet, by the laws of Wisbuy, 1 Peters's Ad. 89, App., "If two ships strike against one another, and one of them fortunately perishes by the blow, the merchandise that is lost out of both of them shall be valued and paid for pro rata by both owners, and the damage of the ships shall also be answered for by both according to their value." See Laws, 141. This is now the law in Holland, and is vindicated by Bynkershoek, so as to cover cases of doubt and equalize the loss. 2 Browne's Civ. and Ad. Law, 205, 206. So now on the Continent, where a collision happened between vessels in the River Elbe, and it was not the result of neglect, the loss was divided equally. Story's Conflict of Laws, 423; Peters et al. v. Warren Ins. Company, 14 Peters, 99; 4 Adolph. & Ell. 420.

Hence, whether we conform to the admiralty law of England on this point, though refusing to do it on other points, or take the rule 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.

*Mr. Justice Grier concurred with [*504

by him so far as it related to the question of the jurisdiction of courts of admiralty, and also that the weight of evidence in this case was against the existence of a tide at the place of collision, but concurred with the majority of the court that the De Soto was in fault, and justly holden for the whole loss occasioned by the collision.

SAMUEL THURLOW, Plaintiff in Error,

V.

THE COMMONWEALTH OF MASSACHU

SETTS.

JOEL FLETCHER, Plaintiff in Error,

V.

THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.

ANDREW PEIRCE, Jr., and Thomas W. Peirce, Plaintiffs in Error,

V.

THE STATE OF NEW HAMPSHIRE.

License laws of Massachusetts, Rhode Island, and New Hampshire, declared not repugnant to U. S. Const. or laws.

Laws of Massachusetts, providing that no person shall presume to be a retailer or seller of wine, brandy, rum, or other spirituous liquors, in a less quantity than twenty-eight gallons, and that de livered and carried away all at one time, unless he is first licensed as a retailer of wine and spirits, and that nothing in the law should be so construed as to require the county commissioners to grant any licenses, when in their opinion the public good does not require them to be granted;

Of Rhode Island, forbidding the sale of rum, gin, brandy, etc., in a less quanitty than ten gallons, although in this case the brandy which was sold was duly imported from France into the United States, and purchased by the party indicted from the original importer:

Of New Hampshire, imposing similar restrictions to the foregoing upon licenses, although in this case the article sold was a barrel of American gin,

purchased in Boston and carried coastwise the landing at Piscataqua Bridge and there sold in

the same barrel;

All adjudged to be not inconsistent with any of

the provisions of the Constitution of the United

States or acts of Congress under it.

THESE cases were all brought up from the respective State courts by writs of error issued under the twenty-fifth section of the Judiciary Act, and were commonly known by the name of the License Cases.

Involving the same question, they were ar gued together, but by different counsel. When the decision of the court was pronounced, it was not accompanied by any opinion of the court, as such. But six of the justices gave separate opinions, each for himself. Four of

NOTE. As to power of Congress to regulate commerce and State license laws. see notes to 6 L. ed. US. 23 6 Led: 8678: 29 L. ed. U

S. 158; 32 L. ed. U. S. 229; 37 L. ed. U. S. 216; and os L. ed. U. S. 1041.

ion, whilst the remaining two expressed opinions in the cases separately. Hence it becomes necessary for the reporter to make a statement in each case, and to postpone the opinions until the completion of all the statements. The arguments of counsel in each case will of course follow immediately after the statement in that case. They are placed in the order in which they are put by the Chief Justice in his opinion, but where the justices have given separate opinions in each case, the order is observed which they themselves have chosen.

*Mr. Chief Justice Taney, One opin- [*505 ion, (p. 573.)

Mr. Justice McLean,

three cases. three opinions. No. 1. Thurlow v. Massachusetts. (p. 586.) No. 2. Peirce v. New Hampshire. (p. 593.) No. 3. Fletcher v. Rhode Island. (p. 596.)

Mr. Justice Catron,

two opinions. No. 1. Peirce v. New Hampshire. (p. 597.) No. 2. Thurlow v. Massachusetts. (p. 609.) Mr. Justice Daniel,

Mr. Justice Woodbury,

Mr. Justice Grier,

one opinion, three cases.

one opinion,

(p. 611.)

three cases. (p. 618.) one opinion,

three cases. (p. 631.)

To begin with the case of Thurlow v. The Commonwealth of Massachu

setts.

This case was brought up from the Supreme Judicial Court of Masaschusetts. The plaintiff in error was indicted and convicted, under the Revised Statutes of the State, for selling liquor without a license. The indictment contained several specifications, but they were all similar to the first, which was as follows:

"The jurors for the Commonwealth of Massachusetts, upon their oath present, that Samuel Thurlow, of Georgetown, in said county, trader, on the first day of May, in the year of our Lord one thousand eight hundred and forty-two, at said Georgetown, he not being then and there first licensed as a retailer of wine and spirits, as provided in the forty-seventh chapter of the Revised Statutes of said Commonwealth, and without any license therefor duly had according to law, did presume to be, and was, a retailer of wine, brandy, rum, and spirituous liquors, to one Samuel Goodale, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, and did then and there sell to said Goodale two quarts of spirituous liquors, and no more, against the peace of said Commonwealth and the form of the statute in such case made and provided."

It becomes necessary to insert the forty-seventh chapter of the Revised Statutes, and also an Act passed in 1837. They are as follows:

Revised Statutes of Massachusetts, Chap. 47.The Regulation of Licensed Houses.

"Section 1. No person shall presume to be an innholder, common victualler, or seller of wine, brandy, rum, or any other spirituous liquor, to be used in or about his house, or other buildings, unless he is first licensed as an innholder or common victualler, according to the provisions of this chapter, on pain of forfeiting one hundred dollars.

"Sec. 2. If any person shall sell any wine 506*] or spirituous liquor, *or any mixed liquor, part of which is spirituous, to be used in or about his house or other buildings, without being duly licensed as an innholder or common victualler, he shall forfeit for each of fense twenty dollars.

"Sec. 3. No person shall presume to be a retailer or seller of wine, brandy, rum, or other spirituous liquors, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless he is [at] first licensed as a retailer of wine and spirits, as is provided in this chapter, on pain of forfeiting | twenty dollars for each offense.

"Sec. 4. If any person, licensed to be a retailer as aforesaid, shall sell any of the above liquors, either mixed or unmixed to be used in or about his house or shop, he shall forfeit for each offense twenty dollars.

"Sec. 5. Every innholder shall at all times be furnished with suitable provisions and lodging for strangers and travelers, and with stable room, hay, ana provender for their horses and cattle; and if he shall not be at all times so provided, the county commissioners may revoke his license.

"Sec. 6. Every common victualler shall have all the rights and privileges, and be subject to all the duties and obligations, of innholders, excepting that he shall not be required to furnish lodgings for travelers, nor stable room, hay, and provender for horses and cattle.

"Sec. 7. Every innholder and common victualler shall at all times have a board or sign affixed to his house, shop, cellar, or store, or in some conspicuous place near the same, with his name at large thereon, and the employment for which he is licensed, on pain of forfeiting twenty dollars.

"Sec. 8. If any innholder shall, when requested, refuse to receive and make suitable provisions for strangers and travelers, and their horses and cattle, he shall, upon conviction thereof before the Court of Common Pleas, be punished by a fine not exceeding fifty dollars, and shall also, by order of the said court, be deprived of his license; and the court shall order the sheriff or his deputy forthwith to cause his sign to be taken down.

"Sec. 9. No innholder or common victualler, shall have or keep in or about his house, or

"Sec. 12. If any innholder or common victualler shall trust or give credit to any person for liquor, he shall lose and forfeit all the sums so trusted or credited, and all actions brought for such debt shall be utterly barred; and the defendant in such action may plead the matter specially, or may give it in evidence under the general issue.

a

"Sec. 13. If any common victualler shall keep open his house, cellar, shop, store, or place of business on any part of the Lord's day or evening, or at later hour than ten o'clock in the evening of any other day of the week, and entertain any person therein by selling him any spirituous or strong liquor, he shall forfeit for each offense ten dollars.

"Sec. 14. When any person shall, by excessive drinking of spirituous liquors, so misspend, waste, or lessen his estate as thereby either to expose himself or his family to want or indigent circumstances, or the town to which he belongs to expense for the maintenance of him or his family, or shall so habitually indulge himself in the use of spirituous liquors as thereby greatly to injure his health or endanger the loss thereof, the selectmen of the town in which such spendthrift lives shall, in writing under their hands, forbid all licensed innholders, common victuallers, and retailers of the same town, to sell to him any spirituous or strong liquors aforesaid for the space of one year; and they may in like manner forbid the selling of any such liquors to the said spendthrift by the said licensed persons of any other town to which the spendthrift may resort for the same; and the city clerk of the city of Boston shall, under the direction of the mayor and aldermen thereof, issue a like prohibition as to any such spendthrift in the said city.

"Sec. 15. The said mayor and aldermen, and said selectmen, shall, in the same manner, from year to year, renew such prohibition as to all such persons as have not, in their opinion, reformed within the year; and if any innholder, common victualler, or retailer shall, during any such prohibition, sell to any such prohibited person any such spirituous liquor, he shall forfeit for each offense twenty dollars.

"Sec. 16. When the said mayor and aldermen, or selectmen, in execution of the foregoing ing provisions, provisions, shall have prohibited the sale of spirituous liquors to any such spendthrift, if any person shall, with a knowledge of said prohibition, give, sell, purchase, or procure for

ful game or sport within his said premises, on pain of forfeiting ten dollars for every such offense.

"Sec. 10. Every person convicted of using or exercising any of the games aforesaid, in or about any such house or building of an innholder or common victualler, shall forfeit ten dollars.

"Sec. 11. No innholder or common victualler 507*] shall suffer any *person to drink to drunkenness or excess in his premises, nor suf fer any minor or servant, travelers excepted, to have any strong drink there, on pain of forfeiting five dollars for each offense.

spective counties, as many persons to *be [*508 innholders or retailers therein as they shall think the public may require; and the mayor and aldermen of the city of Boston may, in like manner, license innholders and retailers in the said city; and the Court of Common Pleas in the County of Suffolk may, in like manner, license innholders and retailers in the town of Chelsea; and every license, either to an innholder or retailer, shall contain a specification of the street, lane, alley or other place, and the number of the building, or some other particular descripti escription thereof, where such licensed person shall exercise his employment; and the