§ 530. Same Same-Same-Fox river in the state of Wisconsin. The Fox river, whose flow is wholly within the territorial limits of the state of Wisconsin, has its source near Portage city, Wisconsin, and flows in a northeasterly direction, through Lake Winnebago into Green Bay, and thence into Lake Michigan. By means of a canal of a mile and a half in length, it is connected at Portage city with the Wisconsin river, which empties into the Mississippi. There are several rapids and falls in the river, but the obstructions caused by them have been removed by artificial means, and for many years there has been uninterrupted navigation by steam vessels of considerable capacity from the Mississippi river, through the Wisconsin and Fox rivers, to Lake Michigan, and thence to the St. Lawrence, engaged in the transportation of passengers and merchandise. Without the improvements by locks, dams and canals, Fox river could not have been navigated by steam boats throughout its entire length. It, however, in connection with the Wisconsin river, formed one of the earliest and most important channels of communication between the Upper Mississippi and the Great Lakes. Before the improvment of the river, frequent portages were necessary in its navigation. It was held in a case decided by the supreme court in 1874, that Fox river is a navigable river, although made so by artificial means and improvements, and that a steamer navigating it is subject to the laws of the United States with regard to the enrollment and license of vessels, and is liable to be proceeded against in admiralty for non-compliance with such laws.51 § 531. Same-Canals.-A canal, though lying and situated wholly within the territorial limits of one state, which forms a part of a continuous highway for commerce between ports highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water." The language of this opinion has been recently quoted and re-affirmed by the supreme court. Perry v. Haines, 191 U. S. 17-55 (48:73). 51 The Montello, 20 Wall. 430 (22:391). in different states, and with foreign countries, by its connection with other waters, is a navigable water of the United States, and subject to the admiralty jurisdiction.52 § 532. Same-The admiralty jurisdiction not controlled by the power to regulate commerce.-The judicial power vested in the general government over causes of admiralty and maritime jurisdiction is not controlled by nor dependent upon the power vested in congress to regulate commerce among the several states and with foreign nations; the judicial power and the commercial power are independent substantive powers, conferred in the constitution by separate and distinct grants, and 52 Perry v. Haines, 191 U. S. 1755 (48:73); Ex parte Boyer, 109 U. S. 629 (27:1056); The Avon, Brown Adm. 170, Fed. Cas. No. 680. In Perry V. Haines, supra, Brown, Justice, delivering the opinion of the court, and holding that the Erie Canal, though wholly within the state of New York, is, by connecting Lake Erie with the Hudson river, a great highway of commerce between ports in different states and foreign countries, a navigable water of the United States, and subject to the admiralty jurisdiction, said: "The only distinction between canals and other navigable waters is that they are rendered navigable by artificial means, and sometimes, though by no means always, are wholly within the limits of a particular state. We fail to see, however, that this creates any distinction in principle. They are usually constructed to connect waters navigable by nature, and to avoid the portage of property from one navigable lake or river to another, or to improve or deepen a natural channel; and they are usually navigated by the same vessels which ply between the naturally navigable waters at either end of the canal. Examples of these are the St. Clair Ship Canal, connecting St. Clair river with the lake of the same name; the St. Mary's Canal, connecting the waters of Lake Superior with those of Lake Huron; the Illinois & Michigan canal, connecting the waters of Lake Michigan with the Missis sippi river; the Welland Canal, between Lake Ontario and Lake Erie; the Suez Canal, between the Mediterranean and the Red Sea; The Great North Holland Canal, connecting Amsterdam directly with the German ocean; and the Erie Canal, connecting Lake Erie and the Hudson River. Indeed, most of the harbors upon the lakes and the Atlantic coast are made accessible by canals wholly artifical, or by an artificial channel broadening and deepening their natural approaches. Can it be possible that a cause of action which would be maritime, if occurring upon those connected waters, would cease to be maritime if arising upon the connecting waters? Must a collision which would give rise to a suit in admiralty if occurring upon Lake Ontario, or Lake Erie, be prosecuted at common law, if happening upon the Welland Canal?" vested in separate and distinct co-ordinate branches of the government. The admiralty jurisdiction cannot be controlled by nor be made to depend upon regulations of commerce. It is wholly unaffected by the character of commerce engaged in by the vessels involved. The navigability of the waters being established, and it being shown that they are public navigable waters of the United States, then so far as concerns the admiralty jurisdiction over causes of action arising upon such waters out of marine torts or maritime contracts, it is wholly immaterial whether the vessels involved are engaged in purely local commerce, or in commerce among the states or with foreign nations. In the case of a marine tort arising out of a collision, it makes no difference as to the jurisdiction that, at the time of the collision one of the vessels was on a voyage from one place to another in the same state; 54 and in a suit upon a marine contract for the transportation of merchandise the jurisdiction of the court is wholly unaffected by the fact that, under the contract the place and port of shipment and the place and port of destination are in one and the same state.55 53 § 533. Same-What are navigable waters is a judicial question. The question as to what are public navigable waters of the United States, and embraced within the scope of the admiralty and maritime jurisdiction, as known and understood in the United States when the constitution was adopted, is a judicial question, to be determined in the last resort by the federal supreme court. As shown by the judicial history of the country, it has always been treated as a judicial question. By the judiciary, the common law rule making the ebb and flow of the tide the test of navigability and admiralty was first adopted; and by the judiciary that rule was afterwards abandoned and repudiated, and the modern rule of navigability in fact adopted as the test of jurisdiction, and applied in the actual adjudication of cases to different waters, such as the 53 The Genesee Chief, 12 How. 443 (13:1058); The Propeller Commerce, 1 Black, 574 (17:107); The Belfast, 7 Wall. 624 (19:266); Ex parte Boyer, 109 U. S. 629 (27: 1056); Perry v. Haines, 191 U. S. 17-55 (48:73). 54 The Propeller Commerce, 1 Black, 574 (17:107); Ex parte 55 The Belfast, 7 Wall. 624 (19: 266); Perry v. Haines, 191 U. S. 17-55 (48:73); Re Garnett, 141 U. S. 1 (35:631); The E. M. McCheseney, 8 Ben. 150, Fed. Cas. No. 4,463. Grand river in Michigan, the Fox river in Wisconsin, the Illinois and Michigan canal, which is wholly within the state of Illinois, and the Erie canal which is wholly within the state of New York. The principles of the constitution and judicial practice and precedents support the proposition that navigability and jurisdiction are exclusively a judicial question. Congress has no power to determine that question so as to bind the judiciary.56 § 534. Rule defining navigable waters of the state. If a river is not of itself a highway for commerce with other states or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the state, then it is not a navigable water of the United States, but only a navigable water of the state.57 § 535. The constitutional grant of judicial power over admiralty and maritime causes did not operate as a cession of navigable waters.-The constitutional grant to the federal government of judicial power over "all cases of admiralty and maritime jurisdiction" did not operate as a cession to that government of the public navigable waters situated within the limits of the states, nor of general legislative jurisdiction over those waters; but, subject to the paramount authority of the general government to exercise full and complete admiralty and maritime jurisdiction and to regulate foreign and interstate commerce, the states, each respectively, retains municipal sovereignty and jurisdiction over all public navigable waters within its territorial limits, including tide waters, extending one marine league from the seashore at low water mark into the sea." 58 56 The Genesee Chief, 12 How. 443 (13:1058); Fretz v. Bull, 12 How. 466 (13:1068); The Magnolia, 20 How. 296 (15:909); The Daniel Ball, 10 Wall. 557 (19:999); The Montello, 20 Wall. 430 (22: 391); Ex parte Boyer, 109 U. S. 629 (27: 1056); Perry v. Haines, 191 U. S. 17, 55 (48:73); The Thomas Jefferson, 10 Wheat. 428 (6:358). 57 The Montello, 11 Wall. 411 (20:191), cited arguendo with ap proval in Perry v. Haines, 191 U. S. 17-55 (48:73); Brown, Justice, delivering the opinion of the court, saying: "It is not intended here to intimate that, if the waters, though navagable, are wholly territorial and used only for local traffic-such, for instance, as the interior lakes of the state of New York-they are to be considered as navigable waters of the United States." 58 United States v. Bevans, 3 § 536. Criminal jurisdiction in admiralty.-The courts of the United States, merely by the grant of judicial power over causes of admiralty and maritime jurisdiction, and in the absence of appropriate legislation by congress, have no criminal jurisdiction in admiralty, the criminal jurisdiction of the federal courts being derived wholly from the statutes of the United States enacted in the execution of some power granted by the constitution; 59 but congress has enacted a criminal admiralty code, the provisions of which are contained in the revised statutes here cited, and to which the reader is referred.60 § 537. History of federal legislation vesting admiralty jurisdiction-Ninth section of the original judiciary act.-The ninth section of the original judiciary act, which defined the jurisdiction of the district courts, contains, among other provisions, the following: "And shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas, saving to suitors in all cases the right of a common law remedy where the common law is competent to give it." 61 § 538. Same Same-Seizures upon water.-When that part of the ninth section of the judiciary act in regard to seizures"including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well Wheat. 336-391 (4:404); Manchester v. Commonwealth of Massachusetts, 139 U. S. 240, 266 (35:159), affirming S. C. 152 Mass. 230-246, 9 L. R. A. 236, 25 N. E. 118, 23 Am. St. R. 820-836, and note 837841; McCready v. Virginia, 94 U. S. 391 (24:248); Smith v. Maryland, 18 How. 74 (15:269). 59 United States v. Bevans, 3 Wheat. 336-391 (4:404); Manchester v. Commonwealth of Massachusetts, 139 U. S. 240, 266 (35:159); Ex parte Byers, 32 Fed. 405; United States v. Peterson, 64 Fed. 147; Commonwealth V. Peters, 12 Met. 393. 60 U. S. Rev. Stat. Title LXX, ch. 3, secs. 5339-5391, 3 U. S. Comp. Stat. 1901, pp. 3625-3653; 3 Fed. Stat. Anno. 231-237. 61 1 U. S. Stat. at L. ch. 20, pp. 73-79; 2 Bates Fed. Eq. Proc. appendix II, pp. 907-926, where the original judiciary act September 24, 1789, is reproduced in full. |