HOW THE GREAT LAKES BECAME "HIGH SEAS," AND THEIR STATUS VIEWED FROM THE STANDPOINT OF INTERNATIONAL LAW

The convention which met in 1787 to frame the Constitution of the United States, embraced two earnest and determined bodies of men. One favored a strong central government; the other opposed any great increase of power over that granted by the Articles of Confederation. With what jealousy the states guarded their rights and with what reluctance they made surrenders to the federal government is common knowledge. The Constitution, as adopted, was a compromise between the factions, and that part relative to admiralty and maritime jurisdiction was the second great compromise between conflicting depositories of power.

The first occurred after a struggle waged for centuries between the admiralty and the common-law courts of England. After the Norman Conquest of England, the Norman admirals claimed exclusive jurisdiction over all maritime matters which arose not only on the open sea but on waters within the body of a county, and the right to try without a jury. A deputy of the admiral sat as the court, being often a nautical man and calling to his aid expert masters of ships. The common-law courts claimed jurisdiction of all matters upon land and water within the body of a county and the right to try with a jury. The conflicting claims at length became subject of compromise and 13 Richard II (ch. 5) declared that the admiralty must

not meddle henceforth of anything done within the realm, but only of a thing done upon a sea.

The 15 Richard II (c. 3), coming two years later, removed all doubt as to what was meant by the "realm of the sea," in ordering that things done within the bodies of counties by land or water, the admirals should not have cognizance, but they shall be tried by the law of the land.1

13 Blackstone 68, 69, 106; 4 Blackstone 268; 2 Bacon's Abridgment 735; Comyn's Digest.

Thus it became and was that admiralty embraced acts committed and things done upon the "high seas and out of the reach of the commonlaw courts of justice. The admiralty never pretended to claim after 15 Richard II, nor could it rightfully exercise jurisdiction except in cases where the service was performed or to be performed on the sea: upon the waters within the ebb and flow of the tide. In brief, this is the way the law of England stood at the time of the adoption of the American Constitution.

The second great compromise occurred, as is stated above, in the Constitutional Convention. It came about when the question was being discussed as to what admiralty and maritime jurisdiction the states were to surrender to the central government.

England established courts of vice admiralty throughout the colonies in 1697 with power to try admiralty and revenue cases without a jury, after a very strenuous resistance had been made, especially by the chartered colonies.2

The Articles of Confederation, in defining the powers of Congress, allowed that

of establishing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining appeals in all cases of captures.3

The duty of hearing appeals in prize cases from the state courts, performed for several years by a standing committee of Congress, had been finally transferred to an admiralty court of appeals, consisting of three judges.

This authority was not exercised without some sharp conflicts with state authorities.*

Such historical facts could be multiplied, but those mentioned are sufficient to illustrate the opposition of the states to inroads upon their admiralty.

The central government was for national purposes and the state governments for municipal purposes. The powers surrendered by the state were those which were either external to themeselves, or

2 Hildreth's History of U. S., vol. II, p. 198.

Art. IX, July 9, 1778.

4 Hildreth's History of U. S., vol. III., p. 404. 1780.

those which, when surrendered, would revert to the mutual advantage of all the states. All powers not clearly surrendered to the central government were left to the states and to the people.

It was in the broadest language that the states gave admiralty jurisdiction to the federal government. The whole judicial power of the federal government is to be found in subdivision 1, section 2, article 3 of the Constitution. Respecting the subject under discussion we quote,

The Judicial power shall extend to all cases in law and equity arising under this Constitution * to all cases of admiralty and maritime jurisdiction.

**

It may therefore be asserted that in 1789, the limits and extent of admiralty and maritime jurisdiction were well established and admitted of no uncertainties. The states gave the federal government jurisdiction over the ocean, which included the high seas, the common highway of nations, waters which were open, free and common to all, and which were not in the jurisdiction or under the control of any foreign power or of any state of the union. It was a matter for national control, being entirely outside, rather than inside the union. This is illustrated by section 8 of the Crimes Act, of April 30, 1790, which limited the punishment of certain enumerated crimes by the United States to those committed

upon the high seas, or in any river, haven, basin or bay out of the jurisdiction of any particular state.

But I apprehend it may fairly be doubted whether the Constitution of the United States meant, by admiralty and maritime jurisdiction, anything more than that jurisdiction which was settled and in practice in this country under the English jurisprudence when the Constitution. was made.5

For fifty-six years after the adoption of the Constitution, there appeared to be no tendency on the part of our eminent jurists nor inclination on the part of Congress to extend the admiralty jurisdiction of the United States.

Let us briefly review a few of the decisions of the United States. Supreme Court, which may be considered as extracts from the na

1 Kent's Com. 377.

tion's log-book. By so doing, we will observe the evolution of admiralty and maritime jurisdiction and ascertain how and why the Great Lakes became high seas.

Mr. Justice Jay, in an early decision, clearly states the extent of admiralty and maritime jurisdiction in these words,

The judicial power of the Union was extended to cases of admiralty and maritime jurisdiction, because, as the seas are the joint property of nations, whose rights and privileges thereto are regulated by the law of nations, and treaties, such cases necessarily belong to national jurisdiction."

When one Bevans was indicted for murder committed on an American ship of war lying at anchor in the main channel of Boston Harbor, in waters where the Massachusetts courts had theretofore exercised jurisdiction, Mr. Justice Marshall held that the United States courts had not jurisdiction of the offense charged."

Two years later, the same learned Justice stated in no uncertain language what were not high seas.

* * *

The jurisdiction of the court depends on the place in which the fact was committed. Is the place described a part of the high seas? If the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the "high seas," if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country. 8

The Crimes Act of March 3, 1825, which was drafted by Mr. Justice Story to correct the defects in the former acts, provided for the punishment of crimes by the United States when committed,

upon the high seas, any arm of the sea, river, haven, creek, basin or bay within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state. (Chapter 65).

Mr. Justice Story, in upholding the decisions of Chief Justice Marshall, speaking for a unanimous court, when a boat was libeled for wages earned upon the Ohio and Missouri Rivers, said,

6 Chisholm v. Georgia, 2 Dall. 419, 475. 1793.

7 United States v. Bevans, 3 Wheat. 336. 1818.

8 United States v. Wiltberger, 5 Wheat. 76, 94. 1820.

92 Story's Life of Story, 402.

In respect to contracts for the hire of seamen, the admiralty never pretended to claim, nor could it rightfully exercise any jurisdiction except in cases where the service was substantially performed on the sea, or upon waters within the ebb and flow of the tide. This is the prescribed limits, which it was not at liberty to transcend.10

In affirming the Thomas Jefferson decision, in a case where a boat was engaged in trade between New Orleans and the interior towns on the Mississippi River and its tributaries, the southern terminus of the voyage being in tide water, Mr. Justice Story said,

The case is not one of a steamboat engaged in maritime trade or navigation. Though in her voyage she may have touched at one terminus of them, her employment has been, substantially on other waters. * * The true test of jurisdiction in all cases of this sort is, whether the vessel be engaged, substantially, in maritime navigation, or in interior navigation and trade, not on tide waters.11

The following year the same learned justice reaffirmed the position theretofore taken by the court and in the course of an opinion, speaking of admiralty jurisdiction, said,

Does it, in cases where it is dependent upon locality, reach beyond high water mark? Our opinion is that in cases purely dependent upon the locality of the act done, it is limited to the sea, and to tide waters, as far as the tide flows, and that it does not reach beyond high water mark. It is the doctrine which has been repeatedly asserted by this court.12

On February 26, 1845, Congress passed an act, which, among other things, provided,

That the District Courts of the United States shall have, possess and exercise the same jurisdiction in matters of contract and tort arising in, upon, and concerning steamboats and other vessels of 20 tons burden and upwards, enrolled and licensed for the coasting trade and at the time employed in business of commerce and navigation between ports and places in different states and territories, upon the lakes and navigable waters connecting said lakes as is now possessed and exercised by the said courts in cases of light steamboats and other vessels employed in navigation and commerce upon the high seas and all tide waters within the admiralty and maritime jurisdiction of the United States.

10 The Thomas Jefferson, 10 Wheat. 428, 429. 1825; Peyroux v. Howard, 7 Pet. 324. 1833.

11 Steamboat Orleans v. Phœbus, 11 Pet. 175, 183. 1837.

12 United States v. Coombs, 12 Pet. 72, 76. 1838.