Page:Federal Reporter, 1st Series, Volume 5.djvu/629

 IN EE LONG ISLAND, ETC., TEANSPORTATION 00. 617 �fact that congress bas the power in its discretion to give or withhold frotn suitors in the courts of the United States par- tic ular remedies, it seems to me, make it a fair question for discussion whether congress bas not the general power to adopt, from the general maritime law, an existing rule or principle of that law, and to make it, as part of the maritime law of the United States, a uniform rule of decision in the admiralty courts of the United States, independeûtly of the power of congress to regulate commerce between the states and with foreign countries. In one of the latest decisions of the supreme court, under this very statute, (Lord v. Steam- ship Co., Oct. term, 1880,) which was the case of a -yessel en- gaged in commerce between San Francisco and San Diego, the court held the statute applicable on the ground that commerce upon the ocean, and beyond the territorial limits of any state, must be regarded as foreign commerce, although the persons and things carried were not in transit between the states, or to or from foreign countries, and that therefore the statute could have effect in that case as a regulation of commerce. But the chief justice, in giving the opinion of the court, .recog- nizing the fact that the question of the effect of the statute might arise in a case where the commercial power of con- gress would not apply, makes the following saving observation in respect to this statute : "Having found ample authority for the act as it now stands in the commercial clause of the constitution, it is unnecessary to consider whether itis within the judicial power of the United States over cases of admi- ralty and maritime jurisdiction." By this I understand the court to iiitimate that they consider it an open question whether, independently of the power to regulate commerce, the statute could be justified under the clauses of the consti- tution above referred to, vesting the judicial power in ail admiralty and maritime causes in the courts of the United States, and giving congress power to legislate to carry into effect this clause. The question thus foreshadowed by the supreme court bas actually arisen for decision in this case ; and, after giving the matter a careful consideration, I am of opinion that the statute can thus take effect independently ����