The Revenue Cutter No. 1

WILLSON, District Judge. The most important matter for consideration in this case is involved in the question of the jurisdiction of the court over the vessel seized, as the record shows such vessel was not enrolled and licensed for the coasting trade, or-engaged in the business of commerce and navigation between different states. This inquiry, more properly, should have been disposed of at the inception of proceedings in the cause, but its great practical importance has induced us to reserve the point for decision till the final hearing. The question of jurisdiction arises upon the construction of the ninth section of the judiciary act of 1789 (1 Stat 70), and the legal effect to be given to the act of February 20, 1S45 (5 Stat. 720). It is claimed by the counsel for the respondent that this vessel, not being enrolled and licensed for the coasting trade, or employed in business of commerce or navigation, &e., was not within the purview of the act of 1845, and, consequently, was not subject to admiralty process in rem in the district court of the United States. The consideration of this branch of the case-demands a careful examination of the con [565] stitution of the United States and the acts of congress by which admiralty jurisdiction is conferred upon the federal courts. Section 2, in article 3 of the constitution, declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. The ninth section of the judiciary act of 17S9 provides that “the district courts shall 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 burden, within their respective districts, as well as upon the high seas.” In the case of Jackson v. The Magnolia, 20 How. [61 U. S.] 298, Mr. Justice Grier, in delivering the opinion of the court, says that “before the adoption of the present constitution, each state, in the exercise of its sovereign power, had its own court of admiralty, having jurisdiction over the harbors, creeks, inlets, and public navigable waters connected with the sea. This jurisdiction was exercised not only over rivers, creeks and inlets which were boundaries to or passed through other states, but also when they were wholly within the state. Such a distinction was unknown. Nor had these courts been driven from the exercise of jurisdiction over torts committed on navigable water within the body of a county, by the jealousy of the common law courts. When, therefore, the exercise of admiralty and maritime jurisdiction over its public rivers, ports and havens was surrendered by each state to the government of the United States, without an exception as to subjects or places, this court cannot interpolate into the constitution, or introduce an arbitrary distinction which has no foundation in reason or precedent.” It had been previously held by the same high authority ([The Genesee Chief], 12 How. [53 U. S.] 454) that “there is nothing in the ebb and flow of the tide that makes the water peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is public navigable water, on which commerce is carried on between different states or nations, the reason for the jurisdiction is precisely the same. And if a distinction is made on that account, it is merely arbitrary, without any foundation in reason.” The chief justice, in the case of The Genesee Chief [supra], with a just and comprehensive view of the rights and necessities of the people in the states bordering upon the lakes, declares that: “Courts of admiralty have been found necessary in all commercial countries, not only for the safety and convenience of commerce and a speedy decision of controversies where delay would often be ruin, but also to administer the laws of nations in a season of war, and to determine the validity of captures, and questions of prize or no prize in a judicial proceeding. And it would be contrary to the first principles on which the union was formed, to confine these rights to the states bordering on the Atlantic and to tide-water rivers connected with it, and deny them to the citizens who border on the lakes and the great navigable streams which flow through the Western states. Certainly such was not the intention of the framers of the constitution: and if such be the construction finally given to it, by this court, it must necessarily produce great public inconvenience, and at the same time fail to accomplish one of the great objects of the framers of the constitution — that is, perfect equality in the rights and privileges of the citizens of the different states, not only in the laws of the general government, but in the mode of administering them.” This exposition by the supreme court, of the power given in the constitution to the general government over all cases of admiralty and maritime jurisdiction, is conclusive that congress has authority to confer this jurisdiction upon the federal courts, to the full extent of power possessed by the judges of the vice admiralty courts in this country under the colonial system, and the state admiralty courts under the confederation; and that this jurisdiction is not affected by the restraining statutes of Richard II. and Henry IV. of England. The next inquiry is, whether congress, in framing the ninth section of the judiciary act, failed to carry out this great purpose of equality in the laws of the United States, and the mode of administering them in all the states of the Union, without any exception as to the subjects and places. The first clause of the section quoted provides that “the district courts shall have exclusive original cognizance of all civil cases of admiralty and maritime jurisdiction.” This provision is complete in itself, and invests the district courts wjth absolute admiralty and maritime jurisdiction, without any restriction as to the powers conferred, or any limitation as to .the subjects and places for the exercise of those powers. And unless the succeeding clause in this ninth section was intended to restrict the former, then there can be no doubt of the authority of the district courts to exercise, by virtue of the statute, admiralty jurisdiction over vessels upon the waters of the great lakes. We again quote the language of the succeeding clause, to wit: “including all seizures under laws of impost, navigation or trade of the United States, when the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas.” The statute, by words of well defined meaning, in the first clause confers upon the district courts admiralty and maritime jurisdiction. In the second clause it confers upon the district courts jurisdiction of a class of common law cases, over which courts of admiralty had never before taken cognizance. In England, seizures [566] under the laws of imposts were peculiarly cognizable in the court of exchequer under the authority and process of tne common law. (jases of forfeiture for breaches of the revenue laws were cognizable in the exchequer upon information, though seizure was made upon navigable waters; ana the question of fact, on which the forfeiture arose, was always tried by a jury. And such also was the course of procedure in the exchequer for the violation of the navigation laws. In the case of Attorney General v. Jackson, Bunb. 236, the seizure was of a vessel for the broach of the “act of navigation,” and the proceeding was by information and trial by jury, according to the course of the common law. Congress, in the exercise of its authority, under the constitution, to establish the federal courts, did not see fit to create a court of exchequer. It established the supreme, circuit, and district courts, and defined their powers. It was competent to give to either of them the administration of the laws relating to imposts, navigation and trade. It was given io the district courts, to be exercised within their respective districts, when seizures should be made on waters which are navigable from the sea by vessels of ten or more tons burden. This authority and its limitation had reference to the exigencies of the foreign trade of the country, and to the enforcement of revenue laws relating to imposts. It was doubtless supposed that vessels employed in the foreign, traae and navigating the ocean would exceed ten tons burden, and that in carrying on the commercial operations of the country, such vessels would enter the rivers, inlets and bays whose waters are navigable from the sea. The giving to the district courts cognizance over this class of common law cases was not essential, nor was it intended to give strength to the admiralty powers previously conferred. The jurisdiction of the court over one class of cases has no necessary connection with the jurisdiction over the other. And hence, by no rule of construction, can the limitation of the jurisdiction of the court over seizures, under laws of imposts, made upon waters navigable from the sea. be held to limit the jurisdiction of tlie court in the exercise of its powers in admiralty and maritime cases. A contrary rule of construction would make the statute an instrument of injustice, and defeat the great purpose of the constitution, as interpreted by the supreme court of the United States. We hold, then, that by virtue of the nintli section of the judiciary act of 1789, the district courts of the United States have precisely the same admiralty jurisdiction upon the great lakes as upon the navigable waters of the seaboard; and that tne maritime law has the same application to cases upon these inland seas, as it has to those on tide waters. We now proceed to examine and consider the operation and legal effect of the act of February 2(1. 1845. This law provides that “the district courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in business, of commerce and navigation between ports and places in different states and territories upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce upon the high seas, or tide waters, within the admiralty and maritime jurisdiction of the United States; and in all suits brought in such courts in all such matters of contract or tort, the remedies and the forms of process, and the modes of proceeding shall be the same as are or may be used by such courts in cases of admiralty and maritime jurisdiction; and the maritime law of the United States, so far as the same is or may be applicable thereto, shall constitute the. rule of decision in such suits, in the same manner, and to the same extent and with the same equities as it now does in cases of admiralty and maritime jurisdiction; saving, however, to parties, the right of trial by jury of all facts put in issue in such suits, where either party shall require it; and saving also to the parties the right or a concurrent remedy at the common law, when it is competent to give it, and any concurrent remedy which may be given by the state laws, where such steamer or other vessel is employed in such business of commerce and navigation.” The circumstances, and the apparent necessity which induced congress to enact this law, are well understood by the profession in the states, bordering upon the great lakes. Previous to the year 1S45, the supreme court of the United States had, by a uniform course of decision, adopted the theory of the English courts, of limiting the jurisdiction of the admiralty t.o waters subject to the ebb and flow of the tide. In the case of the Thomas Jefferson, 10 Wheat. [23 U. S.] 428, decided in 1820, it was held that the admiralty had no jurisdiction over contracts for the hire of seamen, except in cases where tlie service was performed upon the sea. or upon waters within the ebb and flow of the tide. This was a leading case, and the opinion of the court was pronounced by Mr. Justice Story, who was pre-eminent for his learning, and whose expositions of constitutional and maritime law have ever commanded respect at home and abroad. But this learned jurist evidently saw and felt the injustice of the rule of law established in that case; for he there put the qunere whether, under the power to regulate commerce, congress might not extend the remedy, by the summary process of the admiralty, to the case of voyages on the Western waters. And, in the opinion delivered. he gave the significant suggestion (since acted on by congress) that “if the public inconvenience from the want of process of [567] an analogous nature shall be extensively felt, the attention of the legislature will doubtless be drawn to the subject.” The same doctrine of limiting the admiralty jurisdiction to tide water, was again affirmed in 1S37, by the same court, in case of The Orleans v. Phœbus, 11 Pet. [36 U. S.] 175. This continued and apparently settled interpretation of the constitution by the highest judicial tribunal of the country, and its palpable injustice to those connected with the great commercial marine of the lakes, left to congress no other alternative than to profit by the suggestion of the court, intimated in the ease of the Thomas Jefferson, and if possible by legislation, to mitigate the evil and soften the injustice resulting from the doctrine of those eases. It was this condition of things that brought about the passage of the act of February 26, 1845. The law is entitled “An act to extend the jurisdiction of the district courts to certain cases upon the lakes and navigable water connecting the same.” The act, neither in its title or its body, purports to confer upon the district courts admiralty and maritime jurisdiction; nor was such the purpose of its framers. It authorizes quasi admiralty proceedings in certain cases, it is true. But it is clear that congress did not look to the second section of the third article of the constitution for its authority to pass the act, for, at that time, it was well settled by the judgment of the supreme court, that this second section did not invest the government of the United States with any power to confer upon the federal courts admiralty jurisdiction over waters not affected by the tide. It is equally clear that in passing the act, congress looked for its authority solely to the eighth section of the first article of the constitution, which declares that “congress shall have power to regulate commerce with foreign nations and among the several states.” Under this provision it had been repeatedly held that congress has power to legislate over navigation as well as trade; that it has power to prescribe what shall constitute American vessels and the national character of the seamen who shall navigate them; and also to prescribe rules and regulations for the intercourse and navigation of such vessels between the different states and territories. But the act of 1845 does not repeal or otherwise abrogate the ninth section of the law of 1780, or any part of it. At most, it 'can only be regarded as affording remedies which are cumulative upon former laws. It designates a class of vessels of twenty tons burden and upwards that are enrolled and licensed for the coasting trade, and at the time employed in business of commerce and navigation between ports and places in different states and territories upon the lakes. It makes no provision in relation to vessels engaged in the foreign trade; nor does it embrace remedies upon a large variety of maritime contracts, having no connection with the navigation and trade between different states. We know of no rule of construction by which the act of 1845 should be held to have the effect of repealing any portion of the ninth section of the judiciary act, or to i abridge any of the admiralty powers con- ! ferred upon the district courts by me statute ! of 17S9. Its purpose, as avowed in its title, is “to extend the jurisdiction of the district courts;” and it certainly cannot be so construed as to limit and abridge an existing jurisdiction. This interpretation and construction of the act of 1845, as to its effect upon previous legislation, is amply sustained by authority. When a statute gives a new remedy without impairing or denying one already known to the law, the rule is to consider it as cumulative, allowing either the new or the old remedy to be pursued. 15 Ohio, 65; 15 Johns. 222. To repeal a statute by implication, it is not sufficient to establish that subsequent laws cover some or even all the cases provided for by the prior law, for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy; and even then the old law is repealed only pro 1 tanto to the extent of the repugnancy, i [Wood v. U. S.] 16 Pet [41 U. S.] 302; [DaI viess v. Fairbank], 3 How. [44 U. S.] 646. | There is no repugnancy between the acts of i 1789 and 1845. Under the former law, the ' district courts have jurisdiction of vessels under twenty tons burden, whether enrolled and licensed or not, and also of vessels employed in the foreign trade. And they have jurisdiction of those exceeding twenty tons burden that are enrolled and licensed, and engaged in i navigation between different states, not only by virtue and under the authority of the act of 1789, but also by the act of 1845; and yet the right of the trial of facts put in issue to a jury, is secured in all cases. This we believe to be the true import and legal effect of the two acts of congress, when considered and construed together. We do not intend i or desire to enter upon a discussion of the i constitutional power of congress to pass, and to make either of these laws operative uj)on the great lakes. Nor is it for us to sit in judgment upon the merits of the controversy which, for many years, has engaged the members of the supreme court of the United States, upon the question of limiting the admiralty jurisdiction of the federal courts to tide waters. That controversy has been dis. tinguished for great ability and profound i learning. It has been attended with all the ! sensitiveness (and yet without any of the ¡ arrogance or acrimony), which characterized i the struggle for jurisdiction in England, between the courts of common law and those ■ of the admiralty and chancery, in the early ! part of the seventeenth century. We are well satisfied with the interpretation of the j constitution, as to the extent of the admiralty | powers possessed by the general government, I which is now established by the mature judg568 meat of the supreme court of the United States; and it is enough to know that the cases of The Thomas Jefferson [10 Wheat. (23 U. S.) 428], and The Orleans v. Phœbus, 11 Pet [36 U. S. 175], are overruled cases, and that the doctrine maintained by the su-' preme court in the cases of The Genesee Chief and The Magnolia, furnishes a rule of decision which is of paramount authority in all the courts of the United States. On the whole, we are of the opinion that the admiralty jurisdiction of this court is rightfully exercised over the vessel seized in this case, and that it is no valid objection to the jurisdiction, that the vessel, at the time of seizure, was not enrolled and licensed for the coasting trade, or engaged in the business of commerce and navigation between different states or territories. Decree for li-bellant.