Lotawanna was, whether the states or the United States are the conservators of maritime law; and we think that the true ground was assumed, in declaring that the maritime law of this country is national and not sectional; and that as a general thing, any alteration or amendment of it must be sought at the hands of the national and not the state legislatures. The regulation of foreign and interstate commerce was vested in the Congress of the United States; and maritime law and admiralty jurisdiction are so closely allied to these subjects that it followed as a necessary corollary that the Constitution should declare (as it did) that the judicial power should "extend to all cases of admiralty and maritime jurisdiction." It also follows, by necessary implication, that the law to be administered by the courts invested with this jurisdiction, must be subject to the paramount supervision of the national legislature. Of course the existing law as it was found to prevail in the states in 1789, when the Constitution was adopted, would stand until altered by Act of Congress. This would be the general rule.. Still, in matters local, as in certain like matters connected with exterior commerce (pilotage, for example), regulations made by the states would be permitted to have effect in the absence of congressional regulation.

It might have seemed to some strict constructionists, perhaps, that as the power to legislate on the subject of maritime law was not expressly given to Congress, it was reserved to the states. But as such a reserved power would have greatly interfered with and impaired the power to regulate external and interstate commerce, and as the jurisdiction over all maritime cases was vested in the Federal judiciary, it seems to be a necessary implication that the maritime law of the country was intended to be subject to the supervision of Federal as opposed to state legislation.

The court very pertinently says: "That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. *** The Constitution must have referred to a system of law co-extensive with, and operating uniformly in, the whole country. It certainly could not have been the intention

to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other, or with foreign states."

But to contend that in extending the judicial power of the General Government to all cases of admiralty and maritime jurisdiction, the Constitution intended to import into our judicial system, and to establish as law, the whole body of maritime law acknowledged by European countries, irrespective of the qualifications with which it had been received and used in the jurisprudence of this country, seems to us the height of absurdity. If such had been the understanding of our ancestors, it would have furnished a very weighty objection to the adoption of the Constitution itself. No one can examine any of the standard treatises or codes of maritime law without having his attention arrested by many subjects which are entirely unknown to the maritime law as we understand and use it. It often consists of ordinances made for the regulation of naval as well as commercial subjects, or only adapted to limited localities. Take, for example, the Ordinance of Louis XIV., made in 1681, which is often referred to as being one of the best institutes of maritime law. Did our ancestors suppose that they were adopting for the United States the whole substance of this statute (for it was nothing else) when they conferred the admiralty jurisdiction upon the Federal courts?

There is a great deal of good maritime law in the Ordinance of 1681, and also in the later as well as older ordinances and codes. of France and other countries; and the principles of the law are beautifully and clearly set forth in the many treatises that have been written; but all these are to be used with judgment and discretion, and with a careful reference to what has been decided as good law in England and this country-two nations of quite as much consequence in the commercial and maritime world as ever Genoa or Venice were, or France, Italy or Spain. We do not underrate the necessity or the great benefit to be derived from the careful study of the maritime law; but we protest against its being thrust upon us in the mass without a due regard to the eclectic process by which the judicial lights of the Anglo-Saxon world. have retained what is good and rejected what is bad or unsuitable to our condition. We know that it is fashionable among a certain

class of lawyers, embracing especially those who have some pretensions to scholarship, to affect a peculiar reverence for the civil law, and those special systems which have sprung from, or are founded upon it; and those who have made the maritime law and admiralty practice a specialty, naturally become enamored of the system to which they have devoted their studies; and not unfrequently manifest irritability and impatience if its authority is questioned or if it is more restricted in its application in this than in some other commercial countries.

We confess a sympathy with this feeling to a certain extent. We like the maritime law and are fond of studying its authorities. We think it embodies juridical principles most just and rational; and are glad to see it observed and applied in all cases where it can be without violating long-established rules of property and the received law of the land. But these we feel bound to observe at all hazards, until they are amended by valid legislation, or modified by the silent operation of changed circumstances and conditions. Whilst always fully alive to the progressive principle founded on the maxims, cessante ratione cessat et ipsa lex, and ratio est vita juris, we deprecate that wild love of theory which would cut loose from all respect for precedent and authority, and introduce entire new systems of jurisprudence unknown to our predecessors and to ourselves except as subjects of curious reading and research for the purpose of aiding our knowledge of comparative jurispru

dence.

Let maritime law be profoundly studied; let its benign principles be faithfully applied to all the cases which our own laws permit and allow to be done; and if it is desirable to apply them still farther, and to modify and amend our own jurisprudence, let it be done in an orderly manner and by that department of the government to which it appertains to make and amend the laws.

RECENT AMERICAN

DECISIONS.

Supreme Court of Errors of Connecticut.

MERRIT MERWIN AND OTHERS v. EZRA WHEELER.

A strip of sandy beach, mainly valuable for its sand as an article of merchandise, was owned in fee by the plaintiffs, and the defendant claimed a prescriptive right to take sand ad libitum therefrom. Held, that evidence that the defendant, as one of the public, and not as incident to an estate in other lands, had taken VOL. XXIII.-76

sand ad libitum from the beach, did not tend to prove an individual prescriptive right.

Such an unlimited right to take the sand would be equivalent to full ownership and inconsistent with the plaintiffs' title in fee.

A prescription, as well as a custom, to be valid must not be unreasonable. The right would be a profit à prendre and not an easement, and such rights must as a general and perhaps universal rule be prescribed for as incident to other lands, for the benefit of or in connection with which the rights are to be exercised.

The word "beach" has no such inflexible meaning that it must denote land between high and low water mark.

It is not necessary that the court should order the parties called before taking the verdict of the jury.

TRESPASS quare clausum fregit. The locus in quo was a sandbeach adjoining the waters of Long Island Sound, and the trespass charged was the taking of sand therefrom. The defence was that the beach was a public one and that the public had from time immemorial taken sand from it, and that the defendant had the right in common with the public.

After the charge the jury retired from the court-room for consultation, and held the case under consideration during the remainder of the day and the day following, until 121⁄2 o'clock P. M., when they came into court, and by their foreman announced that they had not agreed upon a verdict. The court directed them to keep the case under consideration longer, and then adjourned to 2 o'clock P. M. At that hour the jury came into court and returned a verdict for the defendant.

Only one of the plaintiffs attended the trial and proceedings at any time, and that one left the court-house and went to his home at the time of the adjournment at 12 o'clock P. M. Neither of the plaintiffs was present when the jury came into court in the afternoon and rendered their verdict, and the plaintiff who at tended the trial did not come into court till after the jury had rendered their verdict and been discharged from the case and were leaving the court-room. The plaintiffs had but two attorneys in the cause, and one of them was necessarily absent from the court during the day, engaged in the trial of a case in another court, held about twenty rods from the court-house, and was not present that day. The other was in attendance at court at 12 o'clock P. M., when he received a despatch summoning him from court. But he sent by a messenger a notice to the other counsel that he must leave. The messenger did not deliver this notice till after the verdict was rendered and the court adjourned. The

plaintiffs' other counsel would have attended at once if he had received the notice or had knowledge of the absence of his associate. The court had no notice of the absence of the plaintiffs' counsel, or of the absence of the plaintiffs, when the verdict was rendered.

Sturges and Child, for plaintiffs.-1. It was the duty of the court to have had the plaintiffs called before the verdict was taken, and judgment should have been arrested because this was not done: 3 Black. Com. 376; 1 Swift Dig. 773. And contrary also to precedent: The People v. The Mayor's Court of Albany, 1 Wend. 36; Duncomb's Trials per Pais 257; State v. Hurlbut, 1 Root 90.

2. To gain a right adverse to the plaintiffs the defendant must have gained a title by prescription. This right is an individual right, and cannot be proved by a use on the part of the public. Nor would public use give the defendant any claim thereto : Washb. on Easements 80; Perley v. Langley, 7 N. Hamp. 233; Selby v. Robinson, 2 T. R. 758; Washb. on Easements 77, 78, 128, 129; Post v. Pearsall, 22 Wend. 425, 432; Cortelyou v. Van Brunt, 2 Johns. 357; Manion v. Creigh, 37 Conn. 462, 464; Williams v. N. Y. & New Haven R. R. Co., 39 Conn. 509; State v. Wilson, 42 Maine 9, 28; Bethum v. Turner, 1 Greenl. ill.

Beardsley, with whom was Seeley, contrà.

SEYMOUR, C. J.-The land in dispute is a sand-beach, about one hundred and eighty rods in length, four rods wide, and of an average height of four and a half feet above high water. It is connected with the upland on the east by what is called "Beach Lane," and is bounded southerly by Long Island Sound proper, and on the west and north by a cove of salt-water flats, over which the tide rises and falls, but which seems to be private property.

The defendant is sued for entering upon this sand-beach and carting away large quantities of sand, and that he did the acts for which he is sued is admitted. The jury, under the instruction of the court, found that the plaintiffs owned the premises in dispute in fee, and the verdict, which was for the defendant, must have been rendered for him on one of two grounds; either, first, that the public had by long-continued user acquired the right to take