THE PEOPLE V. TYLER. only, it became important to enquire what had been the course of legislation by Congress, and the decisions of the Federal courts, in reference to the lakes. The decision in the Genesee Chief case was cited for no other purpose, and its citation can not, therefore, be construed as an approval of the principle there decided; nor was it so understood, I think, by the majority of the court; certainly I did not so understand it. But, to prevent all misapprehension of my own views - though the main point in the case of the Genesee Chief is not, I think, essential to the pre sent case, and will not therefore justify an extended discussion-I will here say, that, after a most careful consideration of all the grounds upon which the opinion in that case purports to rest, and of all the authorities within my reach bearing upon the question, with a very high respect for the ability of the eminent jurist who pronounced the opinion in that cause, and the majority of the court who concurred in that opinion, I have not been able to bring my mind to the same conclusion. Nor can I resist the conviction, that so much of that opinion as declares, that the lakes, and all the navigable rivers of the United States, are "within the scope of admiralty and maritime jurisdiction, as known and understood in the United States when the Constitution was adopted," is not only unsupported by any satisfactory proof, but is in direct opposition to the most overwhelming evidence, historical and judicial, both in this country and in England. This evidence will be found sufficiently collected and ably presented in the dissenting opinions of Mr. Justice Daniel and Mr. Justice Campbell in Jackson v. The Steamboat Magnolia, 20 How. 296, and the dissenting opinion of Mr. Justice Woodbury, in Waring v. Clarke, 5 How, 467, &c. See also the opinions of Judges Daniel and Woodbury, in New Jersey Steam Navigation Co. v. Merchants Bank, 6 How. 395, et. seq. (In the latter case I am inclined to think the jurisdiction might be maintained upon the ground of a marine tort, as suggested by THE PEOPLE V. TYLER. Mr. Justice Catron). The constitutional objections, which will appear in these opinions, against including the lakes and rivers of our country generally within the admiralty jurisdiction, have never, I think, been fairly met or answered; nor, in my opinion, can they be answered until the political and judicial history of England, and the contest which deprived her of her colonies and resulted in the adoption of the American Constitution, shall be re-written from materials not yet extant. As the decision in the case of the Genesee Chief was an entire departure from the uniform current of English decisions and those of the Federal courts, from the adoption of the Constitution down to that time, and as it established an entirely new and much more extended definition of admiralty jurisdiction, it is but just to infer that the reasons given by the court for the conclusion at which they arrived, were the strongest and most conclusive which, in their opinion, could be given for that conclusion. And, as the objections to such an extension of that jurisdiction were not unknown, but had most of them been previously and ably urged in the same court by Mr. Justice Woodbury in Waring v. Clarke, and by him and Mr. Justice Daniel, in New Jersey Steam Navigation Co. v. Merchant's Bank, it was but reasonable to expect an answer to those objections, in this case, if any such answer could be given. It is much to be regretted, that the court should have thought it unnecessary to refer to or attempt to answer these objections. Most of the reasons actually given, I am compelled to say, in my view not only fail to support the conclusion, but have a strong tendency to disprove it. The act of February 26th, 1845, entitled "An Act extending the jurisdiction of the District Courts to certain cases upon the Lakes and Navigable Waters connecting the same," which is referred to in the case of the Genesee Chief, and there held to have been enacted under the grant of admiralty power in the Constitution, must, I think, so far as it has any con THE PEOPLE v. TYLER. stitutional validity, rest upon the power to regulate commerce between the states, and the power to establish courts and to define their jurisdiction. That it was understood and intended by Congress mainly as a regulation of commerce, I can see no reason to doubt; and this intent, I think, is apparent on the face of the act. I. The entire act is confined to steam boats and other vessels, employed in the business of commerce and naviga tion between ports and places in different states and territories. This is an evident reference to the commercial power for the whole scope of the act. II. It does not purport to adopt, even as to these boats and vessels, the whole maritime law of the United States, but only "so far as the same is or may be applicable thereto an implied admission, at least, that the whole could not be applied. III. It secures to the parties the right of trial by jury, and it secures a concurrent remedy at the common law, and by the state laws. Most of these features were entirely unnecessary, and some of them a little extraordinary, if the act was passed as an admiralty regulation, and under that power in the Constitution. I am aware it is said in the opinion in the case to which I allude, that "the law contains no regulation of commerce that it merely confers a new jurisdiction on the district courts." I am compelled to think this but a partial view of the act. That it confers a new jurisdiction on the district. courts, I do not deny; but I think it does more; it creates, I think, an important regulation of commerce (and, to some extent, of navigation) which was to be the field or subject of that new jurisdiction. If the law had specifically provided, at length and in detail, the rules which should be applied to and govern the "cases of contract and tort" arising in, upon or concerning, the vessels employed in the business of commerce and navigation mentioned in the act-prescribing what should be the rights of the parties in specified cases and un THE PEOPLE v. TYLER. der specified circumstances, no reasonable doubt can, I think, be entertained that this would have been a regulation of commerce; and that, too, though it should be found that each of these specific provisions was identical in effect with what the maritime law would have prescribed for the like cases and under the like circumstances. Is it any the less a regulation of commerce, when the maritime law (so far as the same can constitutionally apply to the commerce in question) is adopted in gross, instead of specifying each particular provision? Suppose Congress, instead of the maritime law, had expressly enacted that the common law should apply to the commerce in question, or govern in the cases mentioned in this act; would it not be a regulation of commerce, because each specific requirement of the common law was not enacted in detail? By adopting the maritime law of the United States only "so far as the same may be applicable thereto " we are to understand, I think, that Congress intended to adopt it so far only as it may be applicable to commerce between states (to which the whole scope of the act is confined) and subject to all the limitations and qualifications incident to the power to regulate commerce between the states. Any feature of the maritime or admiralty law beyond this would be inapplicable to the class of cases referred to, because in conflict with the Constitution; hence the limitation. Such, if I understand the opinion, must have been substantially the view taken of this act by the Supreme Court of the United States in the recent case of Allen v. Newberry, et al., 21 How. 244 (And see McGuire v. Card. Ibid. 248). I can not, however, think with Mr. Justice McLane, (20 How. 304) that the admiralty and maritime jurisdiction is so essentially a commercial power, that it is necessarily limited to the exercise of the latter power by Congress. Though intimately related, in respect to the subjects upon which they are intended to operate, they are, I think, distinct and independent of each other; and the admiralty power, where it has THE PEOPLE . TYLER. any rightful existence, can not, I think, be circumscribed by the limitations attaching to the commercial power. But it is said, "if the admiralty jurisdiction in matters of contract and tort, which the courts of the United States may lawfully exercise on the high seas, can be extended to the lakes, under the power to regulate commerce, it can, with the same propriety, and upon the same construction, be extended to contracts on land, where the commerce is between different states. And it may also embrace the vehicles and persons engaged in carrying it on. It would be in the power of Congress to confer admiralty jurisdiction upon its courts over the cars engaged in transporting passengers or merchandise from one state to another, and over the persons engaged in conducting them, and deny to the parties the trial by jury." It is true a jury might be denied in the cases mentioned if Congress, under the power to regulate commerce, could confer admiralty jurisdiction as such, over the lakes and the railroads, and that without any of the limitations attaching to the commercial power. But that Congress could, under the commercial power, go beyond the limits of that power, I had not supposed could ever have been seriously claimed. And if Congress can, as by this act I think it has attempted, confer a jurisdiction only so far resembling the admiralty jurisdiction as is permitted under the commercial power, and subject to all the limitations incident to that power, no such consequence can follow. What is said in the above extract, as to the "propriety" of extending the admiralty jurisdiction to torts or contracts on land (if the power were admitted) I am compelled to think slightly overstated. Congress may, doubtless, without violating the Constitution, abuse any power it possesses; but we have the same security against such abuse in the case of the commercial power, as in the case of any other power. The possibility that Congress may so far forget the dictates of common sense, as to apply to the land, and land transportion, principles of law and modes of procedure applicable only to the water |