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The Plymouth/Opinion of the Court

THE steam-propeller Falcon, employed by its owners in navigating our great northern lakes, anchored beside the wharf of Hough & Kershaw, in Chicago River; 'navigable water.' Upon the wharf large packing-houses were built, and these, at the time, were filled with valuable stores. Owing to the negligence of those in charge of the Falcon, the vessel took fire; and the flames, stretching themselves to the wharf and packing-houses, set these last on fire, which with their stores were wholly consumed. Hough & Kershaw filed, accordingly, in the District Court for the Northern District of Illinois, a libel in admiralty, for cause of damage, civil and maritime, against the owners of the Falcon, and attached a vessel of theirs called the Plymouth.

The District Court, regarding the case as not one for the Admiralty, dismissed the libel for want of jurisdiction. The Circuit Court, on appeal, considered that the dismissal was rightly made. The case was now here for review.

It is necessary to say that, by act of Congress, the District Courts of the United States possess admiralty jurisdiction 'in matters of contract and tort arising in, upon, or concerning steamboats or other vessels,' on our great northern lakes, the same as they do in cases of the like steamboats, and other vessels employed in navigation and commerce on the high seas and tide-waters.

Mr. A. W. Arrington, in favor of the jurisdiction:

The question is, has a court of admiralty, jurisdiction to decree compensation for the damage done by the Falcon?

The question, as respects instance at least, is one primoe impressionis. We can adduce no precedent identical in its circumstances. Two reasons exist for this:

1. Until a recent period the admiralty jurisdiction was repressed and hindered from attaining its appropriate extension by the jealous interference of the common law courts, in England, and by the servile adoption of the English rule, without comment or qualification, in America. That rule excluded the jurisdiction, not only from all waters unaffected by the ebb and flow of the tide, but even from tide-waters within the body of a county. Hence, during the prevalence of such a rule, no case like the present could arise; because, ships could not be the means of setting fire to wharves or houses, without penetrating the body of some county, and then, ipso facto, admiralty jurisdiction would be excluded by the English rule.

2. The local distance betwixt the sites of houses and the possible anchorage of vessels, in most parts of the world, prevents, ex necessitate, the existence of an occurrence like the one in controversy. It is only at Constantinople, in the Golden Horn; in the harbor of Chicago; and in a few other favored ports of the world, that, in the beautiful language of Gibbon, 'ships may rest their powers against the houses, while their sterns are floating in the water.'

But the objection that this case is the first of its kind, must be pronounced invalid, in the light of leading decisions of this court. The same objection was urged, with all the weight which learning and eloquence could give it, against those very adjudications which have now become fixed in admiralty law, and was urged in vain; while, at the same time, those adjudications overruled the supreme authority of prior cases, and cases seemingly established among the most permanent doctrines of Federal jurisprudence. Thus, in the Thomas Jefferson, in 1825, this court held that the admiralty jurisdiction was confined 'to the sea, or waters within the ebb and flow of the tide.'

In Peyroux v. Howard this doctrine of the former case was approved; the court deciding that if one terminus of a voyage was above the flow of tide-water, the mere fact precluded the exercise of jurisdiction. The law of these cases was followed by all the district and circuit courts. The firmness of an enduring principle seemed to have been obtained. In truth, the structure wanted but one thing to insure its permanence,-rational accordance with the spirit of the age and nation, as developed by the characteristics of the physical geography of America.

In 1848, in Waring v. Clarke, the Supreme Court took its first step in a path divergent from the via trita of the ancient English rule, by adjudging that admiralty had jurisdiction in a case of collision, though happening infra corpus comitatus. This was the germination of a new idea. But the full development of reason was reserved for the year 1851, when, in the Genesee Chief v. Fitzhugh, this same tribunal shook off the yoke of English authority forever, by declaring that 'tide-water' constituted no proper test of admiralty jurisdiction. That case has been succeeded by a series of judgments, which established the true criterion of jurisdiction as being 'navigable water' per se, in contradistinction to water not navigable, and to nothing else. Now, the case of the Genesee Chief was the first of its kind. There had been nothing like it, either in England or America, since the days of Lord Coke. It was not only a novelty, but one in clear contradiction of all previous authority.

The objection, therefore, has been overruled in advance.

It must be noted, in limine, that the present case, although new in the instance, is not so in principle. On the contrary, the inference we seek to deduce is the logical result of doctrines as old as the common law; and is confirmed, besides, by the analogy of adjudged cases.

First. Let the court consider the nature and characteristics of the two things concerned in the case of damage,-the object injured, and the agent causing the injury.

I. The object, or part of the object, injured-the wharf-was unquestionably a maritime thing. A wharf is the necessary terminus, a quo and ad quem, of every voyage, in certain lines of trade; and becomes thus indispensable to commerce and navigation. It is an instrument of navigation. And it has been decided that the lien of a wharfinger appertains to the jurisdiction of the admiralty. It has even been adjudged that the owner of a shipyard, who employs a railway cradle and other fixtures for hauling vessels out of the water, can sue in the admiralty for his services, though the repairing may be done by other parties.

II. The agent producing the damage, the vessel which communicated fire to the wharf, was a maritime thing. That fact is conceded.

Hence, since both the object and the agent were maritime things, and within the admiralty jurisdiction, would it not shock common sense to exclude from that jurisdiction the injury received by one from the other, in a case of manifest and admitted tort?

III. The locality was maritime. The ship, the maritime agent, in the very act of committing the injury, was moored in a maritime place, namely: in 'navigable water.' And this court has determined that 'navigable water' is the test of admiralty jurisdiction, in cases of tort.

IV. Another legal principle, in connection with the preceding, covers the case.

The principle is this: That the incident, or that which is accessary, always follows, or is drawn to, the principal thing in a given combination of circumstances. Or, as the maxim is announced by Lord Coke, 'accessorium non ducit set sequitur suum principale.'

The maxim has been applied to the admiralty jurisdiction in cases reported by Croke, Levinz, Comberback, Saunders, and others, and always to this effect: 'That when the principal cause is within the jurisdiction, there is also jurisdiction over the incidents.'

In a case in Siderfin a suit was sustained in the admiralty for beaconage, of a beacon standing on a rock in the sea, for the reason that the admiral had jurisdiction of beacons, although the rock was part of the earth and appertained to the inheritance.

All these are common law cases, running back, too, to the cradle of the system; and they all concur to establish the point ruled, at a later period, in Le Caux v. Eden: 'That when the admiralty has jurisdiction of the original matter, it ought to have jurisdiction of everything incidental.'

Hence, the question is, what was the principal matter or thing in this case of damage? What was the original, or, in the language of the schoolmen, the efficient, cause of the injury? The answer is: The original cause was the ship; or, rather, the ship in action, and performing a wrongful deed to the damage of others. The composition or chain of causes and effects is simple, being constituted by six links:

1. The ship, a maritime thing, and within the admiralty jurisdiction.

2. The inception of the fire, through the negligence of the master and crew, a maritime wrong, and also clearly within the jurisdiction.

3. The wharf, a maritime thing, and alike within the jurisdiction.

4. The communication of the fire to the wharf.

5. The communication of the fire to the packing-house.

6. The destruction of both the wharf and the packing-house.

Such was the series implexa causarum, in logical as in chronological order. The ship, or the tortious act of the ship, we repeat, was 'the original matter, the principal thing,' the efficient cause, in the case of damage; and the destruction which followed, in natural sequence, was the incident. If this be so, then, according to all the authorities, the whole case is within the admiralty jurisdiction.

This conclusion, too, is in harmony with scientific theory. It is a law of positive philosophy, that every action in nature derives its specific character and denomination from the agent or principal cause, and not from the object or mere passive thing affected by the action. In a philosophical sense an action is a mere abstract idea, and, in the concrete, means nothing more than an agent acting in a particular manner.

Then, if a tort be perpetrated by a maritime agent, through the instrumentality of a maritime thing, and in a maritime place, must not the tort itself be maritime? To hold otherwise would not only render the law discordant with the beauty of scientific thought, but absurd to common apprehension.

Finally, under this head, it has been determined by this court, that it is sufficient for the agent or principal thing to be maritime, to bring the case within the jurisdiction of the admiralty, although the other thing concerned did not appertain to such jurisdiction. In Fretz v. Bull it was decided that the jurisdiction attached as against a steamer, by the fault of which a flatboat (of itself, not the subject of admiralty jurisdiction), was sunk in the Mississippi.

Second. This case is a mixed one; and in 'mixed cases,' arising partly on land and partly at sea, or upon 'navigable waters,' admiralty has jurisdiction. Here the wrongful action of the maritime agent commenced upon 'navigable water,' and was continued to its consummation upon the shore.

Third. The same inference is supported by the analogy of prize cases, in which, even in England, 'the jurisdiction depends, not on locality, but on the subject-matter.' The reason of the difference between the respective jurisdictions of the prize and instance courts, in England, arose from the fact that the judges of common law never attempted to restrain the jurisdiction of the admiralty prize court, as to the land; nor to control it by the principle of locality.

Fourth. We claim no more, in this case, than belonged to the admiralty before the jealousy of the common law courts had curtailed its jurisdiction. This, in the language of the commissions to the admiralty judges, comprised 'all injuries done upon public rivers,' and 'upon the shores and banks adjoining them.' In the time of the Commonwealth, the jurisdiction included 'all cases of prejudice to the banks of navigable rivers,' or to 'the docks, wharves, quays,' or anything whereby shipping may be endangered.

Fifth. The jurisdiction of our colonial vice-admiralty courts was equally extensive, including 'all trespasses and injuries, between owners of ships and other persons, done upon the shores of public rivers.'

Sixth. The general maritime law of continental Europe regards only the character of the transaction, and therefore extends to all cases of service, contract, tort, or accident, 'relating to ships, shipping, and marine commerce.'

Can a reason be assigned why the jurisdiction of the American admiralty should not be as broad and beneficial as that of any system of cultivated justice? We are not bound in fetters, by the constitution, to the English rule. If we breack the constitution by departing from the English rule, we have already broken it into atoms. We broke it when we suffered the jurisdiction to penetrate into the body of a county. So we broke it when the limit of tide-water was discarded, with the sovereign arbitrament of the moon. And we broke it again, when admiralty jurisdiction was applied to revenue cases.

On the other side, there is but one thing to be said, namely, 'that in cases of tort, the jurisdiction depends on the locality of the act done, and that it must be done on navigable water.' This is properly denominated the 'rule of locality.'

Now we submit that a bare inspection of the terms comprising the rule shows it to be amgiguous. It may mean that the agent acting must be on navigable water, or that the object must be on navigable water; or that both the agent acting and object acted upon must be on navigable water, and that the total effect must be there too.

But no case has ever so defined the rule of locality as to restrict it to the two latter suppositions. No lawyer ever intimated that both the agent and object must be on navigable water at the time when a tort is committed.

The truth is, that all general rules, all definitions in sciences, other than the mathematical, are what logicians call dicta secundum quid; in other words, are postulated with a qualification. It is only in the strict mathematics that the subject can take the place of the predicate, and vice vers a, by the change of simple conversion. And especially all legal propositions are secundum quid with respect to the cases upon which they are founded.

Let us then see what are the cases adduced in support of the rule of locality.

In Thomas v. Lane, a circuit case, the libel was for a tort committed by the master of a vessel upon a mariner. And it was decided that the admiralty had no jurisdiction, because the libel did not allege the trespasses to have been committed on tide-water; while a part of the charge, to wit, the imprisonment, was expressly stated to have been on shore, in the port of Havana. In delivering the opinion, Story, J., said: 'In regard to torts, I have always understood that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never, I believe, deliberately claimed to have, any jurisdiction over torts, except such as are maritime; that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.'

Here we have the 'locality of the act' as the test of jurisdiction, and the circumstance that such act must 'be committed on waters within the ebb and flow of the tide,' as the explication of the test.

But what were the facts of the case which called for the application of the rule? The case was, that both the agent of the wrong and the object that suffered it were on the shore. The imprisonment was on the shore. The entire act of causation, as well as the entire effect, was on the shore.

If the master, in Thomas v. Lane, had stood on the deck of his ship while the mariner was chained on the adjacent shore, and had scourged his victim with a long whip, the case would be analogous to ours. But, in such a case, would any court of admiralty in the civilized world have refused to entertain jurisdiction?

But what is the locality of an act? The term needs a definition, and this court must supply the need; for you will search the books in vain for anything approximating the desideratum. Where, then, is the locality in question? Is it where the agent acts? Or is it where the object is affected? According to science and common sense, it is both conjointly, and neither exclusively. The locality of an act embraces the entire space occupied by the agent and the object, and the spatial distance passed over by the causal influence in accomplishing the effect. Who shall declare the locality of a battle? Is it at the spot where the cannon stands? Or at the spot at which the ball that issues from it strikes its victim? In neither. The locality is the entire field. Where is the locality of the sunbeam? In the mighty orb from which it parts? or in the boundless track through which it passes? or on the earth which it animates with life, and health, and warmth? In no one, assuredly, alone. All are but parts of one stupendous whole; spreading undivided, and which operates unspent.

In United States v. Coombs, the rule of locality was announced, by this court, with a qualification. The indictment was for stealing a quantity of merchandise belonging to a ship cast away on the shore of New York. The goods were taken above high-water mark on the beach in Queen's County. The indictment was sustained under the constitutional power to regulate commerce. But the court denied that it could be sustained as falling within the admiralty jurisdiction. Of course, they denied that; because both the agent and object were on the shore. The thief stole the goods on the shore above high-water mark. Story, J., delivering the opinion, said: 'Our opinion is, that in cases purely dependent upon the locality of the act done, admiralty jurisdiction 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. Mixed cases may arise, and, indeed, often do arise, where the acts and services done are of a mixed nature; as where salvage services are performed partly on tide-waters and partly on the shore, for the preservation of the property saved; in which the admiralty has constantly exercised jurisdiction to the extent of decreeing salvage.' And he adds: 'If the libel is founded on one single continued act, which was principally on the sea, though a part of it was upon the land, as if the mast of a ship be taken upon the sea, though it be afterwards brought ashore, no prohibition lies.'

Now, as we have already submitted, ours is a mixed case. The efficient cause was on navigable water. The negligence was there. The act of wrong was committed there. Whatever power for injury the ship possessed originated there, and was exerted there. The ship did not go on shore, the master and mariners did not go on shore, to commit the offence. The principal thing, the act of negligence, the destroying agency, was on navigable water, was within the admiralty jurisdiction; and only the incidental effect was produced on the shore.

United States v. Davis, a case like Thomas v. Lane, of circuit ruling only, and not authoritative therefore, may be thought to be opposed to our view. The facts were these A gun was fired on an American ship lying in the harbor of one of the Society Islands, by which a person on board a schooner belonging to the natives was killed. 'Held, that the act was, in contemplation of law, done on board the foreign schooner where the shot took effect; and that jurisdiction of it belonged to the foreign government, and not to the courts of the United States, under the Crimes Act of 1790.'

A similar case is that of United States v. McGill. The facts were, that the prisoner, the mate on the brig Rover, in the harbor of Cape Francois, gave the deceased a mortal stroke with a piece of wood. The latter was carried on shore alive, and died the following day. The prisoner's counsel made the point, that both the death and blow must happen on the high seas, to give the court jurisdiction under the act of Congress. The court so decided, for the reason that the act of Congress applied only to murder on the high seas, and because the term murder, ex vi termini, implied death.

Both these were criminal cases, and the decisions are in accordance with the technical distinctions of the ancient common law. For under that, by a strange absurdity, 'if an offence was commenced in one county, and consummated in another, the venue could be laid in neither, and the offender went altogether unpunished.' And so if the blow was given on the land, and the death happened on the sea, and vice vers a, neither the courts of common law, nor the admiral's court had any jurisdiction of the crime.

This ridiculous non sequitur resulted, according to Blackstone, from the technical formula prescribed for the grand jury, since they were only to inquire pro corpore comitat us. Thus, if the blow happened in county A., the grand jury of county B. could not inquire of that; and if the death happened in B., the grand jury of A. could not inquire of that. And the same logic applied with equal force to the land and sea.

This species of reasoning, or rather, this reductio ad absurdum of the reasoning process itself, was in perfect accord with the philosophy of the age. It was the age of the scholastic philosophy-an age of dicta and contradicta-an age when the highest human ingenuity was perverted to inquiries respecting the eternal puzzles that lie beneath the basis of all finite knowledge; when the mightiest minds sought to postulate the difference between entities and quiddities; when the all-engrossing questions were, whether angels existed in or out of space? And, if in space, how many angels could dance on the point of a needle? And whether the Deity loved an actual entity of the lowest grade better than a possible entity of the highest?

This was the philosophy in vogue when the common law distinctions as to venue were fabricated. And the law always derives the methods of its logic from the philosophical character of the time when it is elaborated.

The reasoning of the early English courts on the subject of venue was nearly akin to the old Eleatic demonstration as to the impossibility of motion. 'If a body moves at all,' argued Zeno, 'it must either move where it is, or where it is not: but it cannot move where it is; and surely it cannot move where it is not; ergo, it cannot move at all.' And the only answer to the logic that all antiquity could make, was given by Diogenes, who got out of his tub, and walked.

By the same process of reasoning that the English courts employed to exclude the jurisdiction when the blow was struck in one county, and the death happened in another, it is easy to prove that the man was not killed at all. Thus, if this man was killed at all, he must have been killed at some particular place: but he was not killed at any particular place; therefore, he was not killed at all. Or thus: If a man is killed at all, he must be either killed on the land or sea; but this man was not killed on the land, because the mortal blow was not given there, but on the sea; and he was not killed on the sea, because he did not die there, but on the land: therefore, he was not killed at all. There you have as good a demonstration as the schoolmen ever uttered.

And that is the precise argument, mutatis mutandis, that is urged against the admiralty jurisdiction in the present case.

But is this a case, is this an age, is this the court, for the prevalence of such parodies on all scientific ratiocination? Contrariwise, is not this rather a case for the exercise of that kind of logic which appertains more to the enlarged policy of the most enlightened and liberal statesmanship than to the technical quibbles of puerile and perverted dialectics? For, whatever reasons justify the admiralty jurisdiction in any case, must justify it in this. Upon what reason is the jurisdiction founded? Is it the necessity for process as speedy as the hoisting of the sails; that shall go at once velis levatis, as Lord Mansfield worded it? That reason exists in such a case as this. Or is it the necessity for a tribunal thoroughly versed in maritime laws and usages? That reason exists here. And as we have shown, there is nothing opposed to the jurisdiction in this case, but a false and preposterous construction of the rule of locality, and which has not the sanction of a single authoritative case.

We do not ask the court to amplify the jurisdiction of the admiral; we but ask it to deduce from his original jurisdiction that which is logically and consequentially involved. If any continent exists entitled to have the jurisdiction amplified to its full extent it is ours,-a continent which, by distinction from all others, may be called the continent of waters,-a continent covered by mighty rivers and majestic lakes. Though not subjects of admiralty jurisdiction, as once understood here and as still understood in England, we have been compelled to bring these under such control. It is fitting that the further development should come from the region of these great waters; which has thus already cast the rich hues of its western sunlight upon the east. The necessity of a power to administer justice speedily and surely is great; and will become greater with the incalculable expansion of trade and commerce on the western lakes and rivers. The vessel which has done the wrong speeds away, and with the winds and currents is carried thousands of miles from the scene of the wrong she has done. Why send the injured suitor to a distant State in order to have redress?

The ultimate question reverts. Will you be fettered in the freedom of your judicial action by a fiction of the scholastic ages, or yield to the force of a present reality? Will you follow the example of the most enlightened continental jurisprudence, and which is in harmony with the physical geography of this grand new world; or will you cling with servile submission to the petty precedents of little England, whose people, beyond all people, are individual and local in their views, and in more senses than one remain the penitus toto divisos orbe Britannos?

Mr. Spalding, contra.

Mr. Justice NELSON delivered the opinion of the court:

The court below dismissed the libel for want of jurisdiction; and that question is the only one that has been argued in this court.

It will be observed, that the entire damage complained of by the libellants, as proceeding from the negligence of the master and crew, and for which the owners of the vessel are sought to be charged, occurred, not on the water, but on the land. The origin of the wrong was on the water, but the substance and consummation of the injury on land. It is admitted by all the authorities, that the jurisdiction of the admiralty over marine torts depends upon locality-the high seas, or other navigable waters within admiralty cognizance; and, being so dependent upon locality, the jurisdiction is limited to the sea or navigable waters not extending beyond high-water mark.

In the case of Thomas v. Lane, Mr. Justice Story, in a case where the imprisonment was stated in the libel to be on shore, observed: 'In regard to torts, I have always understood that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never, I believe, deliberately claimed to have, any jurisdiction over torts, except such as are maritime torts; that is, torts upon the high seas, or on waters within the ebb and flow of the tide.' Since the case of the Genesee Chief, navigable waters may be substituted for tide waters. This view of the jurisdiction over maritime torts has not been denied.

But it has been strongly argued that this is a mixed case, the tort having been committed partly on water and partly on land; and that, as the origin of the wrong was on the water, in other words, as the wrong began on the water (where the admiralty possesses jurisdiction), it should draw after it all the consequences resulting from the act. These mixed cases, however, will be found, not cases of tort, but of contract, which do not depend altogether upon locality as the test of jurisdiction, such as contracts of material-men, for supplies, charter-parties, and the like. These cases depend upon the nature and subject-matter of the contract, whether a maritime contract, and the service a maritime service to be performed upon the sea, or other navigable waters, though made upon land. The cases of torts to be found in the admiralty, as belonging to this class, hardly partake of the character of mixed cases, or have, at most, but a very remote resemblance.

They are cases of personal wrongs, which commenced on the land; such as improperly enticing a minor on board a ship and there exercising unlawful authority over him. The substance and consummation of the wrong were on board the vessel-on the high seas, or navigable waters-and the injury complete within admiralty cognizance. It was the tortious acts on board the vessel to which the jurisdiction attached.

This class of cases may well be referred to as illustrating the true meaning of the rule of locality in cases of marine torts, namely, that the wrong and injury complained of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction. In other words the cause of damage, in technical language, whatever else attended it, must have been there complete.

Much stress has been given to the fact, by the learned counsel who would support the jurisdiction, in his argument, that the vessel which communicated the fire to the wharf and buildings, was a maritime instrument, or agent, and, hence, characterized the nature of the tort. In other words, that this characterized it as a maritime tort, and, of course, of admiralty cognizance.

But this, we think, is a misapprehension. The owner of a vessel is liable for injuries done to third persons or property by the negligence or malfeasance of the master and crew while in the discharge of their duties and acting within the scope of their authority. It is upon this principle that the defendants are liable, if at all, to the libellants for the damages sustained. The circumstance that the agents were in the employment of the owners on board the vessel, and that the negligence occurred, while so employed, and which occasioned the damage, gives to the libellants the right of action. But, if they had been employed upon any other structure in the river-on a raft, or floating platform, for work, on the river, and the fire had been communicated to the wharf and buildings on account of their negligence while so engaged, the right of action would have been the same. The jurisdiction of the admiralty over maritime torts does not depend upon the wrong having been committed on board the vessel, but upon its having been committed upon the high seas or other navigable waters.

A trespass on board of a vessel, or by the vessel itself, above tide-water, when that was the limit of jurisdiction, was not of admiralty cognizance. The reason was, that it was not committed with the locality that gave the jurisdiction. The vessel itself was unimportant. The fact, therefore, of its having taken place on board the propeller Falcon, in the present case, is not an element that imparts any peculiar character to the nature of the tort complained of. This is so in cases of collision, in which the offending vessel may be attached and proceeded against as one of the remedies for the wrong done. The jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the locality the high seas, or navigable waters where it occurred. Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.

We can give, therefore, no particular weight or influence to the consideration that the injury in the present case originated from the negligence of the servants of the respondents on board of a vessel, except as evidence that it originated on navigable waters-the Chicago River; and, as we have seen, the simple fact that it originated there, but, the whole damage done upon land, the cause of action not being complete on navigable waters, affords no ground for the exercise of the admiralty jurisdiction. The negligence, of itself, furnishes no cause of action; it is damnum absque injuri a. The case is not distinguishable from that of a person standing on a vessel, or on any other support in the river, and sending a rocket or torpedo into the city, by means of which buildings were set on fire and destroyed. That would be a direct act of trespass; but quite as efficient a cause of damage, as if the fire had proceeded from negligence. Could the admiralty take jurisdiction? We suppose the strongest advocate for this jurisdiction would hardly contend for it. Yet, the origin of the trespass is upon navigable waters, which are within its cognizance. The answer is, as already given: the whole, or at least the substantial cause of action, arising out of the wrong, must be complete within the locality upon which the jurisdiction depends-on the high seas or navigable waters.

The learned counsel, who argued this case for the appellants with great care and research, admitted that it was one of first impression; that he could find no case in the books like it. The reason is apparent, for it is outside the acknowledged limit of admiralty cognizance over marine torts, among which it has been sought to be classed. The remedy for the injury belongs to the courts of common law.

DECREE AFFIRMED.

title: The Plymouth/Opinion of the Court


text: Talk:The Plymouth/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:The Plymouth/Opinion of the Court


text:
The Kimball

THE owner of the Kimball chartered her, in July, 1856, to a Boston firm, for a round voyage from New York to Melbourne, Calcutta, and Boston. The charter-party, in most of its provisions, was in the usual form. A portion of the charter-money was to be paid, and was paid, before or during the voyage; 'balance,' the instrument proceeded, 'payable, one-half in five and one-half in ten days, after discharge of homeward cargo.'

The charter-party contained, also, a clause that the cargo should 'be received and delivered within reach of the ship's tackles at the ports of lading and discharging,' and concluded with the not unusual provision, that for the performance of its covenants the parties bound themselves-the party of the first part, the vessel, her freight, tackle, and appurtenances; the party of the second, the freight and merchandise to be laden aboard-each to the other, in the penal sum of $40,000.

While the ship was yet at sea, the charterers, at the owner's request, gave him their notes for $10,000. They were drawn so as to be payable near the time when it was expected that the ship would arrive; and it appeared by the testimony of the broker who had been concerned in the matter, that they were given for the accommodation of the owner, and were to be held over or renewed in case they fell due before the ship reached home. The owner, in a receipt for the notes, stated that he had received them 'on account of the charter,' and that it was 'understood that this amount was to be insured by the charterers and charged to the owners of the ship.' The owner used the notes, and obtained money on one of them at a bank where he had an account. The charterers effected insurance on the $10,000, in pursuance of the agreement. The vessel arrived about five weeks before the notes by their terms fell due.

Shortly before the vessel arrived home, and before the notes fell due, the charterers failed. The owner immediately tendered them back their notes, but they would not receive them.

By the terms of the charter-party the cargo was to be deliberable to the consignees, 'they paying freight as per charter-party,' and after the arrival of the vessel, the owners, asserting a lien on the cargo for the unpaid money, and refusing to credit as payment on account, the notes for $10,000, filed a libel in the District Court for Massachusetts to enforce the lien. This libel was filed on the 18th March, 1858; the notes, which were produced and tendered in court, having fallen due on the 3d preceding. On appeal to this court from the Circuit Court, where the matter went on appeal from the District Court, two questions arose.

1. Whether the ordinary lien of the ship-owner was displaced by anything in the charter-party?

2. Whether the notes of the charterers were to be considered as payment?

The Circuit Court, reversing the District Court, had held negatively on both points.

Mr. Thaxter for the owners of the cargo, appellants:

I. In Raymond v. Tyson it is said, by Wayne, J., that the lien of the ship-owner for freight or hire 'may be considered as having been waived without express words to that effect, if there are stipulations in the charter-party inconsistent with the exercise of the lien, or where it can be fairly inferred that the owner meant to trust to the personal responsibility of the charterer.'

Neither will the subsequent insolvency of the charterer restore a lien once waived or lost. In Alsager v. The St. Katherine Dock Co., a case like this, where insolvency had given rise to the litigation, Chief Baron Pollock said, 'Did the owner intend to abandon his lien and receive payment of the freight two months after the inward report, or did he mean to retain his lien, and keep his right to refuse delivery of the cargo until the freight was paid? If the ship-owner could not have refused to deliver the goods provided the charterer had continued solvent, he cannot maintain that claim now.'

Now, we say that the stipulation in the charter, that the cargo should be delivered within reach of the ship's taekle, is inconsistent with the right of retaining it to enforce the lien set up; which retention involves the unloading and storing of the cargo.

Independently of this stipulation, the credit given for the payment of the balance of the charter-money after discharge at the home port, is inconsistent with the existence of a lien and the discharge of the ship and the delivery of the cargo according to the usual and customary manner. This clause giving this credit was inserted for the benefit of the charterers. It is not merely a formal part of the charter, but is a living, active provision, having reference to the contract intended to be made, and such a construction must be given to the charter as shall make this clause operate as a beneficial credit.

Again: we think that by the true construction of this charter, the parties intended that the cargo should be discharged and delivered in the usual and customary manner. If, then, the retention of the cargo for the purpose of retaining a lien thereon until the expiration of the credit, will prevent the discharge and delivery of the cargo in the usual and customary way, such retention cannot be authorized. The usual and customary course is to give notice to the consignee or owner of the goods when his goods are to be discharged, and then to discharge them upon the wharf, when the liability of the carrier as such ceases, and the goods are at the risk of the owner. But to give full effect to the credit specified, and preserve the lien, the master must have discharged his cargo and stored it, no matter how many different subfreighters there may have been.

The printed clause at the end of the charter-party,-a clause found in nearly all charter-parties-which agrees to bind the freight and merchandise to be laden on board to a performance of the contract,-has no application to this part of the contract. As was said by Baron Bramwell, in Foster v. Colby,3 'The true meaning of that clause is, that the owner is to have a lien so far as a lien is possible.' Baron Watson, in the same case, said, in reply to the argument that this clause gave an absolute lien on the cargo, 'It is impossible there can be a lien for money not due.' And again, 'If the vessel is discharged abroad, the freight is 'to be paid in cash on right delivery of the cargo.' The clause giving a lien would attach in that case. The true meaning is, that wherever there can be a lien the ship-owner is to have it,' &c. So in this case, the clause giving a lien would attach to the outward freight and to demurrage.

The cases of The Volunteer, and of Certain Logs of Mahogany, -circuit rulings of the late Story, J.,-might be supposed to militate with our view. But they do not. The former is distinguishable from this. There the freight was payable 'within ten days after the schooner's return to Boston.' It appeared by the duty-collection list that the time for entering at the custom-house was such that Story, J., found 'that an unlivery could be rightfully postponed beyond the ten days after the return of the ship, when by the terms of the charter-party the freight would become due.'

The case of Certain Logs of Mahogany is peculiar, and can well stand upon the fact that it was agreed that the cargo should be subject to the lien for freight, notwithstanding the provision making the freight payable in five days after her discharge.

II. As respects the notes. We suppose it to be well settled where an advance is made upon freight or charter-money, in money or notes, with an agreement that the advance is to be insured for or by the shipper or charterer, that such advance shall be treated as a pre-payment of freight, at the risk of the shipper, which, to the extent of it, discharges the lien.

And whatever may be the doctrine of particular States as to the effect of taking a promissory note on the original debt, yet it is equally true that it will be treated by all courts, everywhere, as payment, where it appears that the parties so intended it: as we think it was intended here.

Whether these notes are to be considered as payment of not, it is well settled that no action could be brought on the original debt until their maturity, and the taking of them was tantamount to an agreement on the part of the owner to give the charterers the credit expressed on their face for that amount of the charter-money. The notes were not due when the ship arrived and the cargo became deliverable; nor till five weeks afterwards.

Mr. B. R. Curtis, who argued the case fully on principle and authorities, contra.

Mr. Justice FIELD delivered the opinion of the court:

title: The Kimball


text: Talk:The Kimball

title: Talk:The Kimball


text:
The Kimball/Opinion of the Court

Two questions are presented for determination in this case: first, whether the lien of the owner of the ship upon the cargo for the freight was waived or displaced by the stipulations of the charter-party; and, second, whether the notes given for a portion of the charter-money constituted payment of the same.

It is admitted that the lien of the owner of a ship upon its cargo for freight is favored by the courts; and will not be displaced, so long as the ship-owner retains possession of the cargo, except by express contract, or by stipulations in the charter-party inconsistent with its exercise. The position of the appellants is, that there are such inconsistent stipulations in the charter-party in this case; and two clauses are mentioned in support of this position,-the clause requiring the delivery of the cargo within reach of the ship's tackle, and the clause providing that the balance of the charter-money remaining unpaid on the termination of the homeward voyage shall be 'payable one-half in five and one-half in ten days after discharge' of the cargo.

There is nothing in these provisions inconsistent with the right of the owner to retain the cargo for the preservation of his lien. The first clause only designates the place where the delivery must be had, which, in this case, is the wharf at which the ship may be lying. The second clause only prescribes the period in which payment must be made after the discharge of the cargo. The discharge mentioned does not import a delivery of the cargo; it only imports its unlading from the ship. Such is the obvious meaning of the term, and so it had been judicially held. The clause was intended for the benefit of the charterers. It gives them ample time to examine the goods, and ascertain their condition, and decide whether they will take them and pay the freight, or decline to receive them. They can waive it and take the cargo short of the period designated, if it be ready for delivery.

The cases cited by the appellants do not support their position. In Foster v. Colby, the charter-party provided that the remainder due for freight should be paid 'in cash two months from the vessel's report inwards at London or Liverpool, and after right delivery of the cargo.' The stipulation for the payment after the delivery of the cargo was inconsistent with the existence of a lien. In Alsager v. St. Katherine Dock Co., the charter-party contained two clauses, one providing for the delivery of the cargo on payment of the freight at a stipulated price, and the other providing for the payment of the freight 'two months after the vessel's inward report at the custom-house.' The court reconciled these clauses by annexing to the first the qualification as to the time of payment contained in the second, and read them together as requiring payment two months after delivery. The payment being thus considered to be irrespective of the delivery, it followed that no lien existed.

There is no doubt that a credit for the freight may be given for so great a period as to justify, in the absence of any provision for the delivery of the cargo, the inference that the ship-owner intended to waive his right to a lien, and to look solely to the personal responsibility of the charterers. It is sufficient, however, that there is no such credit given in the present case. Here the period allowed is only a reasonable one for examining the condition of the cargo.

But if there were any doubt as to the construction of the provision for the credit, it is dispelled by the concluding clause of the charter-party. By that clause the owner binds the vessel, and the charterers bind the cargo for the performance of all their respective covenants, of which the payment of the charter-money is one. Though the law, in the absence of any stipulations on the subject, ordinarily implies this mutual security in every contract of affreightment, yet its distinct statement in the charter-party shows that the attention of the parties was called to it, and is an important circumstance to be considered in the construction of other stipulations of the instrument respecting the payment of the freight.

In the case of the Schooner Volunteer, Mr. Justice Story had occasion to consider the effect of a similar clause in a charter-party. In that case the charterers had agreed to pay for the freight 'within ten days after the return of the vessel to Boston,' or in case of loss after she was last heard from; and the question was, whether the allowance of the ten days for the payment of the fright amounted to a waiver of the lien? The learned judge held that it did not, and in this connection considered the effect of the clause named. After an extended examination of the authorities, he came to the conclusion that it contained an express contract for a lien; and if it did not, still that it contained enough to repel any notion that the delivery of the goods should precede the payment of the freight, or that the lien of the maritime law for freight was intended to be waived by the parties.

The second question for determination is, whether the notes given for a portion of the charter-money constituted payment of the same?

The notes were given before the termination of the voyage, and, consequently, before the balance of the charter-money became due. Treating them as an advance of a portion of the freight, they could be recovered back, or their amount, if paid, if the vessel did not arrive. Freight being the compensation for the carriage of goods, if paid in advance, is in all cases, unless there is a special agreement to the contrary, to be refunded, if from any cause not attributable to the shipper the goods be not carried. And there was no such special agreement in this case. The notes were drawn so as to mature near the time of the anticipated arrival of the ship, and according to the statement of the broker who made the arrangement, they were given for the accommodation of the ship-owner, and were to be held over or renewed in case they fell due before the arrival. This statement is consistent with the nature of the transaction, and is sufficient to repel any presumption, under the law of Massachusetts, that the notes were taken in discharge or payment of the claim for the charter-money. The presumption which prevails in that State, that a promissory note extinguishes the debt or claim for which it is given, may be repelled by any circumstances showing that such was not the intention of the parties.

By the general commercial law, as well of England as of the United States, a promissory note does not discharge the debt for which it is given unless such be the express agreement of the parties; it only operates to extend until its maturity the period for the payment of the debt. The creditor may return the note when dishonored, and proceed upon the original debt. The acceptance of the note is considered as accompanied with the condition of its payment. Thus it was said, as long ago as the time of Lord Holt, that 'a bill shall never go in discharge of a precedent debt, except it be part of the contract that it should be so.' Such has been the rule in England ever since; and the same rule prevails, with few exceptions, in the United States. The doctrine proceeds upon the obvious ground, that nothing can be justly considered as payment in fact, but that which is in truth such, unless something else is expressly agreed to be received in its place. That a mere promise to pay cannot of itself be regarded as an effective payment is manifest.

The rule in Massachusetts is an exception to the general law; but even there, as we have said, the presumption that the note was given in satisfaction of the debt may be repelled and controlled by evidence that such was not the intention of the parties, and this evidence may arise from the general nature of the transaction, as well as from direct testimony to the fact. Thus, in Butts v. Dean, where a note was given for a debt secured by the bond of a third person, it was held that it was not to be presumed that the creditor intended to relinquish his security, and, therefore, the note was not to be deemed payment for the original debt. And following this and other like authorities of that State, Mr. Justice Sprague, of the United States District Court, held that a lien for materials furnished a vessel built in Massachusetts, a lien given in such a case, by a law of that State, was not displaced or impaired by the creditors taking the notes of the debtor.

And on like grounds, we think that any presumption of a discharge of the claim of a ship-owner, and of his lien upon the cargo in this case, by his taking the notes of the charterers, is repelled and overthrown.

DECREE AFFIRMED.

title: The Kimball/Opinion of the Court


text: Talk:The Kimball/Opinion of the Court

title: Talk:The Kimball/Opinion of the Court


text:
Castro v. United States

THE Judiciary Act of 1789 allows examination, by this court, of final judgments and decrees given in the circuits, 'upon a writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and prayer for reversal, with a citation to the adverse party,' such party having a notice prescribed in the act. A subsequent act of 1803, which gives an appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. But nothing is said, specifically, in either act, as to when the writ of error, the citation, or the record is to be returned to this court.

An act of March 3d, 1851, to ascertain and settle private land claims in the State of California, authorizes, by its tenth section, the District Courts there to hear cases of a certain kind, and declares that after judgment they 'shall, on application of the party against whom judgment is rendered, grant an appeal to the Supreme Court of the United States on such security for costs in the District and Supreme Court as the said court shall prescribe.' But says nothing more on this subject.

Under this act of 1851, the District Court for the Northern District of California rendered a decree, on the 23d of November, 1859, in a case between Castro, claimant, and the United States. On the 24th of January, 1860, an appeal was granted, on motion by the United States. This appeal seems to have been dismissed; and on the 11th of November, 1864, an appeal was allowed, on the motion of the claimant, the then District Attorney of the United States being present in court. No citation was issued upon this appeal returnable to the next term of this court, nor was the record filed and the cause docketed during that term. On the 29th of May, 1865, however, a citation was issued, returnable at this term, and service of this citation was acknowledged by the present district attorney; and the writ was returned and the record filed at this term, under an agreement between the district attorney and the attorney for the claimants, to submit the cause upon printed briefs. This arrangement was subject to the approval of the attorney-general, who withheld his approval.

He now moved to dismiss the appeal.

Mr. Wills, representing the attorney-general, in support of the motion: It is true that the act of 1789 does not specifically say that the record, &c., is to be returned to the next term, but it does say so impliedly; and so this court have held. Thus, in Vilabolos v. United States, they say: The writ of error is always returnable to the term of the appellate court next following the date of the writ; and the citation required by the act of 1789 (which is a summons to the opposite party to appear), must be returnable to the same term; and unless the writ and citation are both served before the term the case is not removed to the appellate court, and the writ, if returned afterwards, will be quashed. In United States v. Curry, the court, referring to Vilabolos v. United States, said: 'The court, in that case, held that the appellant must prosecute his appeal to the next succeeding term;' and in a case long after either, -referring to the two cases just cited-they declare: 'The construction of this act of Congress and the practice of this court under it has been settled.'

This settled practice of the court, under the early acts, must be held to regulate an enactment in pari materi a; and such seems to have been the view of the court as it is to be gathered from the very curtly stated case of Mesa v. United States.

Mr. Stewart, contra: The objection is technical, and rests on a matter of form only. There is nothing specific in any act which would cause this case to be dismissed for laches; and nothing assuredly of any kind in the act under which the appeal is taken. If there was irregularity, it is waived by the admitted presence and presumable assent of the district attorney; with his confessed acknowledgment of notice.

Reply: The question is not one of form, but is one of substance; of jurisdiction itself. Nothing that the district attorney did or could do, or that the attorney-general himself could, would give competence to the court, if under the acts of Congress the court has it not.

The CHIEF JUSTICE delivered the opinion of the court:

title: Castro v. United States


text: Talk:Castro v. United States

title: Talk:Castro v. United States


text:
Castro v. United States/Opinion of the Court

We have no jurisdiction of this appeal, unless it has been allowed by some act of Congress, and has been brought in substantial conformity with the legislative directions. The appellate jurisdiction of this court is, indeed, derived from the Constitution; but by the express terms of the constitutional grant, it is subjected to such exceptions and to such regulations as Congress may make.

In the Judiciary Act of 1789, and in many acts since, Congress has provided for its exercise in such cases and classes of cases, and under such regulations as seemed to the legislative wisdom convenient and appropriate. The court has always regarded appeals in other cases as excepted from the grant of appellate power, and has always felt itself bound to give effect to the regulations by which Congress has prescribed the manner of its exercise. We here use the word appeals in its largest sense, comprehending writs of error, and every other form in which appellate jurisdiction may be invoked or brought into action.

The acts of Congress providing for and regulating appeals have been often under the consideration of this court; and it may now be regarded as settled, that in the cases where appeals are allowed by the Judiciary Act of 1789, and the additional act of 1803, the writ of error, or the allowance of appeal, together with a copy of the record and the citation, when a citation is required, must be returned to the next term of this court after the writ is sued out or the appeal allowed; otherwise the writ of error, or the appeal, as the case may be, will become void, and the party desiring to invoke the appellate jurisdiction will be obliged to resort to a new writ or a new appeal.

In the case now before us, the rule just noticed was not followed. The appeal was allowed on the 11th November, 1864, and the allowance, with a citation to the adverse party, duly served, and a copy of the record, should have been sent here at the next term. This was not done, and the appeal, therefore, became void. The citation subsequently issued was consequently without avail, for there was no subsisting appeal.

The fact that the district attorney was present in court, cannot change this conclusion. We are not prepared to admit that the more presence of counsel in court at the time of the allowance of an appeal, at another term than that of the decision appealed from, and without notice of the motion or prayer for allowance, would dispense with the necessity for a citation. Certainly it would have no greater effect; and in the case before us, a citation, even if issued and served contemporaneously with the allowance of the appeal, would have availed nothing, because of the omission to make the required return to the next term.

If this appeal, therefore, is to be disposed of under the acts of 1789 and 1803, as interpreted by this tribunal, it must be dismissed.

But it does not come before us under those acts.

It was allowed under the tenth section of the act of March 3, 1851, to ascertain and settle private land claims in the State of California, which authorizes the allowance of appeals on application to the District Court, and giving security, if required, for prosecution.

This act makes no provision concerning returns to this court, and none concerning citations; nor does it impose any limitation of time within which appeals may be allowed.

But we cannot suppose that Congress intended no regulation of these appeals in these important respects. It had already prescribed regulations for the most usual invocation of appellate jurisdiction; and when it provided for appeals in these land cases from the District Court for California, it had, doubtless, these regulations in view. We think, therefore, that the appeals authorized by this section must be regarded as appeals subject to the general regulations of the acts of 1789 and 1803. If we held otherwise, we should be obliged to sanction appeals taken at any term, and brought here at any time after final decision; or to confine the right of appeal to the term of the District Court in which the decision complained of was made. We cannot ascribe to Congress either intention.

The appeal before us, therefore, must be considered as having been made subject to those regulations, and must be dismissed for want of conformity to them by the appellant.

MOTION GRANTED.


text: Talk:Castro v. United States/Opinion of the Court


text:
The Binghamton Bridge

THE legislature of New York was desirous in early times to have turnpike communications from the Chenango River, in the interior of the States as the river approaches the Pennsylvania line, to the Hudson River at and below Newburgh, on that stream. Roads from the one river to the other by the routes contemplated had to cross the east branch of the Susquehanna, the east and west branches of the Delaware, and it was proposed also to make a bridge westward across the Chenango River itself. Accordingly, on the 6th of April, 1805, the legislature passed an act to establish a 'turnpike corporation,' as it was called, for these purposes. The act was a very long one-forty-two sections-and for the purpose of a subdivision of labor, created in fact some four or five corporations. Among them a company for the purpose of building, by subscription of capital, bridges over the west and east branches of the Delaware River, was incorporated by the name of 'The President and Directors of the Delaware Bridge Company.' The sections of the act relating to this company, fifteen in number, besides incorporating company in form, with the usual incidents, 'continual succession,' 'suing,' &c., gave it the right of purchasing, holding, and conveying any estate, real and personal, necessary to fulfil the end and intent of the corporation. They prescribed the mode of organizing the company, the kind of bridge to be built, the places where toll-gates should be put, the amount of tolls to be taken after the judges of Delaware County should declare that the bridge was finished, the duty of care and superintendence of the bridge, and the penalty (forfeiture of charter) of neglect to repair or rebuild it if out of order or carried away; the punishment to be inflicted on any one who wilfully injured it, &c., &c.

Power was given to the directors to increase the stock of the company from time to time, after the original capital had been expended, as the exigency should in their judgment require, by assessments on the old shares, and to collect it, with a right of forfeiture of the old shares, if not paid, and shares in the corporation were made personal property.

The 31st section enacted:

'It shall not be lawful for any person or persons to erect any bridge, or establish any ferry across the said west and east branches of Delaware River, within two miles either above or below the bridges to be erected and maintained in pursuance of this act.'. . . 'Provided, nevertheless,' the act went on to say, 'that nothing herein contained shall be construed to prevent any person, residing within two miles of the said bridges, from crossing the said river to or from his or her own house or land with his or her own boat or craft, without being subject to the payment of any toll.'

An additional-the 36th-section provided that, at the expiration of thirty years, the bridge should become the property of the people of this State.

So far as regards the Delaware Bridge Company.

A subsequent part of the same act-its 38th section incorporated another company-a single company-'The Susquehanna Bridge Company,' for the purpose of erecting a bridge across the Susquehanna, at what was then called Oquaga, and since Windsor; and also for erecting a bridge at Chenango Point, the now village of Binghamton.

This section enacts, among other things, that the persons named, their successors and assigns,

'Shall be and are hereby created a body politic, and by the name of 'The Susquehanna Bridge Company,' their successors and assigns shall be and hereby are invested with all and singular the powers, rights, privileges, immunities, and advantages, and shall be subject to all the duties, regulations, restraints, and penalties which are contained in the foregoing incorporation of the Delaware Bridge Company; and all and singular the provisions, sections, and clauses thereof, not inconsistent with the particular provisions herein contained, shall be and hereby are fully extended to the president and directors of this incorporation.'

The charters of these bridge companies-inserted, as already mentioned, in the body of the act incorporating the road-were prefaced by this preamble.

'Whereas, the foregoing road incorporation cannot be sufficiently carried into effect, or the public convenience fully promoted, if durable and permanent bridges across the Susquehanna and Chenango rivers, and the east and west branches of Delaware River, at the several places of intersection of the said roads, are not at the same time erected and maintained. And whereas, by reason of the great expense necessarily to be incurred in erecting and maintaining such bridges, on account of the size and rapidity of those streams, and the extraordinary freshets and frequent obstructions happening in those rivers, to which such bridges will be exposed, and which will endanger their permanency and durability, and may call forth a frequent renewal of the whole capital required for rebuilding such bridges, and therefore require a power (not contained in the foregoing incorporations) of calling from the stockholders, from time to time, such sums as shall be required for upholding such bridges, and which equally forbid the policy incorporated in the foregoing incorporations, that said property shall revert to the State; and whereas it is suggested that it will be most expedient for the purposes aforesaid to make two separate and distinct bridge incorporations, with powers adequate to the accomplishment thereof in the best possible manner. Therefore,

'Section 23. Be it enacted,' &c.

On the 1st April, 1808, the Susquehanna and Chenango bridges not being yet built, another act was passed amendatory of the old one. It ran in substance thus:'Section 3. Be it enacted, That the incorporation of the Susquehanna Bridge Company shall hereafter be deemed and considered to exist for the sole purpose of erecting and maintaining a toll-bridge, under their said charter, across the Susquehanna River at Oquaga, under all its present provisions, except the limitation of its duration of thirty years, which said limitation shall be and hereby is repealed; and that the time within which it shall be built shall be and hereby is extended to four years from the passing of this act.

'Section 4. And be it further enacted, That for the purpose of erecting and maintaining a toll-bridge across the Chenango River, at or near Chenango Point, the present stockholders of the Susquehanna Bridge Company, or such others as shall associate for that purpose, shall be and hereby are created a body corporate, in fact and in name, by the name and style of 'The Chenango Bridge Company,' and as such to have perpetual succession, under all the provisions, regulations, restrictions, clauses, and provisions of the before-mentioned Susquehanna Bridge Company.'

Under this last section, several persons consociated themselves, in 1808, under the name of the Chenango Bridge Company, and built a toll-bridge at Chenango Point, about one hundred rods above the point at which that stream merges itself and is lost in the lorger and more important Susquehanna.

In 1805, when the first act was passed, Chenango Point had but two or three houses, was a small place every way; hard, comparatively, of access; and with a surrounding region sparsely populated. Matters were not much different in 1808 when the second one was passed. In the course of fifty years, the condition of things had changed. Population had increased. The New York and Erie and other railways ran near the place. Villages had sprung up around. In 1854, several persons, 'inhabitants of the village of Binghamton and its vicinity,' presented a petition to the legislature of New York, praying for the passage of an act authorizing an additional bridge. Their petition set forth:

'That the said village, situated at the confluence of the Susquehanna and Chenango Rivers, has a population of about ten thousand persons. That it covers the point between the rivers, and extends to the opposite side of both. That since the construction of the New York and Erie Railroad, which crosses the Chenango River about one mile from the mouth, the village has rapidly extended up said river, on both sides, and has largely increased, particularly upon the westerly side.

'They represent that the depots of all the railroads are on the easterly side of the Chenango, above where it is proposed to place the new bridge; that the said railroad depots occasion much travel to and from them, to and from the westerly side of the Chenango River, and that those who would cross in the vicinity of said depots are compelled to go nearly one-half mile down the Chenango River, and up it again on the other side, to and from the depots, thus losing nearly one mile of travel upon every such occasion. That a large volume of travel constantly passes over said old Chenango bridge, so great that it is frequently blocked up, by waiting for some to pay toll and otherwise, to the hindrance of travellers and citizens, and especially upon public days and funeral occasions. That all the churches, except the Catholic, are situated, and the principal business streets are upon the easterly side of the Chenango, and that the new, and hereafter to be principal public cemetery is situated upon the westerly side of the Chenango, about one mile above the old bridge. That the river is subject to high freshets and ice floods, and that in case the present bridge across the Chenango should be carried away there would be no means but a railroad bridge, where travel is not permitted, of reaching said churches, nor the business street from the westerly side of the Chenango, or the cemetery from the easterly side, nor could numerous citizens who reside upon the westerly side of the Chenango reach their places of business. That by reason of the great amount of travel over the present bridge and other causes it is frequently out of repair, so that only one side of it can be used, and at such times it is passed only with great delay and difficulty.'The legislature of New York accordingly, by 'An act to incorporate the Binghamton Bridge Company,' passed April 5, 1855, granted a charter to another bridge company, who built a bridge a few rods above the old one. This greatly diminished and seemed likely to destroy its tolls, which had been for a long time profitable.

The old bridge company now accordingly filed a bill in the Supreme Court of New York to enjoin the new rival.

The bill-resting itself, of course, on the postulate that the rights given by the act of 1805 to the Delaware Bridge Company were imported by the 38th section of it into that of the Susquehanna Company of that act; that these again, thus imported, were translated (with the thirty-years restriction only thrown off) into the third section of the act of 1808, and that these last were carried finally into the fourth section of this new act insisted that these various enactments made an 'absolute, unconditional, and unlimited contract' with them that no bridge should ever be built over the Chenango River within two miles of theirs, either above or below it.

The answer denied the contract set up.

The Supreme Court of New York dismissed the bill. On appeal, the Court of Appeals, the highest court of the State of law or equity in which a decision of the matter could be had, affirmed the decree. The case was now brought here for review; the matter coming here, of course, under the 25th section of the Judiciary Act of 1789, which provides that a final judgment or decree in the highest court of law or equity in a State, 'where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of such validity, may be examined and reviewed in this court;' and the allegation being that the act of April 5, 1855, incorporating the new bridge company, was contrary to that clause of the Constitution of the United States which ordanis that 'no State shall pass any law impairing the obligation of contracts.'

The certificate from the Court of Appeals declared that the question raised by the Chenango Bridge Company, appellants in the case was:

'That the said act of April 5, 1855, was repugnant to the Constitution of the United States; and the question decided by this court, in order to induce the judgment of this court, was, that the said act of April 5, 1855, was not repugnant to the Constitution of the United States, and that said act of April 5, 1855, is held valid and binding by this court, notwithstanding said act was drawn in question in this cause, and the question clearly raised therein that said act was void as aforesaid.'

It was then 'ordered that the record and proceedings be remitted to the Supreme Court,' here to be proceeded upon according to law.

Three questions were made here:

1st. A preliminary one, not very much pressed, whether the certificate gave this court jurisdiction under the 25th section of the Judiciary Act?

2d. Did the acts of 1805 and 1808 give the complainants an exclusive and perpetual privilege against anybody; either individuals or legislature?

3d. Supposing that under the expression 'it shall not be lawful for any person or persons to erect any bridge' it gave them such privilege as against individuals, did it give them such right as against the legislature also?

[To understand fully the argument on this third point, it must be stated, that it was assumed in the argument by the Chenango company's counsel, and was stated as a fact in some of the opinions below, that in 1797 an act was passed providing for the opening and construction of highways and bridges, by superintendents and commissioners of highways; and that in the same year provision was made to authorize and regulate ferries within the State-forbidding the establishing and use of any ferry, for profit and hire, unless duly authorized, and conferring authority upon the courts of common pleas in each county of the State to grant licenses for keeping ferries, as many and to such persons as the court shall think proper.]

Mr. D. S. Dickenson, for the Binghamton Bridge Company, and against the jurisdiction and exclusive privileges.

I. Whatever the certificate may state, it is obvious that the real question below was whether the acts of 1805 and 1808 made a contract exclusive as against the State. Supposing such a contract, there could be no doubt that the act of 1855 impaired it. The decision below was that they did not make it. The decision then was an adjudication of a State court upon a statute of the State; and construing it. Such a case is not one within the 25th section. It may be said, however, that this point has been otherwise adjudicated in Bridge Proprietors v. Hoboken Company. If that is so, there remain other grounds for dismissing the case.

The certificate states that in order to induce the judgment of this (the Supreme Court of the United States), the question decided below, was thus and so. Can cases thus be decided in a particular manner, for the purpose of bringing them here, under the 25th section, and then be certified into jurisdiction? The purpose of the act was not to have anything brought here which was not decided for the purposes of justice in the case; cases decided merely to get a review by this tribunal, however decided, are not proper matters for its jurisdiction. Jurisdiction cannot be 'manufactured,' and authority thus given, even to this court, to review the legislation and judicial proceedings of a State, which ordinarily belong to the State courts alone, and should rest there.

II. We concede that the legislature may, by a clear manifestation of its intention to do so, make dispositions of matters which are proper subjects of its disposition. It may sell all which is the subject of bargain. But its sovereignty cannot be vended in perpetuo. One legislature cannot place the sovereignty of the State or any portion of it beyond the reach of all succeeding ones.

A disposition of that in which the supremacy of government rests, is an assumption of power not legislative in its nature and is void. The legislature here has disposed of the right of passing a great river for four miles. If it can dispose of it for four miles, it can do so for a hundred, and when the principle is admitted, what is to curb it but the slender rein of legislative discretion? The Chenango, from its source to its mouth, is nearly a hundred miles in length. If the legislature had extended the restriction over the whole, the question in all its legal relations would have been the same. This shows to what point the doctrine leads. A State is the guardian, not the broker of its people's rights; the protector, not the auctioneer of their property. It is invested with great and awful powers, and must necessarily be so; but among them all there is no power to oppress.

The Dartmouth College case may perhaps be invoked against these views and in support of the pretensions of the other side. If it sustain such pretensions-grants of the State sovereignty from the control of successive legislatures forever-we deny its authority in this day.

But in truth there is no relation whatsoever between it and the case at bar. In the college case a royal charter had been granted to a number of persons, incorporating them as a religious and literary institution. Large donations were made to it. It had the power to fill vacancies in the board of its trustees, to manage its funds, &c. The legislature largely increased the number of trustees, and provided a different mode for the appointment of persons to have charge of the trust funds, &c. The court found no difficulty in holding that a contract had been made and its obligations violated. But suppose that the charter had said 'it shall not be lawful to erect any other college in New Hampshire,' would such an enactment-in injury of education and of public right forever-have been held binding?

If the provident principles of government which we have asserted be questioned, the principle of law will not be questioned, that all statutes which seek to abridge the power of legislation, to prohibit the exercise of common-law right and oppress the people, which confer monopolies or impose restraints or penalties, are to be construed strictly against those asserting the exclusive right and favorably for the public. The rule is one that has been imbedded from early days in the English law. It has been declared with force, by Sir William Scott and by Lord Tenterden, as existing equally in these.

Now 'it would present,' as Taney, C. J., said, in a wellknown case, 'a singular spectacle, if while the courts of England are restraining within the strictest limits the spirit of monopoly, and exclusive privileges in the nature of monopolies, and confining corporations to privileges plainly given them in their charter, the courts in this country should be found enlarging these privileges by implication, and construing a statute more unfavorably to the public and to the rights of the community than would be done in an English court of justice.' There, after premising that those who accept charters have full opportunity to examine and consider the provisions before they invest their money, he adds: 'And if individuals choose to accept a charter in which the words are susceptible of different meanings; or might have been considered by the representatives of the State as words of legislation only, and subject to future revision and repeal, and not as words of contract; the parties who accept it have no just right to call upon this court to exercise its high power over a State upon doubtful or ambiguous words, nor upon any supposed equitable construction or inferences based upon other provisions in its acts of incorporation.'

In Dartmouth College v. Woodward, Marshall, C. J., says: 'On more than one occasion this court has declared, that in no doubtful case would it pronounce a legislative act contrary to the Constitution.'

title: The Binghamton Bridge


text: Talk:The Binghamton Bridge

title: Talk:The Binghamton Bridge