John Catron

“ 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. ”

“ As a single illustration that their views in the act of 1789 have probably been misconstrued or misapprehended, if seizures for breaches of the laws of revenue and trade were in reality 'cases of admiralty and maritime jurisdiction,' as meant in the constitution, then no statute was necessary, like a 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 our fathers never could have meant, that parties, for matters happening within a county or State, should be dragged into admiralty any more than equity, if as full a remedy, and of as good a kind, existed in courts of law, where they could enjoy their favorite code and mode of trial. ”

“ 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. ”

“ 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. ”

“ 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, and 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. ”

“ With much naivet e, he says,-'In prosecutions in the courts of vice-admirality 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 as of law are decided by a judge alone, without the intervention of a jury; for such was the inclination of the colonists in many provinces to carry on a contraband trade, that to try the fact of an information by a jury would be almost equivalent to the repealing of the act of Parliament on which such information was grounded. ”

“ 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. ”

“ 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. ”

“ 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 any thing 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. ”

“ But the second objection to our jurisdiction being also considered by the court untenable, the case is to be examined on the merits; 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. ”

“ 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 unnecessary ”

“ 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 care and skill to avoid collisions. ”

“ It is not the line even of the civil law, and 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 ”

“ 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, 244) , except through a jury, used to settle the facts and assess the damages. ”

“ 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. ”

“ 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 Stat. at L., 83. So as to admiralty, a statute of Pennsylvania, passed during the Revolution, allowed it only in cases 'not cognizable at common law.' 1 Dall., 106. ”

“ 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 Jur., 381) , though she did not lie by, as she should have done, under the law of Louisiana, if that was in force, and she wished to throw all the risk on 'the ascending boat'; for throwing that risk so is the only gain by conforming to the statute. ”

“ 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 Bull. & C. Dig., § 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 ”

“ 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, Baldw., 549; Woodcock, 242. ”

“ 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. ”

“ Blackstone 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. ”

“ Haffards, 20 Pick. (Mass.) , 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 vice-admiralty judges, or any difference of circumstances and condition. ”

“ The admiralty in England did not exercise any jurisdiction over seizures for revenue, though on the ocean. 8 Wheat., 396, note. But it was in the court of exchequer, and was devolved on admiralty courts in the colonies for convenience, as no court of exchequer existed there. Duponceau's Jurisdiction, 139, and note. This additional jurisdiction, however, was not an admiralty one, and ought to have been used with a jury, if desired, as in the exchequer. Powers not admiralty are for convenience still devolved on admiralty courts ”

“ He takes their opinion and advice on the facts as to collisions of vessels before he himself decides. 2 Bro. Civ. & Adm. Law, 112; 6 T. R., 766; The Celt, 3 Hagg. Adm., 327. The case is often fully argued before them first. 1 Wm. Rob., 133-135, 273, 314; Hall, Adm. Pr., 139; 5 Rob. Adm., 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. ”

“ Woodbury, April 15, 1740, is a libel for a trespass. But it is carefully averred to have taken place 'at the Bay of Hondurus, upon the open sea, on board the ship King George.' No other case of tort is printed, and on a careful examination of what has not been printed no case is found varying the principle. There is one for conversion of a vessel and cargo, July 30th, 1742, tried before George Cradock, deputy judge in admiralty, Farrington v. ”

“ 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 VIII. (Com. Dig., Admiralty) , and so far from the same principle not being considered in force here, the constitution itself, before any amendments, expressly provided for all criminal trials of every kind being by a jury. Art. ”