The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-01-04

are alike branches Of the great subject Of internal
Al the population territory and wealth OF the coun-
try increased and settlements extended into remote
gons the necessity for additional means OF communica
tion impressed itself upon all mobs with which
had not bee perienced tbs formation of
the constitution and more and those
who were most anxious TO abstain scrupulousy from
any exercise OF doubtful power Hence the recognition
In the messages OF Presidents Jefferson Madison and
Monroe OF the emnt OF such with
the admission that some Of them could lawfully and
should be conducted by the general government but
with obvious uncertainty Of opinion to ths line be-
tween such and such as are not
such ought TO receive appropriations Congress-
and such A ought to be consigned to private enterprise
or the legislation Of the several States,
This uncertainty has not been removed by the prac
fical working Of institutions 10 later times for al
though the acquisition of additional territory and the
greatly magnaed the Importance Of internal
this fact has At the same time complicated the ques
ton OF the power of the general the
In ane a careful review of the opinions of all my
predecessors, and of the legislative history Of the
try does not indicate any fxed rule BY which TO decide
what OF the infinite variety OF possible river and har
Dor improvements within the scope Of the power
delegated BY the constitution and the question stall
mains unsettled President Jackson conceded the
stitutonaty, under suitable circumstances, OF the i'm
provement Of and harbors, through the agency
Of Congress- and President Polk admitted the propre
OF the establishment and support, by approp'
from the treasury Of light houses beacons buoys and
other improvements within the bays inlets and har
bors Of the ocean and lake coasts Immediately con-
nected with foreign commerce.
But II the distinction thus made rests upon the differ
ences between foreign and domestic commerce, IL
not be restricted thereby to the bays nets and harbors
Of the oceans and lakes because foreign commerce has
already penetrated thousands Of miles into the interior
viii eoptinus so ..tsnS t.s Up, shes s anS
settlement, until reaches the limit Of nAygability.
the time OF the adoption Of the vast
valley Of the Missssipp, now teeming with population
and supplying almost boundless resources was literally
unexplored wilderness. Our advancement has out
stripped even the most ssngune antcpations OF the ia
and In Il, that
rule In admissible which undertakes TO discriminate 80
far regards river and harbor improvements between
Of the interior regions of North America Indeed 1t IL
quite erroneous to suppose that such discrimination
has ever existed In the practice Of the government To
the contrary pof which s the significant fact before
stated that when after abstainng from all such appro.
priatons for than thirty years. Congress entered
upon the policy of improving the navigation Of rivers
and harbors 1t commenced with the rivers Mississippi
and Ohio.
The Congress Of the Union adopting in this respect
heed TO declare from time to time required
either In acts for disposng OF the public lands in the
Territories or in acts for admitting States that all
navigable rivers within the sha be deemed to be
and remain public Highways
Out Of this condition Of things arose a question
which at successive periods Of public annals has
occupied the attention Of the best minds Of the Union
Thin question s, what waters are public navigable
ters so as not to be Of State character jurisdiction
but of federal jurisdiction and character in the intent
Of the constitution and of Congresss proxmate but
imperfect answer TO this important question Is furnish
ed by the acts OF Congress and the decisions Of the
preme Court Of the United States defining the consttu
tonal limits Of the maritime jurisdiction OF the general
government That jurisdiction is entirely Independent
OF the revenue power. II Is not derived from that
isit measured thereby.
In that act Of Congress which, the first year Of the
government organized our judicial system, and which,
whether look to the subject, the comprehensive
dom with which II treated, the Difference with
which its provisions have TO be regarded Is only
second TO the constitution itself, there section In
which the statesmen who framed the constitution have
placed record their construction of II In this matter
1t epacs that the district courts OF the United States
shall have exclusive cognzance Of all civil Of
admiralty and maritime jurisdiction, including all
seizures under the law mpost, navigation trade of
the United States when the waters
which navgable from the by vessels of ten or
more tons burden within their respective districts,
wei az upon the high seas" In this cotemporaneous
exposition OF the constitution there is of sug
geston that nationality of jurisdiction In limited the
sea- or even to tide waters.
The law Is marked by sagacious apprehe nson OF the
fact that the great lakes and the Mississippi navi
gable waters OF the United States then before the
acquisition Of Louisiana had made wholly the
territorial greatness OF the West. II repudates,
equiyocally, the rule Of the law according 10
which the question Of whether water Ia public navi.
gable water not depends upon whether is salt or
not and therefore in river confines that quality to
tide water-a rule resulting from the phcal con
dton Of England and applicable to island with small
which, for ships is In immediate contact With the ocean
but wholly inappcable to the great inland fresh water
seas OF America and ITS mighty rivers, with secondary
branches exceeding in magnitude the largest rivers OF
Great Britain.
At later PERIOD It Is true that in disregard Of the
comprehensive definition OF ma ygability afforded
by that act Of Congress- it for time held by many
that the rule established for England be received
in the United States the effect Of which to exclude
from the jurisdiction Of the general government not
only the waters Of the Mississippi but also those Of the
great lakes.
To this construction II was with truth obec ed that
in far the lakes they In fact seas al
though Of fresh water that they the natural
rine communications between a series Of populous
States and between them and the possesrions OF TO
nation that they actually nAy2Ated
OF commerce Of the largest capacity that they had
been, and might again be- the Of foreign and
that therefore II doing violence TO all TO
dertake by means OF arbitrary doctrine Of the tech
meal foreign law 10 exclude such waters from juris
river Mississippi, 1t objected that to draw a line
across that river at the point OF ebb and food OF tide
and say that the part below public navgable water
and the part above not while In the latter the
at least equally deep and navgabc and It's
rich ~ In the former, with numerous ports of foreign
entry and delivery was TO sanction distinction arh
cia and unjust because regardless Of the real fact Of
navigablity
We may conceive that some such considerations led
To the enactment In the year 1s45, OF act In addition
to thar Of 1889 declaring that the district 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 this time
ployed in business Of commerce and navigation be.
tween ports and places in different States Terrific
ries upon the lakes and nayigsbe connecting
said lakes as IL now possessed and exercised by the
courts IN cases OF the ike HteambOats and other
vessels employed in navigation md commerce upon the
high seas or tide waters within the ralty and mari
time jurisdiction Of the United States"
II IL observable that the act Of 1889 applies the urs
dicton 81 the United States 10 all "wasrs which are
navgabe from the sea- for vessels Of ten tons burden
and that OF 1916 extends the Jurisdiction 70 enrolled
vessels OF twenty tons burden on the lakes aud nayi
gable waters connecting said lakes though not waters
navgable from the sea, provided such vessels b.
pioyed between places In different states and Terri
tories.
Thus u appears that these provisions OF law in effect
prescribe conditions by which 20 determine whether any
waters public navigablc waters subject TO the
thortty Of the federal government The conditions in
cnde all waters whether salt fresh and whether OF sea
lake or river provided they be capable OF navigation by
between the United states aud foreign countries be
tween any two 81 the States Territories Of
the MON. This excludes water wholly within any par
tcular state and not used the means commercial
communication with any other State, and subject 70
be improved OF olsructed at will by the State within
which may happen 10 he.
lie Of thee prnxsons Of statnte ha