Page:The Green Bag (1889–1914), Volume 16.pdf/97

 The Green BagCourt of the United States treated the pro fession and the country with a genuine sur prise; and persons who viewed with jealousy and alarm the extension of Federal jurisdiction through amendments to the Federal Constitution, adopted not by the assent of three-fourths of the States, but by the assent of a bare majority of the nine judges of the Supreme Court, had measurably ceased. But they are now awakened to a realization of the fact that the process of "sapping and mining"—we use an expression of Thomas Jefferson—has been resumed. This time it exhibits the alarming feature of holding that the admiralty jurisdiction granted by the States to the United States by the Federal Constitution, extends to canals which are created and maintained by a single State and which lie wholly within the limits of that State, — in the particular case, to a libel for repairs upon a canal boat built to be hauled by horses along the Erie Canal, which is an artificial internal water way of the State of New York. The decision is rendered by a bare majority of the nine judges of the court. The opinion is written by Justice Brown, whose thorough knowl edge of the admiralty law will commend it to the respect though perhaps not to the assent of the profession. Concurring with Justice Brown are Justices White, McKenna, Day and Holmes. Dissenting from the opinion of this slender majority are Chief Justice Fuller and Justices Harían, Brewer and Peckham. Mr. Justice Brewer writes the dis senting opinion. . . . The premise of this remarkable decision is the following extract from the judiciary clause of the Federal Constitution: "The judicial power shall extend . . . to all cases of admiralty and maritime juris diction." This no doubt refers to admiralty and maritime jurisdiction as it was understood at the time of the making of the Constitution. The meaning of this undefined and indeter minate clause has been the source of fruitless controversy and of endless casuistry. Many years ago, the different States which were

bordered by navigable rivers, or which con tained within their territories navigable streams, had what were called "Boat and Vessel Acts," under which liens for supplies furnished to steamboats and for the wages of boat-hands were enforced in the State courts. A decision of the Supreme Court of the United States, extending the jurisdiction of the United States courts of admiralty over inland waters, wiped out tihis entire State jurisdiction. The Missouri Boat and Vessel Act and rimilar acts of other States went into decay. Claimants against these small craft were remitted to more expensive proceed ings in the District Courts of the United States, and were subject to the unchecked extortion of the officers of these courts. Now the Supreme Court of the United States has taken a step further, and has ap plied the admiralty jurisdiction granted to the United States to artificial waters created and maintained by a State, wholly .within its own limits. It took the court some sixty years to find out that the admiralty jurisdiction granted to the Federal judicatories by the Constitution, extended to inland waters. It has taken it about seventy-five years to find out that this jurisdiction extends to State canals; for we have had such canals for about that length of time. Another downward surge has been taken upon the lever of the Federal ratchet. The weight has been lifted to a new point. The tooth has caught in a new notch. The weight will never descend. The contrivance is of such a nature that it works only in one way—moves the weight only in one direc tion. This is irretrievably so, unless Congress shall interfere. Congress has plenary power over the subject. The judicial power of the United States "extends to" the subject. But Congress can withhold that or any other subject from the Federal District Courts, and can abolish those courts altogether, if it sees fit to do so. The State of New York ought to demand that jurisdiction over its own in ternal improvements be restored to its own courts, and Congress ought to, and will if