Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1855-01-04

posing of the public lands in the Territories, or in
acts for admitting new States, that all navi2able
rivers within the same shall be deemed 10 be and
remain public highways"
Gut Of this condition OF things arose question
winch, at successive periods Of our public annals,
mas occupied the attention Of the best minds in
Inc Union. This question is, what waters are
pubic navigable waters, so as not 10 be of State
| character and jurisdiction, but of Federal juris-
diction aud character in the intent of the Consti-
tullon and OF Congress? A proxmate, but imper-
iect answer 10 this important question is furnish
ed by the acts ofCongress and the decisions of the
supreme Court OF the United States, defining the
constitutional limits of the maritime jurisdiction
OF the general government. That jurisdiction is
entirely independent of the revenue power. II is
not derived from that, nor is il measured thereby.
In that act OF Congress which, in the first year
OF the government, organized our judicial system.
and which, whether look to the subject, the
comprehensive wisdom with which il was treat
ed, or the difference with which its provisions
have come 10 be regarded, is only second to the
Constitution itself,--there is a section in which
the statesmen, who framed the Constitution, have
placed on record their construction of il in this
matter ltsenacts that the district courts of the
United States shall have exclusive cognizance
OF all civil cases of admiralty and maritime juris-
dlction, including all seizures under the law of
impost navigation, or trade of the United States,
when the seizures are made on waters which are
navlgable from the sea by vessels Of ten or more
ions burden, within their respective districts as
well as upon The high seas" In this cotempora-
neous exposition Of the Constitution, there is no
trace OF suggestion that nationality Of Jurisdiction
Is limited TO the sea, or even TO tidewaters. The
lawls marked by a sagacous apprehension of the
fact that the great Lakes and the Mississippi were
navigable waters Of the United States even then,
before the acquisition Of Louisiana had made
wholly our own the territorial greatness Of the
West. IL renudintes m all fha rnl ~
the common law, according to which the question
OF whether water is public navigabe water or
not, depends on whether il is salt not and there
fore, in river, confines that quality TO Underwater;
rule resulting from the geographical condition
Of England, and applicable to an island with small
and narrow streams, the only navgable portion of
which, for ships, is in immediate contact with the
ocean, but wholly napplicable 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.
AL later period, il is true, that in disregard of
the more comprehensive definition of navigabity
afforded by that act of Congress, it was Tor time
held by many, that the rule established for Eng
land was TO be received in the United States; the
effect OF which was 10 exclude from the jurisdc-
lion Of the general government, not only the
ws,ers OF the Mississippi, but also those Of the
great lakes. To this construction II was with
truth objected that in so far concerns the lakes
they are in fact seas, although Of fresh water
between series ofpopulous States, and between
them and the possessions Of a foreign nation that
they are actually navigated by ships Of commerce.
OF the largest capacity; that they had once been,
and might again be, the scene of foreign war
and that therefore il was doing violence TO all
reason TO undertake, by means of an arbitrary
doctrine Of technical foreign law, 10 exclude such
waters from the jurisdiction of the general gov
eminent. In regard to the river Mississippi. il
was objected that, to draw line across thai river
he IF obi nd I<,TS IL IL ~.
the part below was public navigable water, and
the part above not, while in the latter the water
was at least equally deep and navgable, and its
commerce as rich as in the former, with numer.
Gus ports of foreign entry and delivery, was to
sanction distinction ARTIFICIAL and unjust, be-
cause regardless of the real fact of navigability
We may conceive that some such considera-
tons led 10 the enactment in the year 1S43 Of an
act in addition 10 that of 1850, declaring that "the
district courts of the United States shall have pos
sess, and exercise the same jurisdiction in matters
OF contract and tort, arising in, upon, concern
ing STEAMBOATS,, and othervessels oftwenty tons
burden and upwards, enrolled and licensed for the
coasting trade, and at the time employed in bust
ness of commerce and navigation between ports
and places In different States and Territories upon
the Lakes and navigabe 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 CON-
merce upon the high seas tidewaters, within
the admiralty and maritime jurisdiction of the
United States"
II is observable that the act OF 1889 applies the
Jurisdiction of the United States 10 all awaters
which are navigable from the sea" for vessels Of
ten tons burden; and that Of 1Si5 extends the
jurisdiction TO enrolled vessels OF twenty tons bur
den, on the Lakes and navigable waters connect
ing said Lakes, though not waters navigpble from
the sea, provided such vessels be employed be-
tween places in different States and Territories.
Thus IL appears that these provisions of law in
| n H.. -
whetherany waters are public navgable waters,
subject 10 the authority of the federal government
The conditions include all waters, whether salt or
fresh, and whether of sea, lake. or river provided
they be capable OF navigation by vessels of GER
tain tonnage, and for commerce, either between
the United States and foreign countries, or be-
tween any two or more Of the States or Terrific
res Of the Union. This excludes water wholly
within any particular State, and not used as the
means Of commercial communication with any
other State, and subject TO be improved or OBJ.
structed, al will, by the Stale within which il may
happen TO be.
The constitutionaty of these provisions of stat
ute has been called in question. Their constitu-
tionality has been maintained, however, by re-
peated decisions of the Supreme Court Of the
United States, and they are, therefore, the law OF
the land by the concurrent act of the legislative,
The executive, and the judicial departments Of the
government. Regarded as afording a criterion
OF what il nsvgable water, and as such subject 10
the maritime jurisdiction OF the Supreme Court
and Of Congress, these acts are objectionable in
this that the rule for navgability is an arbitrary
one; that Congress may repeal the present rule,
and adopt new one; and that thus a legislative
definition will be able to restrict or enlarge the
limits Of constitutional power. Yet this variable
| ne q Of standard seems inherent in the nature Of
things AT any rate, neither the first Congress
composed Of the statesmen Of the era when the
Constitution was adopted, nor any subsequent
Congress, has afforded us the means Of attaining
greater precision of construction 10 this part oil
| the Constitution.
This reflection may serve TO relieve from unde.
served reproach an idea Of one of the greatest
men OF the Republic, President Jackson. He
seeking amid all the difficulties of the subject for
some practical rule of action in regard to appro
prations for the Improvement Of rivers and har-
bors, prescribed for bis own Official conduct the
rule Of combining such appropriations TO "plsces
below the ports Of entry or delivery established by
law He saw clearly, as the authors OF the above
mentioned acts Of 1859 and lS45 did, that there is
no inAexibe natural line Of discrimination between
what is national and what local by means of which