Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1855-01-12

ACQUISITION of additional territory and the application Of
the Importance Of internal commerce. this fact has at the
time complicated the question OF the power OF the gen
eral government over the present subject.
ne acareful review of the opinions of all my prede
and of the legislative history of the country does
infinite variety of possible river and harbor improvements
within the of the power delegated by the eontu
Jackson conceded constituonaty under suitable cir
eumsances of REINFORCEMENT and harbos through
the agency Congress; and President Polk admitted the
propriety of the establishment support appropriations
from the treasury beacons buoys and other
improvements within the bays nlets. and harbos of the
and lake Immediately connected with foreign
But if the distinction thus upon the differences
between foreign and domestic commerce. be
thereby the bays nle and harbors OF the oceans and
lakes because foreign has already penetrated
thousands miles the continent by
great rivers and viii continue to extend itself with
s ss5 RiSE'''' of settlement until reaches the limit nA
At the the time adoption of the constitution the vast
valley of the Mississippi cemng with population and
supplying almost boundess resources literally
pored wilderness Our has outstrpped even
the sangune ancipations of the fathers of the epu6
c illustrates the fact, that rule is admissible
which undertakes discriminate far regards river and
harbor between the Atlantic Pacific coasts
great lakes and rivers of the interior of North
America Indeed is quite to suppose that
To the contrary Of which the significant
fact before stated that when after abstaning from all such
appropriations for than thirty Congress entered
upon the policy of improving the navigation of rivers and
harbors commenced with the Mississippi and Ohio
The Congress of the Union adopting in this repest
ideas of that of the confederation has taken heed to
declare from time to time occasion required either in
for sposng of the public lands in the Territories
in for admitting States that all gable rivers
within the shall be deemed to be and remain public
highways $3.50 49, $3.50
periods of public annals has occupied the at
ention of the best minds in the Union This question is
what public navigabe waters, not o be of
State character and ursdcon but of federal jurisdiction
and character in the intent of the constitution and OF Con-
gress proximate but imperfect to this mpor
question furnished by the acts of Congress and the
decisions of the Supreme Court OF the United States defining
the constitutional limits of the marame jurisdiction Ct the
general government. That jurisdiction is entirely indepea
dent of the power 1t is not derived from that
is it measured thereby.
In that Cong ress which, in the first year of the
government, organized judicial system, and which,
whether look the subject, the comprehensive wisdom
with which treated the Difference with which its
provisions have be regarded only second to the
constitution ITSELF there is section in which the statesmen
who framed the constitution have placed record their
construction of it i'll this matter 1t enacts that the district
courts OF United shal exclusive cogni-
all civil cases ofadmraty and maritime jurisdiction,
including all under the law impost navgation
trade States when made
waters which navgabe from the by vessels
tons burden within their respective districts, well
upon the high seas In this cotemporaneous exposition
of the constitution there suggestion that
tOnalty jurisdiction limited to the to tide
The law is marked by sagacous apprehension of
the fact that the great lakes and the Mississippi
gable waters of the United States them before the
QUESTION of Louisiana had made wholly the terri
oria greatness of the West repudiae, unequvocay
the rule of the law according to which the question
of whether public navigabe depends
upon whether it is salt not and therefore i'll river
fines that quality de-water-a rule resulting from the
geographical condition of England, and applicable to
island with small and narrow streams, the only navgable
portion of which, for ships is in immediate contact with the
ocean, but wholly napplcable to the great inland fresh
of America and its mighty rivers, with secondary
branches exceeding magnitude the largest rivers of Great
! Britain
Alta later period it is true that in disregard Of the
comprehensive definition of navgabity afforded by that
of Congress- for time held by many that the rule
established for England to be received in the United
States the effect of which exclude from the iusdic
ton of the general government only the the
Mississippi but also those of the great lakes this
ructon it was with truth Objected that in so far as con-
| ac
water that they the natural marine communications be-
the pc sessions foreign nation they actually
navgated by ships OF commerce of largest capacity that
they had BEEN and might again be- the of for
egn and that therefore doing violence all
to undertake. by of arbitrary doctrine of tech
meal foreign law to exclude such waters from the ursdc
spp it objected that to draw line that river
below public navgable water and the part above not
while in the latter the water at least equally deep and
navgabe and its rich in the former with
ports of foreign entry and delivery sanction
distinction artificial and unjust, because regardless of the
real fact of navgability.
We may conceive that such considerations led
in the year 1885, of in addition that Of
17S9 declaring that the district the United
shall have possess and exercise the jurisdiction in mat
ers of contract and tort arising in, upon, concerning
steamboats, and other vessels of twenty tons burden and up
wards enrolled and licensed for the coasng trade and at
the time employed in business of and navigation
between and places different States and Territories
upon the lakes and navgabe connecting said lakes
possessed and exercised by the said
of the like steamboats, and other vessels employed in nav
cation and commerce upon the high tdewates with
the admiralty and maritime jurisdiction of the United
States''
observable that the of 1889 applies the jurisdiction
of the United States to all waters which navgable
from the for vessels of ten tons BURDEN and that
1916 extends the jurisdiction enrolled vessels twenty
tons BURDEN on the lakes and nagbe waters connecting
said lakes though waters navgabe from the prov
ded such vessels be employed between places in different
States and Territories.
Thus appears that these provisions of law in effect pre-
scribe conditions by which to determine whether waters
e the M of
whether salt esh and whether of sea- lake. river
vded they be capable navigation by vessels of
tonnage commerce either United States
and foreign countries, between two of the
States Territories Of the Union. This excludes water
wholly within any particular State, and not used the
of commercial communication with other State
and subject to be improved obstructed at WILL by the
State within which it may happen to be.
The coustuonay of these provisions of statute has been
called in question Their constituOnaty has been main
however by repeated decisions of the Supreme Court
of the United States and they therefore, the law of the
land by the act of the legislative the executive
and the judicial departments of the government.
Regarded afordng criterion of what gable
ter, and such subject to the maritime jurisdiction of the
Supreme Court AID of Congress- these Objectionable
in this that the rule of navigaby arbitrary that
and that thus legislative definition will be able
enlarge the limits of constitutional power this va
riabeness standard inherent the things
At rate neither the first Congress- composed the
statesmen of the when the constitution adopted nor
any subsequent Congress- has afforded the
ing greater precision of construction this part
f constitution.
This reflection may relieve from undeerved
proach an idea of of the greatest of the republic
PRESIDENT Jackson e seeking amid all the difficulties of
the subject for practical rule of action in regard to
preparations for the improvement of rivers and harbors
scrbed for his official conduct the rule combining
appropriations to places below the ports entry deive
established by law He clearly as the authors of
the above mentioned acts of 1889 and 1915 did, that
no nfexlbe natural line of discrimination between what is
national and what local. by of which to determine
absolutely and unerrng what point the iuris-
detion of the United States shall end He perceived of