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( I .) »L^i*'-^"^^ *^'*' '"*"" '" ^^^ °^'** collision bting teithin thebodj/ of a county or of a district, if within tide water tnthe lUvnr St, Lawrence, would not oust the jurisdiction of the AdmiraUjf,~no fxc\usUe jurisdiction attaching, by the Laws of Lower Canada, to the loeaUty of the coniraci or thing done,-^us in England. The Rivet- St. Laurence, throughout all its course iii Loiter Canada, is not comprehended ih Hnti one of thi Judicatute Districts. IN THE VICE ADMIRALTY COURT OF LOWER CANADA, the«3d Mauch, 1844. Before Dunbar Ross, Esquire, Depufy Judge. The LORD SYDENHAM, Charles Armstrong, Master.' ACTION or JOHN M OLSON, & al. Sfirnhn ^? T^ °»''«"»»t' ^*'""" °f ^h*' Steamboat Queen, against The rant of a .a^K^"* ^tdenham The action commenced by the issuing of a war. oelLnrfi-' "'"*V""''V "*""' ^^^ '^°'"' Stdenham w.s arrested! An ap, pearance was given for the owners of the Lord Sydenham, u ,t'er protest td the jurisdiction of the Court, on the grounds : - » "*"» l"^«»**« «" ed, was in that part of the Uiver St. Lawrence called and known as LatrSr Feter, about two and a half miles below Yamachiche, and abo"t four and a .^l*" Snf ".? ^n "*^ ^" '^"'•' -"^ ^''^t*"' «»>o»t •»»'" miles from tie noftS he bUoithe Cn'^""?'JM'* ?'•"'» '" I-wer Canada, and also wiS ine body of the County of ht. Maurice in the said District, and is therefore' evasively cognizable by the Court, of King's Bench of llU'cltlSl V <^»f»:«-H»milion n. Fraser, K, B , Quebec. 182S.~Watu ft. Soucy, K. B. Q Ib'Ql.— Stuart R„ pp. 158, 39 181 t.Woaet Tf. flowed, K. B.- (t,' ^Moiutfy-.TlMt the lald colUtion did not oceor on tbo ftUli and on^n ttat, nor n any wattrs wdbin tho tbbing and flowina of tha tide . bat folk dUco HtMjIh. bodyof «ho.ald Connl/of 8t. M.o'ce. In Iba D .iriciJ^^^^^^^ •ot of !•• j«i.dIctloo of tba High toon of Admlnilly of England, .ndlb"^! fort oat of tbo joriadlclio. of Iba Coort of Vica Admirally of uier CaMda. I- %,**£"'?•."'■ **••»' f«P'y •"•I'd th«t Iha collision In qoaillon happaned •llii ?fc!*:K^ •Is a*' ■ PJ'!* *•.!!•'' ^••"••^»»»«>»». ■»«» -bowa Point. Jjf^c, Thwj Rlyari, oor within tba bodj of tha Coontj of St. Manrlcf . partial *" P'odocad lo tarlficalioo of tha raipactifa allrgatloniof tha 7^ ^opf n^ote prodaced four aSda? Hi :— -r^' *? ^" "." *****'** "*• S*«*««' I^"' Sydenham, on the twen(v.thlrd day t 1. S^ n » ^'^ " ***• *^*'""'*>'» *« qoe«tlon happened— That It lo^k placa In Juaka St. Peter, aboot two and a half milea below Yamachichr, and about four SjII? *?? u J •JT ??*"*• *^" ^«» ••»*"» »*•'•• ""«• ''o"* »»•« north 'hoWf ri • lt\^^7 "/ *"•• '^^•*''*^ *»' '''"■'• R''«"» ■nd of the County of Sl.Mau. .«! 1" t ";•*!'**♦. ■"** "®* "P*"* "•' »n »'7 w«k place in about four orth shore, [>r St. Man. he ebbing cttn non» vcen Qoe* ISOOnntii iiowt how h»re if no r beyond ei.--That rljf windi, le current ndi, thejr »i((b winda Ihe Rifer, -That liie and be la t»ing and \n old Tdk- Cy depoa- ast forty between I tlitreioy Bit place, *#% •** *••» • ipri0|. ( IIeihK,PcoU, of Quebec, Gentleman-. bai reaided in tbia Protinee for On?lL^: .'„Vm '': '"? '• •.•" ri^';*"*'*^ ''"'» *••• "^'"^ St. UwrenrbeiweT. ^ J . K ?? *'?"*"•'» "d *»•>» <•»• ebbing and iowing of the tides therdn «1: if h • **•."."' *••• "'"?'"" '" "t'' "■-• "f »»• ''•«•" of he S Uw.' f« .? . fh-^iof Quebec, Merchani-baa resided in this part of the Province for the last twentyaet en yeora , and daring the greater part of that nerled hw acted a. Agent for Ship, and Steamboat. Jaf Igating the*^8 . llwinSI betUj^ Qnebecand i^ontre.l and is well acqnainteJwIth the tide. t3n and wl!fc he placeof the col l.ion in question in thi. caa.e;-itl. to hi. Icnowleie That ed by (he influence of the wind.. r a »•> ""wa John Ryan, of Quebec, Gentleman— ha. re.ided doHag the laat fortv veara with occasional inter..ls, in this Protince. During se4n orSghryeJi".' w.. master o a Sto.mboat na.lg.tlng the Riter St. liwrence betSeen^Qj^beo ^,^r-?S' "k ? '''" ■/"l"''?*'^* "'»«» »he e«,ingand flowing of theUdea Ih. «r ."k ^Ti **'**.'!" *''* "W P'««e.. He i. alsoVell acquainted wi*b the .Ite of the collision. I he waters of the St. Lawrence rise there .eteral inchet at .pring-tides, unaided by the influence of the wind. In the year 184 the Steamboat Charletoi, grounded about fifteen mileaabote the plicSof the coU liaion, and the w tness was despatched by the owners to get her off; but after TL'l"! ".•1"*'" 'I' ""* P."'*^"** ••• **'** "•» "'="•5 ontil tbe'setting In t IJ; ^ rl'*:?!:' I*^'"' "*•"« *" **•• ''•• "^ »»»« "•«" «»««ed by the tide" he accomplished bis object. "^ • Mr. Ahern and the Honorable Mr. Primrose argued the case on behalf of the Respondents In .upportof their Prote.t to the jSrlsdictionf ?he CoJr,, "d contended that the jurisdiction of the Admiralty/ in citil maiters. may be prcM per ly divided into I. Local, to which belong, collision. Ac. «. io thi nu&Vt matter, a. contract, for wages, bottomry bo„d.,&c.,-That thi. q.e.tion necetl My turna on the I .t head, the locality of the coluJion.-That the place of SJ collision is proved by the affidavits to be beyond the ebb and flow of the tldi^ That he rise of waters mentioned in these afildavit. was the combined effect^ the wind and the damming up of the waters by the tide below-Thai to ^. l£r.?r. /.^°':L'* r^^ *J" *" **•• P"**"* "»• '* "« «PP»rent, from all the affidavits, that the flow of water at the place in queatioSlsconltantly down! Maurice and of the District of Three River*~That the Court has no jJriX- 1.".?^!' *'■''■•• •'•««o°«ri«i»lin Phice. beyond the ebbing and fliwingof xJ^^l "!' until the pawing of the 3d Will. IV, c. 51., In any place which is within the body of a County, or the body of a Diltrict. That in EnglMd the Common Law Courta would not permit the Admiralty to exercise juri«diction in matter, within the cogni.ance of the former be. cauM it would be depriving the .object of the trial by jSry-ThiuX «.« fajtof the locuiin juo being in a'Conoty onated tS r/miraitjLThauiJ Cwrt in Canada could CEcrcLe no greater jnritdlctiii than theH^ SartolT Admiralty, of which it w«i ■ mere ftmanation— That ihe di cMoin of ihe Coorti of King's Bench in tbeCnie of llair.iltun ?. Kramr, and of ihf Cmnilfus, yerc conclutire ai lo the want of jori»(iiciion in ih** Coun wiihiii ihe limitaof I^wer Canada— That the Statute 9d Wm. IV., i\oi» not give juriidictlun out of tide wMer. and only had the i-ffect of tnliinK away Ihe power of prohibition pn the capes therein mentioned when occurring within the ebb iind flow, and thatjurifdicllbn is never implied in fafor of an Inferior Court— That the Sta* tute 3 and 4 Vict., c. 65, which extended the jurisdiction of the High Court pf Admiralty in England to cases of collision within the body of a County, had no reference tb thi» Country, as appeared by its provisions, which related ex- pressly to that Court, and that in di terminlni; Ihe law of this case we must keep our attention fixed on the decisions and conflicts in Kngland anterior to 1840 — That before that period the Admiralty in Kngland had no jurisrfjctlon oyer causes of wages bfgun and finishing in a County, nor in cases of salvage pr colliaion occirring wfthin the body of a County, nor tor necessaries furnish- fd (oa foreign vessel— That even if this Statute could be considered as extend- jng to Vice Admiralty Courts abroad, it never could be so construed as lo give jurisdiction beyond the ebb and flow of the sea, Ihe intentions of the I.egisla. lure being only to obviate the inconveniences which liad been experienced in certain cases occurring within the ebb and flow and within the body ofaCounty; that this extension of jurisdiction had been carefully limited lo ships and sea* going vessels^ thus excluding all olhtr vessels or Steamboats employed exclu- sively in carrying on the internal commerce of the country— that in respect even to the siiips and sea-going vessels, British ships were only sulnectcd to the jurisdiction in cases nf salvage and damage,whilst foreign vess-ls were fur- ^her made subject to it in respect to tonnage and necessaries supplied ; that thus these latter description of claims, if arising within the body of a County were, in respect to British ships, still l-ft to the jurisdiction of the Common |j.aw Courts.- That the place of collision in this cause was beyond the ebb and flow of ttie tide,and that n. iiher the Admiralty law, nor the Commission of the Judge, gave him power to try it— That to constitute an ebb and flow there giust be a flux and reflux of the tide twice in twenty-four hours— That in Lalce St. Peter there was not even a periodical rise and fall of the waters ; but only a partial rise at particular seasons, when aided by the wind at the spring-iidcs, which rise continued for several days. i 6 > ^.?. *^m *'*no°'"; J *^'*- ^?.' ^^' ^^' *°^- 2 "'°^"' ^''- * Adm. hw, pp. Ua iLL' S2.— Johnson's Diet. v. reflut. 3 Story Am. Const, pp. 526, 527, 630, 532, Par. 1663. 2 Bac. Ab. pp. 176-7. Coke 3 Inst. 113. 4 Inst. :?1 !?J°'^''.\,*'^* 3 Term R., 315. More R , 891. Stuart K., 21, 150. !>(at. 34 Geo. III., c. 6. Falconer's Dictionary, word tide, Mr. Andrew Stuart, in answer and in support of the jurisdiction of the vu '* *'8°«'*^»-:That with respect to the site of the collision being beyond the ebb and flow of the tide,it carinot be derided by an Act on Protest, in as much as there IS contrariety in the affidavilH as to the main fact upon which the objec- tion is based, and that the case must go lo plea and proof— Then as lo the se- cond objection, namely, " that the locus in quo of the collision heina »Wh:n !i *^* ^^l °^ **'® County of St. Maurice, and of the District of Three'Rireri. ♦f ousted the jurisdiction of the Couit,"— it will be found, upon reference to ■♦. Innf of ilia f CnmilluK, h« limits of dicliun out proliHiitipn flow, and ul llie Sia* iigh Court buiily, had rflntedrx- e we muit anterior to urisc^lctioii of salrage eg funiiiih* asexteiid- 1 UAlo gife )e I.ei{i8la> >rienced in ' aCouniy; IS and sea* 'ed exclu> ill respect ilijected to were fur- lied ; that a County i Common e ebb and ision of the low there lit in Lake ; but onljr ring.tidcs, . Inw, pp. 526, 527, I. 4 lust. ,31,150, he, Prov. on of the eyond the n as much theobjec- to the sp- no wSihSn — o ■• -* te Hirers, erenre to liie Statute Oib Geo. IV., r. 73, that the county of St. Maorlc- was b..uuJeJ on ihc soulh-easl by the KI.er St. Lawrence, and d.d not comprehend the site of the collision-] hat the Court of Vice Admiralty in Lower Canada was test- ed with a much larner juriMliciion ihan the lli^h Court of Admiralty in Eiia- land, as restri. ted by the Statutes of Uichard the 2d., and the derisions of the Judges thereupon— That these deci»ioii,t were not binding upon llie Court, «nd could only be referred to as written reason— That the discussions belwe*.. the Metropoli|an Courts turned upon points which were inapplicable to Colo- nial Courts- 1 hat the resliiction under the I3lh Rich. 2, %v«8 intended to prpfent the Admiralty from intermeddling with thini(s done within the realm of hngland, and to confine its jurisdiction within the limits assiifned to it in the time of Edward 3d, as appeared by the 2d Henry IV, c. 1 1, which re- enacted the I3ih Rich. 2d.— That the Kespondenis, though the* did not'ref..r lo the Statutes of Rich. 2d, et idently rested the second ob|ection of the Act on Protest on the l3lhRich. 2d, which was not applicable out of Ennland— Ihat in order to maintain this objection it was necessary to show that the Courts of Kin^♦» IJi-nch of Lower Canada had the same powers as the Courts of Lommon Law in England- That in m.il&ing use of the terms-JwMm Me body of a County— m the sense in which it was employed in KngLind, it was not competent to the II. spondents to substitute the word District for that of 6om». ty—That marinr- torts were not included in the Stiilule of 13lh Rich 2d and Here therefore not excluded from the Admiralty— That from Sir Leoline Jenliins argument before the House of Lords, in relation to a Bill to ascertain the juimliction of the Admiralty, it appeared that the Admiralty in that time contended for a much more enlarged jurisdiction than the Common Law Court* That the Statutes of Rich. 2d were not receited as Law in the United Stiitei although there the Common Law of England was in force and could apply a remedy in all cases out of the juiisdiction r,f the Admiralty— That in Enaiand all the nafigable ri»ers were within the ^ lies of Counties; that this was not the case in J.ower Canada, and that the dec sioos of the Common Law Courts ill England would not therefore be law here.— That by the eighth clause of the' Judicature Act of '93, the powers of the Courts of King's Bench in Lower Canada were defined to be those of the Prevdtd, Justice Roi/ate, Intendanc or Superior Council before the conquest— That by the riglement of 1717 French Admiralty Ciurts were established iu Canada, possessing exclusita* jurisdiction over all the causes of action mentioned in the Ordonnance de la Martneof 1681, within the ebb and flow of the tide, and as high up as the spring.tldes in the month of iWarch— That the limits of the Districts compre- hended no part of the Rifer St. Uwrence with the exception of the islands— That the Commission of the Admiralty Judge invested him with maritime juris- diction as extensive as that anciently exercised by the Admiralty Courts, and that the jurisdiction does not depend upon locality but on the subject matter- That if the Colonial Courts, as stated by the Respondents, be mere emanations of theHighCourt of Admiralty,then thelmperialStaluteof 1840, gave jnrisd'-lion to this Court in the present cause— That by the sixth clause of the Imperial Statute 2dWm.lV.,c. 51, which was intended toobviate the difficulties which had arisen in Lower Canada, from the conflicting decisions of the Courts of Vice Admiralty and King's BeneL, respeciing the jurisdiciion of tiie former over causes of action arising on the River St. Lawrence, within Lower Canada, the jurisdiction of this Court was greatly extended, and that power was conferred / upon ll lo try cause* of action occurring in any part of the Riter St. Uirrencf, either wiiliin or beyond the ebb and flow of the tide, proiided the matter or »e«el came within the local limili of the Court, that ii, within reach of ita process } and that therefore, even on the supposition that all the atlegationi of fjct contained in the Act on Protest were true, the Statute in question would •till gitc junadiction to this Cdurt to take cognizance of the present cause. Geo. IV. c. 73.— Stats. 13 and 15 Uich. II, and 3 Henry IV.— 1 Jenkins* li/e pp 77, 70 —I Bell. com. 487.— Gallison 11., 420, 463, 470— rOelovio «. Uoif.)— '2 llrov»n,pp.93, l22—^ Doug. 607. Proclam. of 1703.— Imp. Stat, n Geo. III., c. 8.1.— Pro». Stat. 34 (Jro. III.., c. 6 and 8—1 Valin. Ord. de la Mar. pp. 1 1«2, 127— 2 lUd, pp. ft7l.— 2 VVm. IV., c. 61 — Siuarl II. 013.— Com. Di^. V. Adm.— 3 aed 4 Vict., c. 65.— Kent Com. 368,360. —3 Am. Jurist 56.-0 Wm. IV., c. 4.— Ca»e of the Henrietta Sophia. Vic« Admiralty, Quebec, 1843. Mr. Primrose, in reply, contended, that the descriptions of the Counties of Lower Canada, necessarily included one-half the River, in as much as the Islands opposite to them were comprehended, and that the whole Province being by the Judicature Act divided into three Districts, the poition of the River St. Lawrence which is found between the rcspectire points designated on the line in the respective Disiiicts is necessarily included — That the juris- diction of the Court of King's Bench had been constantly exercised ever sines over criminal offences committed on the Hiver, and judgments rendered in that Court in these respr clive Districts, in numerous cases for capital offences, as in Larceny on a navigable river; and recently the Courts of King's Bench of Quebec and Three Uivers had entertained jurisdiction over a case of capital felcny, charged to have been committed on board a Steamboat in the River. But the main question in this cause was whether the collision took place within the ebb and flow of the tide, and that the case referred to by the Court from the 6th Peters* Cond. Reports, Sup. Courts, PJ. S. touching the influence of the tide at New Orleans, shewed that there was there a tegular and constant rise and fall of the water, and that it was very difi'erent from this case, i^ke St. Peter and the Mississippi not being in the same condition. That the Ad- miralty Courts in the United Slates did not extend their jurisdiction beyond the ebb and flow of the tide— That the enlarged jurisdiction given to Colonial Courts referred only to revenue cases — That this Court must be governed by the Admiralty Laws of England, and that the terms of the Judges Commission were necessarily restrained by the decisions of the Courts — That if the case were tried in the King's Bench, the parties would be entitleii to a trial by Jury — That the rigUmens and Ordinances of the French King were supersed- ed by the introduction of the Admiralty Laws of England — ^That the second clause of the Judicature Act gave jurisdiction to the Courts of King's Bench, in a// causes except those purely of Admiralty Jurisdiction — ^That under that clause the Courts in this country granted Writs of Certiorari, &c.— That aU tliough the King of France extended the jurisdiction oi the Admiralty to high-watermark, in the spring tides of the month of March, it did not follow that the English Admiralty Courts could extend their limits to the same point —That the Cpurt of Vice Admiralty maintained jurisdiction in the case of the the action of the tide, and the affidavits on both sides in this case, abundantly Lftirrencr, i mailer or reach of ila egalioiH of lioii would It caute. I Jenkins* -CDelovio 63. — Imp. ~l Vttlin, I — '^luari 368, 360. )bid, Vice 'ounlies of ch at tlie > IVotince on of the iesignaled llie juris- ever linca ed in iliat icei, aa in Uencti of of capital lie lliver* tee within Durt from luence of I constant ise, l^alie t the Ad- >n beyond Colonial erned by tmmission the case t trial by lupersed- B second 's Bench, iider that -That al- liralty to ot follow me point tse of the uebeCfby undantly shew (hat the rise of the waters in Uke 8i. Peler was teiy uiicrlain and hy no means surh as to bring it within the meaning implied by the terms /lux and rejltix of the tide. •' (JUDGMENT.) The present case is one of extraordinary interest iind importance whether we regard the magnitude of the sum »oui{ht to be rero»f red, (a) or the extreme nicety and difficulty of the point of jurisdiction Involtpd in it ; and itsimpnr. tanre was assuredly not lost sight of by the Counsel who conducted the cause on either side, for it underwent a *ery long and elnborate argument. The protest to the jurisdiction of this court is based upon two separate and distinct grounds : — First— That the collision between the Steamers Queem and Loud Stdbnham happened in the Uiver St. Lawrence, »i a place within the body of the County of St. Maurice, and within the body of the District of Three MiTPrs, and consequently within the excluklte jurisdiction of ilie Courts of King's Uenrh of l^wer Canada. Secondly— That the place in question is beyond the ebb and Qow of the tide ; and that therefore, neither the High Court of Admiralty cf England, nor the Vice Admiralty Court of Uwer Canada can take cognizance of it. The point to be determined in this preliminary is^ue involves the right of this Court (o exercise jurisdiction over the present case. My enquiry will be directed in the first instance to that objection which is predicated upon the site of the collision, namely, that it is within the body of the District of Three Rivera, and within the body of the County of St. Mau- rice, and therefore within the exclusive jurisdiction of the Courts of King's Bench of Lower Canada. I presume that the terms »* within the body of ike County of St. Maurice,^* have been made use of In the Act on Protest for the mere purp . < of bringing this objection within the language of the terms adopt- ed in KngLrtd, to denote the exclusive jurisdiction claimed by the Courts of Common Law, over causes of action arising infra corpus comitatua ; and that no greater stress is intended to be laid on this term than that which is implied by the other expression used in the pies, namely, uithin the body of the Dis- trict of Three River?, which, according to the territorial divisions of Lower Canada for the purposes of judicature, corresponds with the terms of the Eng- lish Jurisprudence,— «» within the body of the Couniy." The latter expression then may be dropped in considering this objection, as the former one,— *' within the body of the District of Three- Rivers^' will serve all the purposes of the authorities cited by the counsel for the Respondents, in support of the exclusive jurisdiction of the Courts of King's Bench of Lower Canada to try the present cause. ' From the affidavits produced on both sides I assume as proved, that the col- lision occurred in Lake St. Peter, about two miles and a half below a place called Yamachiche, and about four miles and a half above a certain other place denominated Pointe du LaCy or the lower end of the Lake, aod about three xallcs ffom the north shore. (a) i?lO,000 sterling. \* ) . ^•'^ .; 'J" *'°" '•''•^»' » (oond^d upon the /wrw, in gvo of th«« rollUton \i fuV... , V / * '"''^'.V'V »>«»"« •»cerul,uble without .he ...ceisity of •«|Im.*'' *^'*"*'''''""*»" «f *»>'• «'•' "bjecllon, ,e,er.! point. prc.cH. them. bocu'ofTh? d!..1L^ Irrh'^ V^' 'f"'T' "PP«J"« «» •« bewithln.ho IvZf n,^Jc \ r i: '" f.''"l' /'" jori.dic.ion,ln rr„.rd (o .he pre.e.,1 llw"; C. .13. 7; n ^ King', Ucch for .h..t Di..rlc., or .ny o.hrr Di.Ulc. i.. JHiwer (.«,,ad«, lo the eiclu.ion of the juH.diction of this Cour., .uppo.i... In juriMJic.ion not (o be otherwise impugned ? ' •u|>po»iiig WMw fi^T^:" "", '"PP"''''^"" l''«t the /octtj in quo may be found to be ^ithaut the l.mit. of the Di.trlct of Three lliver. have our Cour .0 kL'! Hench under the Law. of Uwer C«n«d« .till juriidictlon, exclu,?,e o/Z- conreni, over the .ubject matter of thi. action ? Thlrdly—Whai .re the power, and attribute, of the Court, of Kln«'. Bench F^ZlFrm^tu' f 1 *'^ "•"'••' »'"»»-«-'>y,of .heir j«ri.dic.i*on S-JnS l'ourthly--pid the colli.ion .n queilion, a. a matter of fjcf, happen within the l.m.t. of the Dl.trict of Three Hirer., or of any other Ui,t,lc. Althooghthe jurhprodenceof England furninhe. innumerable instance, of rluZ\7c'' '• '"/heir re.pectljejurl.diction.. be.we.n the (our,. of A.lmU ralty and Common Uw, from which .ufficirnt lights might be expected to be procured, to facilitate the decision of the present cau.*,-the qu«Vlon a. It now pre,ent. it.elf before the Court, I. b..et with no common diS,;,' a rl.- log from the nece..jty of applying the Statute., judicial deci.ion., ayrllJ.of whVh !?"• ' -""^'I' '° 'r.*"" '"^'^ ^'"•"'''" '" 'he circum tance. upon whhh he jur..prudence of the former ha. ari.en and been formed. ^ i« ?1 !ui T^'"! '""^ "*•"!. °^ *••' Admiralty juiLdiction of England, prevlou.ly to the thirteenth century, little i. known-and It might have cont nued for a much longer period enveloped in the aame degree of obscurity, were it not for he contention, between the Admiralty and the Common iJawJoJl The encroachment, of the former gave umbrage to a people enamoured of the trial by Ju.y, and produced a reaction resulting in the enactment of the retraining ioluT , "" ''"r I'"' ^'T*^ "•"' "^"'^ *'"' ''«""»', In the end of the four? teen h century wh.ch were de.igned to confine the Admiral within his ancient ComZT"'' r^"'''««'-- 7''e forced interpretation of the.e Statutes by fhe Common |.aw Judges, caused the almost total annihilation of the Admiralty Hal h'v r ; "ui^" j"'""'^ "^ '\ *'^"«''''' P^'^P'^ °f «"> invasion orthS t nal by Ju.y, ..I hough a very powerful and plau.ible reason, i, scarcely suffi- clenf to account for the fl.me of contentio.. which r.ged .0 long between the r nrtrjerc'Si'eT"* — *» ^''- '~' cusefo/rrr: While the Common Uw Courts, though fettered by locality In the eierri.e I ,..5,a„t., awugaicu to mrmseiveft nevtriheiess, by the use of a fictton, the right of taking cogniiancc of contract. andolheV tMngs done be' thit rolHWon M inaiion by ihi« , ■11(1 the ollii'r ilhiii Ihe body e iicccfsiljr of irricni them- be wilhiii the lo the pr«'ieiit irr Dintricl in r(, luiipoiiiig e found to be urii of Kiiifi'i usive or con- Kind's Bench iciion ? — and appeii within (. i instance! of irtiof Admi. peeled to be ueition, ai it ficully, arife- I and rules of itances upon I. i), prevlouity tinued fur a 're it not for ourts. The I of the trial i restraining of the four- his ancient tuies by the } Admiralty ion of their arcely suffi- »elween the sf a nature he exercise ning within he Nse of a {s done bc< yond the seoi, and In forcl«n countries, they, at the same time waged • rar of rxterminulion against the Admlraliy Courts to such a degree, as to deny to thai Court tht connitance of mutters in their nature palpably of maritime juritdir. tion, and o»rr whiih it had formerly exercised, confessedly, an undisputed control ; and they only condescend«-d to tolerate the cogniiance, by Ihe latter, of suits for seamen's wages,— a mutter eminenlly of Admiralty jurisdiction,— •■ an eiception to the general rule, and an indulgence lo that class of people. It is manifest that had the line of lemarcation between the two systems been bated upon some abitract principle of law,— such as allowing the Admiralty an exclusire, or concurrent jurisdiction, over contracts and causes of action essentially maritime in their nature, and requiring Ihe proverbial celerity ol the proceedings in that court, with its remedy in rem, and the known equity of its rules ;— or had the Common Law Judges adhered more to the aplrit, than to the leittr, of an enactment of a comparatively rude period in legl»la« tiooj—the contradictory, and in some instanres, preposterous decisions and rulings of subsequent times, would have been afoidci , and the jurisditlion of the Admiralty Courti would have been handed down to us wllh well defined metes and bounds, precluding the necessity of the continued interference of (he Legisurelat in modern times, in order to repair its crippled condition, and to restore it to rational and practicable limits. This, however, is not the only instance in Ihe jurisprudence of Kngland in which Judgc-made-Uw has been permitted to alter, or fritter away, the written Statutes of the land. With the origin and history of the Admiralty jurisprudence of England, however, I hate little or nothing to do. Though the decisions of the Courts of that country may seem lo have gone beyond the Law, and the Statutes of the Realm, they must still ha,e a binding e'ffect,ln as much as the Legislature must be presumed, after a great lapse of lime, tacitly to have acquiesced in the Innovation.— My duty is to administer that law as I find it in forca in Uwer- Canada, regard being had to Ihe windom of modern decisions, and such statu- lary enactments, as may have modified, altered, or enlarged the Jurisdiction of (his Court. The subject matter of the present action necessarily excludes from my con- •ideration a numerous class of cnses which have given rise lo many of the strug- gles between the two Courts in England. — No question arises hereof aeon- tract made on ihe land, to be executed at sea ; nor of « contract made at sea, to be executed on the land,nor of anything done — partly on the sea and partly on the land, nor of any of the other fractional and unphilosophical tests, or quibbles, which have been invented, under an unreasonable construction of the Statutes of llichard the Second, with a view to circumscribe the juri»dic- tion of the Admiralty within the narrowest limits. Cases of collision between vessels under way are perse essentially of mari- time jurisdiction, and there is not an instance, even in England, of an attempt to restrain the Courts of Admiralty from taking cognizance of suits of this na- ture, apart from the grounds of objection which may have been orged as to the place of their occurrence. I shall first proceed to show what would be the fate of a case of this nature occurring in England, within the body of a County. As the Statutes of Richard H. and Henry IV, are the breast »Qrk which was set up against the encroachments of ths Admiral's jarisdiction, and as they V 10 ^' InlSiu * 'Ir '• r"~" ^'**J '^''*^* "*•' ^'*'"^»> -'"J »»" Deputy shall « ^ • ♦tT^'K""- r**"*" "'""'* "* «^^»* ""^^ common clamour Ll com- plaint hath been often times made before this time, and yet is, for the Ad' m.rals and the.r Deputies hold their Sessions within diJers p aces of Vhis .h ? ?r" *"»''V'»»^hise as without, accroaching to them greater a u! honty than belongeth to their office, in prejudice of our lord the King and J he common law of the realm, and in diminishing of di.ers franchise.: and in destruction and impoverishing of the common people, it », accorded and assented that the Admirals and their Deputies shall not meddle fomhenc^ forth of anything done within the realm, but only of a thing done upon the 'AfH^'') been used in the time of the noble Prince King iSl^ard! « grandfather of our lord the King, that now is." * '^vaia, « u ^""^Hu "' ^•"'" f" what p/ace* the Admiral's jurisdiction doth lie.^ «: i„ I ;i./v ••*''!!* """^ *"^'°" complaint of all the commons made to our lord the King in the present parliament, for that the Admirals and their De- puties do encroach to them divers jurisdictions, franchises, and many' other proBts pertaining to our lord the King, and to other lords, chiesand bo- roughs, other than they were Wont or ought to have of right to the great op. pressiOD and impoverishment of all the commons of the land, and hindrance .c ^u IM f^'"* ' P'°.^''» ■"'^ °^ ""»">' °'*'" 'o'^Js, cities and borougha through the reaJm-it is declared, ordained and established, that of all mao- « u^A' contracts, pleas and quarrels, and all other things rising within the rfi'l.?- k'"!'* ' ^T' "'•"" ^V "° '"''°"" °f cogniaance, power nor jo- risdiction, but all such manner of contracts, pleas and quarrels, and all other things rising within the bodies of counties, as well by land as by water as afore, and also wreck of the sea, shall be tried, determined, discussed and remedied by the laws of the land, and not before nor by the Admirr' „or « his lieutenant in any wise ; nevertheless of the deith of a man d w rLlT . .°"* *" r^^ "*">' *»"•"« «"<^ ''°^""'8 "' the main 1^ stream of great rivers, only beneath the bridges of the same rive.s nigh to the sea, and in none other places of the same rivers, the Admiral shall have TJl'^iP'"' * ^"a ^'l *° "''"*^ '*»'?* •" '''« 8'"^ flo^es 'or the great voyages of he King and of the realm, saving always to the King all mfnner ofZ. « ZnZ Zirl ' '^T^ 'T '"«' '"^ '•" ^^•'»" *•"« -••<> J«'»d-c«ion upon the said flotes during the said voyages only, saving always to the lords. cU ties and boroughs their liberties and franchises." * p ?' J^A*!. ''■ ^V■"'^^ ^"^T^y ^®' *•••" ^""^ •» wrongfully pursued in the « .h°"/KW Adm,ralty.--Item. Whereas in the Statute m*ade it Westminster! « the thirteenth year of the said King Uichard, amongst other things it is r ; /k ' r'* »»»« A'^'"''^'- «•'«* their deputies shall not intermeddle from ,r'l°'*^ "^ ""^ * r"« ^°"" ^''''•" *'»'' "»••"' ''"t only of a thing don" upon the sea, according as it bath been duly used in the time of the noble «c -n ^ ^ * ' grandfather to the said King Richard, our said lord the Kiuit will and granteth, that the said Statute be firmly holden and kept and puf in due exectition ; and moreover the azmt^ nnr lord *h^ b5„„ i,,. *u_ , j_" ; ..d co„»e„. of .l,e loni, spiritual .ad .e«,p-or.i .,.d ,"uh'e ^i^^r itTo »ld commons halh ordained and eslablishcd, that as toacMng a Jain to b« .( (C « it ii irally c;i«ps, I Deputy shall our and com* I, for the Ad* ilaces of this mgrrater au« the King and inchises, and accorded and from henre« me upon the [ing Edtrardy n doth lie.---* made to our ind their Oe- many other iiiesand bo- he great op. id hindrance nd boroughs tof ailinan> ; within the vreck of the »wer nor ju« md all other by water as scussed and \dmir?'' nor a man d the main veis nigh to I shall have eat voyages ner of for- iction upon le lords, ci« sued in the estminster, things it is eddle from thing done f the noble [1 the King pt and pat *l l_:_- tuc auTIUC yer of the pain to be '< set upon the Admiral or his lieutenant, that the statute and the common •* law be holden against them, and that he thatfeeleth himself grieved against " the form of the said statute shall have his action by writ grounded upon the " case against him that doth so pursue in the Admiral's court, and recover his <* double damages against the pursuant, and ths same pursuant shall incur the " pain often pounds to the king for the pursuit so made if ho be attainted." It will be observed that the first statute reiates very generally to the suhjert matter of the Admiral's jurisdiction— '< What things the Mmiral and hisde- ptUy shall meddlCf** namely, of things done on the sea and not of any matter done within the realm. The S'-cond statute passed two years after the first, although entitled^—" In what places the Admiral's jurisdiction doth lie," relates as well to the sabject matter, as to the locus in quo of the contract, or thing done, and forbids the intermeddling by the Admiral of any contracts, pleas or Complaints rising within the bodies of counties by land or water, &c. If is re- markable that although the Statute of Henry IV., which was passed scarcely ten years after, an' nbich rt-enacts the Statute of the 13th Kich. If., and ren- ders it penal m bi. ^ suit in the Admiralty contrary to its provisions, seems to Overlook the stringent enactments of the Statute of the 15th Richard II,— ne- vertheless the Judges of the common law, in their zeat for the aggrandizement of the jurisdiction of thert ow' of Kent. 1831— The Lord of the Isles cited, 2 Hagd. p. 398— A rolll or sion in the Solent Sea, a chanVl fro'm Iw"; foLe„ mt." be ^l.h- '?k' V*"' '^'^ °f ^^'S*^* «"d Hampshire, beW to nf«h M 'M**' ^.°""'^ °f Hampshire, on the supposition llamn i^ ''' iV**" ''"'""^* ^«''"'' P"' °f the County of llainpshi r. I ha»e not seen the Report of this case,and this 1835 tTTH' "A'^. ^'^"♦^""able eyen on English authoritie 1832~r hePubhc Op nion,2Hagd.398-A colli'sionin the Hum. I836-.& S f ; '3 Ha;r^;"%f/TcT"^°"-"f R!.— 1'u » o ndgd., p. d35 — A collision on the r«n!!r """j ,"*"*!'" *^« J»"3diction of the Court of cj. ,. . ^onserTancy of r^ondon. "u"oi bince the passing of the Jst and 2d Geo. IV., c 75 spc ^9 *!,« • • j- B:^i:;:.«:e^t;ffih:^s?::'^'c^«T^ ^S^-^ ?^^^:^t ed on principled orirternatlon»?'L'''^ ""^''^ ^''^'P' previously exist- }^^,^'foU:f^,:L^^^^ ; and we foreign vessel bound to Norway, in 1828 2 Hacd n Tfif ./h ^^^f *"a, a Austrian vessel, in 1834. 3 Ha«d n ifib "rf J ^' ^^3— ^^^e Girolamo, an curring in the feirer Thames wiihln^'hlK'TT..''"^ '**'" of collision oc 1840, the jurisd ctVon of the llthC J°^'" ^^ 9o"n«ies.-And 1,^ the year largedbytheTdand4thV^^^^^ c^L k-"/ ^d-niralty was still further en- and i. wo'uld ..em r.m'''ZV" "o^lh"": '° 'VT^ "> S"t.and or freland, •ions of thi. coa-f are to h. 1„",„,H " ' l" •" 'J"" '"* "^ '"'''^'' ">« <""i- .iloation and cooditVoVofte Canada J^f " 'm' '"" ^ '^P^'""^'' '» "■» Ma„,6eld i„ ,he case of iTdo . Rod„V-'- xTa.^^^^^^ Oio.am of Urd cunmonand statute law of PnaUnT ;• ., *"** *"® ^°'°"'^^ ^'''^eall the Hon J" regard b^ng always had'toanvT-?r' '" '^"^ «'"'^'*^ ""'^ ''^^^' have Wn^Stibsequfnl TodifieJ ''"^. J8'; ^^"'V^^t'nents by which it may occurring in England "wirhJn the h«Hi.. r "P^'^ ^'''" *° ""« "^ "^o^'i^'on from the'statuteVof iic'd 2 tdlwn^^^^^^^^^^ iTfsTt'her "• '''*'^' ^T '^' and up to that period it wasUtIP 1 il„ fi7!.u '^''^ decisions are uniform, ed exclusive jurbdicUon Ter them Th J^^^^^ °^ "°'"™°" '^^ P°""^- ed in these clses, not fr^anv acilnwf. ^ /^^"^ ^^'^ ^''" ^"*"'»- suits, raUonema)eZ,VrrZn7^T^^^ '''Tl J""^^'<=t'o" o^^-" s-^h »ion,)as the site of i»? n«n„i T. *"^*»— f*"^ as well the cause of action,(colli. jurisdiction, whe?rver U IttXd Vp. ""?' °^ 'T'"°" '**' t^*' ^^e land Admiralty. 'TheTameL J. Is^^^^^^^^ the jurisdiction of the the courier common &^:;'!j;^^;:;j-s ili^^^r ^ {tt:::::^ 5 — A cojlisSoif .f Kent. 398— A colli- to seven miles pshire, held (o le supposition the County of 9 case,and this sh authorities, on in the Ilum- an-upon-HulI. Ilision on the the Court of the jurisdie> ign vessels to viously exist- ifd ; and we Christiana, a Girolamo, an ' collision oc» d ii» the year further en- 5nt jurisdic ) happening thatfhedif* 1st and 2d or Ireland, ovisions are as it stood ch the deci- cable to the um of Lord take all the and condu hich it may >f collision ish Tesselitj re uniform, tw possess, m restrain* over such tion,(colli. risdiction ; \l the land on of (he , provided > (he same IS . felatJon to each other. In respect of the laws and jurisprudence of each, as th6 sanie courts do in England. Let us then enquire how far the systems of law in force in England and Lower Canada correspond, and whether the jurisdic- tion of the common law courts of this country adheres so rij{idly to the locality of the contract, or thing done, as to repel, and entirely exclude, any other ju^. risdiction ; and whether the term infra carpus comitaiks is to be applied by our courts to the jurisdiction of the court of Vice Admiralty, with the samfe repellent force as in England ; and whether the situation and condition of the two countries are so similar, as to render this term susceptible of being trans- planted into the jurisprudence of Lower Canada, and of being adopted as a rule of law, io the same extent as in England— The mere enunciation of the proposition shews that it cannot be embodied, to the letter, as a governing principle in our system, and that we must adopt the term, within the body of a dtstnct, as that one which corresponds most nearly, according to our territorial divisions, with the import of the English phrase. Being driven to abandon the letter of the rule,—" within the body of a county^ '—and to substitute the term body of a district in lieu of it, the next point is to define the precise limits to be assigned to this rule, regard being had to our system of laws. The Court of King's Bench in England exercises jurisdiction over the whole realm, but the matters of fact involved in each case must, as a general rule, be tried in that county alone where they have arisen ; and although it is permitted to evade this by a fiction, laying the ve- nue in another county,--still this fiction confirms the principle, and th-s Jury must be taken from that county in which the venue is laid. In Mostyn vs. *abrigu8, (Cowper, 176) it was said by Lord Mansfield ;— « There is likewise a formal distinction which arises from the mode of trial ; for trials in Eng- « land being by Jury, and the Kingdom being divided into counties, and each county considered as a separate district or principality, It is absolutely necessary that there should be some county where the action is brought in * particular, that there may be a process to the Sheriff of that county, to bring « a Jury from thence to try it." The records of English decisions show, that If one act of aggression be more strenuously resisted than another, it is the In- fringement of any particular liberty, franchise, or local jurisdiction whatever. Hence the origin of that principle of locality, even in civil matters, which has so much distinguished, and in some instances, so much embarrassed the juris- prudence of England. The difficulty in the controversies between the courts of Admiralty and common law, has been greatly aggravated in consequence of the counties bordering upon the sea, and great inlets and rivers, having no cer- tain fixed limits, and the necessity of establishing their l)cal bounds, by a reference to usage, such as the distance at which the process of the courts of common law has been usually executed ;— as occurred in the case of the Pub- lic Opinion, already cited from the 2d Hagd., where the extent of the local jurisdiction of the town and county of Kingston-upon-HuU over the River Homber formed the bone of contention. How then stands the case with us ? — Instead of one Superior Court of King's Bench In Lower Canada, exercising civil jurisdiction over the whole extent of that territory, we have three courts of equal powers, exercising iurisdiction. each within a particular district,— the precise limits of which are defined by statute. Instead of having any particular jurisdiction attached to the locality of the contract, or thing done, the domicile, or the personal service of the process of 14 !he court, within (be bounds of any one district, upon (he party proceeclea «fia.nst, enables (he court of (hat district (o take cognizance of'^a 1 c?.7cau8e It follows (hf-n, as a legal consequence, that the court of King's Bench for amen wi.hm its limits, acquires (hereby no exclusive jurisdiction oter if the courts of King's Bench of the other districts,would acguire juris.licdon over the subject matter of this suit, in an action in personam, by the serv ce of th«^' process, within their own limit,. And U can'^ scarcely be r«b,ertha even Lie cf'JhT "^''''r ^'^^rj^ "^^"'"^ '^' '■•"•»» of J^^^*"-- Canada (he pre. •ence of the wrongdoer, within any of these districts, would enable he cour of King's Bench for that district, to try the present cLusp R^n J„ P i . ^here this distinction of locality' is so CchSll eS^ thf ;rocefd?n« o? ^n\ tT'^^ *^'^''''^ never hesitated to take cognl«ancerby the "doD- tu>n of a fiction aying the venue In a particular county I-of tre oaLs a, 3 countries. This doctrine i^as fully laid down by Lord Mansfield in the cases tfllT. "' £"•;"*'' already cited, and also in the cases of 1 e Ca " Is! Kden J-ect ; also o t ^'hT'^'^ ^I! '^°"«'"» PP* '^* ^"'^ ®'3. The same ub" Ed nfiiii K found d'scussed at great length in Story's conflict of Laws th;H ^^f/»^^T' "P"" '5* authorities cited from Boulleiois, he shows thaJ the domicile of the wrong doer gave jurisdiction to the courts in France to try Whafr/nT' **»'»^»r«""'"g o-t of the limits of the kingdl ' ^ it- i.°lL ''"»»«'''"" •>«««.■ Ihe respective jurUdiction, of (he io °m of r»a! ^ °''' ■*"'' ""^ ':''°"' "f A-finWy in Lower Canada ' WheS.?, iclhr fa- is ' '.""{"'•' " '' ""■" ■"""""' '•'•' " «"»"' b« adopted a. a r«7. if XciSt"„v.rL^r..rd't^; i;fe:fSil.tfd""' rtlf^^i-r^^^^^^ car., of j.dl«.„re doe. not adher^ wUh ."ch t™.ti.y ,„ ,ri„cT."„°/ ?H°' .u«.ptib.e of .r.nspl.„ta,i?„t o ,t atoXui "oU of \^t ""'i" ""' .»d .«,ht to be e,p„„ged from our leg.r°„caCl. '"' J""'P'"'''"«. wi/hfn"SeX,tr.f'Ti;;:e' ar::?he cot. T^^'t iv^j"™..'" •» .c,ui,„ thereby „o ..cfa„« j-^utctr. ol" ".* a!^"','" L°aV. ^ o "tta' p:vr:r„z=x;'7cSf/^jrarj^^^^ »ua.d »« t„e do«.icile,„, the preseuce of .he par., proceeded again,,; wUbT,.' i( <( (( l( (( rty proceedfil li civil causes •egard to the n of the rule fs Bench for I case to have !tion o»er It. equally with isiliciion over rvice of their ^d, that even ida. the pre- mie the court in England) oceedings of jy the adop* isses as well IS in foreign in the rases lux vs. Kden- le same sub* ict of Laws, ; shows that ranee to try aids of the legal import 'o point out le courts of hen strictly as a rale of at salutary lotion of our ility of the based upon' exercise of hen — infra exotic not sprudence, stion to be hat district sr of this d in Kng. t the only district, or *U\a ist, within their renpectlve limits, and that for this purpose it is perfectly immaterial whether the Injury was inflicted tcithin those limits, or tcithouL or even bej/ondthe limits of Lower Canada. So far then the jurisdiction of this court if jurisdiction it otherwise have, stands unscathed. ' I shall next proceed to trace the powers of the courts of King's Bench of l^wer Canada, and the limits of their respective jurisdictions. By the 34th Geo. Ill, cap. 0, commonly called the Judicature Act, the then province of Lower Canada was divided into three juridical districts, namely Quebec, Montreal and Three Rivers ; and it was enacted, by the second section of that statute, that in each of these districts, there should be roniiituted a court to be called the Court of King's Bench, and which courts, in their respective rfis/m/*, should have original jurisdiction, to take cognis- ance of, hear, try and determine, in the manner therein enacted, all cases, as well civil as criminal, and whe'ethe Kins is a party, except those purely of admiralty jurisdiction. By the eighth section of the same statute, the ju- dicial powers of the said courts are more minutely defined, and they are designatedinthefollowingterms:— « And the said courts of King's Bench ** shall respectively, in the superior terms aforesaid, have full power and " jurisdiction, and be competent to hear, and determine, all plaints, suits * and demands, of what nature soerer, which might have been heard and " determined in the courts of Prevdte, Justice Rot/ate, Intendant or Superior *• Council, under the government of the province, prior to the year one " thousand seven hundred and fifty-nine, touching rights, remedies and *< actions of a civil nature, and which are not specially provided for by the ** laws and ordinances of this province, since the said year one thoasand " seven hundred and fifty.nine,"--with aprovwo interdicting the exercise of any power of a legislative nature. If then we test the judicial powers of the courts of King's Bench by a reference to those transmitted to them, aader this section, from the courts of Prevdtii Justice Royale, Intendant or Superior Council, we obtain at once a clear and distinct line of demarcation, as between these courts, and the courts of admiralty, established in this country, previously to the conquest, under the J^ej^/emen/ of the French King, ofthel2lh January, 1717, which in- Tested the latter with an exclusive jurisdiction, conformably to the Ordona- ance de laMarine of 1681,ofer all matters relating to the building, furnishing, victualling, equipping, sale, and adjudication, of ships,— over all charter parties, and the freighting or hiring of ships, bills of lading, wages of marin- ers, and the board and provisions furnished to them by order of the master, during the fitting out of vessels,— policies of insurance, bottomry bonds, and generally over all contracts concerning the commerce of the sea, notwith- standing any reference to another tribunal, or the existence of any conflicting privilege :— Also of all prizes by sea, wrecks, damage to ships or their car- goes, and the inventory and delivery of the effects of persons dying at sea, and a variety of other matters, (including criminal offences,) enumerated in the different articles of the second title of the first book of the Ordonnance de la Marine. Thus the courts of Admiralty, under the arovernment nf Franre. «««.-f>u.4 a most extensive jurisdiction, and claimed the excliisive cognizance of a great variety of cases with which neither the court of Admiralty of England, or of Lower Canada, would Intermeddle. 16 But Independently of the more definite limiti assigned to the coorti of K.ngN Bench, by the elgh.h .eciion of the statute in qJe^tion, the «eie«[ powers conferred npon then, are pointed out in the .ccond sTc ion in Ian- goage more comprehenni^e, which gives to them original jurisdiction oJrai aTl'V.r''-''"".- ."'"'"^'^ ""^^^ "" exception, naLly/ of tt.rpC,y tai^i r V'""'^"*'° «'""*^u" ^'''''' '"'^"" °f ^''••^h exc:p.ion must be afceJ! Iritit'^hreiVht^lJiVn!"'*^ °' ^'"«'' ''-' ^^^^^ ''^ — -«'>- tins statute, was that jurisdiction which had been exerSdTn ttis coun ^ f„M •7;'.'''^'''"'""^^""'^'' simultaneously with the courts me«S in he eighth section, no difficulty could possibly occur in ascertS. the full extentof the exception. All the cases enumerated in LS nance 1 a Marine would fall under its ban. Although the marked bounds to the jurudic .on of the courts of King's Bench, indicated by the eLhth section might giye a colour to such an argument, theJe are still inLperable ob ectio"j to Its being adopted. The French Admiralty Courts, having a seneial ex elusive jurisdiction overall contracts concerning the commerce offhe se! "o Itll T,?''^"i •" '^' Ordonnance de la Marine,-the word «pu"L " If intended to apply to the French Admiralty jurisdiction, would be a redu" dancy in language, of which the framers of the Act of ITqI can scarcely be" TJT\'.° ^? H''' «"''^^- B««'^««> «t the period of the pass?n^^hi8 t'l^'^'^^^^^^^'y^^^r^ England had been intriduced n!o7rfoun tr,^ cludil'tlVr" 'T. '"'!'i"y ^^^"' ''"^ "« cannot for a mSmeTcoJ: ?n?o th.r U • ^ ^"'r"""" °^ '^°*'"'" ^""^^^ contemplated the introduction, i^lni- f '.r* ofasysJem of admiralty laws, at variance with those aU ready in force throughout the British Colonies. From the universal tv of the a one Briti'^h ""/"'"'^ °^ ''''' "^' indispensable. At leLt he ad^op iln! in one British colony, ofa system Qf laws, differing so much from the AdmU cess^ttfeTe d^"^^-'"^';"*^ °' *'^ Vice-idmiralt/ courts aSroaSr iouldne cessitate the decision of cases arising in the British colonies, between British TavrblrrntenT/'^'r °f ■"^--•--n-^^-aa anomaly ihich^„rer co d S«fc^ . i.^' In carrying out the terms of this exception then, ro- the Cour?« nf A7''-P'V°?"f ' °^"'*'°'* exclusively iithin the compefency^of the adm rLtv anH^irJ'^ "^ *^* ?"""">'' '" '^^"^-'adistinction to thos?, whereo BntitTAiZZ ^A?""'^' of common law have co«c«rre/,Mur sdiction iiut It is difficult to determine what causes are purelu or exclusiLl,, nf^A miralty juiisdiction, within the purview ol the ex^epul, uid'sTbe^PrlL 1" dis^rrfMl'/r^n/'i'^K^'*'" more ambiguous by its application to the formlrn ? ??°°*'^*'» '^"f' ]»'e county, or inferior district of Gaspe, in the former o which cases of admiralty jurisdiction could scarcely arise and th! latter being entirely a land jurisdiction, to which it would in no w's^ aoDlv unless, as said before, in the incidents of Prize. apply,-, werol'"S!:»?d'-*^^^^^^^^^ more difficult of solution, when Vto'te^t''"ThriiIJ''"i"'',""T''^'''P'''^^'^ to the sufficiency of the Act on frotest. Ihe Respondents allege that the site of the collision is within the IS ^otly of the district of Three Ui»f n, ami within llic bo«ly of the county of Sc. Mauiice. Mr. Stuart in reply asserts, that (he plare in question is not within the limits of the rounty of St. Maurice, nor of the district of Three Rivers, nor within the limits of any county or district of Lower Canada. The objection Is new, as far U9 I am aware, and the merit of its discovery is due to the ingpnuity and research of the learned counsel, who urged it at the hraringof this cause. In order to ?scertain the sufficiency of this objection, it will be necessary to enquire minutely into the teiritorial limits of the districts of Qu^-bec, Mont- real and Three llivers, established by the l».t Section of the Judicature Act already referred to. They are as follows:—" The said Pronnce of Lower- •♦ Canada, shall consist of three districts to be called the district of Quebec, « the district of Montreal, and the district of Three Rivers, which shall be di. *< tided by the following lines, to wit :-the district of Quebec shall be " bounded to the westward by the eastern line of the Seigniory of Dorvil- ** liers, asfar as it extends, and thence by a due northwest line to the northern '* boundary of this Province, on the north side of the River bt. Lazcrence, and " by the eastern line of the Seigniory of Saint Pierre les Becquets— a* far as " it extends^ and thence by a due south-east line, to the southern btundjry of *' this Province, on the south side of the River St. Lamrence, and the said dis- •• trictof Quebec shall comprehend all that part of this Province, which lies " J^ the eastward of the before-mentioned western boundary lines of the said ** district. The district of Montreal shall be bounded to the eastward by the " western line of the Seigniory of Masquiiiong^ as far as it extends^ and thence " by a due north-west line to the northern boundary of this Province, on the " north side of the River St. Lawrence, and by the western line of the Seig. " niory of Yamaska, as far as it extends, and thence by a due south-east line " to the southern boundary of the Province, on the south aide of the RiverSt. *• Lawrence ; and the said district of Montreal shall comprehend all that part " of this Province which lies to the westward of the before«mentioned eastern " boundary lines of the said district ; and the district of Three Rivers shall be " bounded io the eastward by the before-mentioned western boundary lines " of the district of Quebec, and to the westward by the before-mentioned " eastern boundary lines of the district of Montreal; and vhall comprehend " all that part of the Province, which lies between the said boundaries ; and *' the said districts shall also respectively comprehend all the islands in the " rive ^int Lawrence, opposite to the shores thereof, which are included in " the respective limits aforesaid.** From this it is apparent that the boundary lines which divide the district of Quebec from the district of Three Rivers, and the latter from the district of Montreal, eitend no further than the points at which the division lines of the Seigniories of Dorvilliers, St. Pierre les Becqnets, Masquinonge, and Yamaska, respectively touch the river St. Lawrence ; and the district of Three Rivers is declared to comprehend all that part of the said Province which lies between the said boundaries; and the districts of Quebec and Montreal are declared to comprehend all that part thereof which lies to the eastward and westward of their before-mentioned boundary lines, namely, the eastern and western boun- daiV iinPB nf lhf> rlialriri' n( f'hrPA RSvora I* nanwtn* ko r^mat^n'^siX t^~t 'I-- ^ ,• - - »• — - — ^.-— _„.-,3, ,. ._.„,, „.,i ^^ I'lTJicUufcu iiiai tsic beigneurial division lines in questioD cross the RiverSt. I^wrence, nor is there 18 a» they afe laid down on he M.n n? r n ■^""•' PO'itlons of Ihoie lihei, of that Vroy\ncl°7ud ZeLtl'I ^'^^ Canada, by the Sorffyor Genera me, -np.eteIyr.roy7uTa"p;:'„;^^^^^^^^^^ the Map U before ' Dutrict f9i 1 0/ Montreal. Yamaska t i 1 Matquinongi. \ 1 Like H St. Peter. DiUriet \ J f of Three-Hivers. St. Pierre. Diitrict qf Dortiiliert. Quebec. The eastern division line of the Seiifniorv of D«r.;ii: the western boundary line of the district of o.. k "'"'» ^'"'='' ^"""^ of the river St. LawLnce, striie th r e^^t^a^Tn'. ""k ^"^ r'"" »'''« below the opposite point'on the south side whi^ohf "'u^''"' """ of the eastern boundary of the Seigniorrof sr£/°™» the terminus and the line which would connect theselwo Ln!. ^!f"* '" Becquets ; transverse direction, at an angle! with the K„' T"*** ''?'' »*»« «•''«' «" » Iine,of about forty-five degree"! as la^d down iS o?eT"iV^ "'*'*" """"'^"^ iorfn L.^ ***"*"^ provisions of Lowef Canada, made eithf r f«r • . . juridical purposes, concur in this exclusion of the wat?r, if i. ^ *'''o***C" " zz:z. •""» •=•"■"'"•»" *""«•. .-■>-:"'r,;iVb'.'"r^;-x- mlolh, Pro,ind.l P.rli,.;.„,' "d.!.E?'Pc .?- J'""'"* ««P«>«'»'»'i'«« .-..-I.LI, o,.avr ..,c Cunstiiotwuu Act of 1791. Th« 19 (C <( iC waleri of the riter, as we would naturally expect in the furmalion of such imall territorial dif isions, are plainly excluded. The description of the county of S». Maurice, ai an instance, is as follows:—" The seventeenth of the said counties, to be called St. MHurice, shall comprehend all that part of our said Profince on the northerly side of the ri»er St. Lawrence, between the easterly side of the said county of Warwick, and a line parallel thereto, run- ning from the south-easterly an(>|e of a tract of land, commonly called the Seijtniory of Uatiscan, logethermth all the islands in the saidriverSt. Law- rence nearest to the said county^ and in the whole or in part fronting the same, including within the said county, the tract of land comprehended within the limits of the Town and Borough of Three Rivers thereinafter •* described." The next division is that into districts under the Judicature Act already mentioned. The Lower Canada Statutes 9 Geo. IV., c. 73 and 10 and II Geo. IV., c. 17, altered in some degree the boundaries of the said counties and districts, without nevertheless extending any portion of them over the waters of the St. Lawrence ; and the laft mentioned Act de- clares that the district of Three Rivers shall consist of certain counties therein menlioned,with a reference to the former Act 9 Geo. IV., c. 73,wbich as well as the Proclamation of 1792, shew that these counties are bounded by the nver St. Lawrence, and only include the islands opposite to each. The slutute 2 Wm. IV., c. J., which allowed debtors to go at large, upon bail, within the limits of the county, and the statute 6 Wm. IV., c.4, which extend- ed this liberty to the limits of the district, permit debtors to go on board of any vessel or boat lying in any ri»er within or o/>po«Ve /o the county, or district, from the limits of which they were bound not to depart. The Statute 47 Geo. III., c. 9, to prevent the desertion of seamen^ and whi«h provides for the ar- rest, under the warrant of a Justice of the Peace, of any seaman who may be concealing himself on board of any ship , has this clause :•—" XL Provided " nevertheless,, and it Is hereby also enacted by the said authority, that no- " thing in this Act contained shall be construed to extend to authorize or jus- tify the execution of any warrant or process of any Justice or Justices of the Peace within the jurisdiction of the Vice Admiralty of this Province, unlesH such warrant shall have been previously authorized by the Judge of the said Court of Vice Admiralty.'* The first attempt to include any portion of the river St. Lawrence, within the local limits of any district, was by the Ordi- nance 4 Vict. c. 45, which, though suspended before the period appointed for its coming into operation, is to be found on the face of the Statute Book. In describing the limits of the contemplated territorial division of Montreal, the lower boundary line is made to cross the river from the termination of the south-western boundary line of the Seigniory of Batiscao on the north side, un- til it reaches, in the manner therein described, the Bay of Yamaska, on the south shore. Thus, then, the waters of the river St. Lawrence, throughout its whole course in Lower Canada, are excluded from the territorial limits of all the dis- tricts, and if a doubt auld possibly remain of the intention of the framer of the Statute of 1793, lat effect, that i ubt would be for ever set at rest by the concluding words of the section which defines the Umits of each district * they are as follows :— " And the said districts shall also respectively comprV- hend all the islands in the river St. Lawrence, opposite to the shores thereof which are included uilhin the respective limits aforesaid. 'I \h 20 III coiisequonof of lh<» czrlunicn i.f (he rlf^r from (he .i.«^r.i ^». • . . «.. lished by (ho Judicature Art of 170^ Vh. .m«;V u V • ™* rt'«»r.c(ie»fah. limits of (he word '"»«re/iof i/W,«^ •'!'fi«-«>ty of interprHlng (he precl.. applied (he exceptional words (o (he dis(ru t of MontTAr 1?. u * '"' ''■' of (his, reference is made (o a case of felony chared inhabit * P'**°/ aboard of a S(e.m.boat on lU p..,a7?rU Xb c L T^^^^^^^ which was tried in both districts, ^ithotltany objec«o„ bdo* -Je^ To?!!/"^ iisdiction of (he court in ei(her diatnVt With J""-""" •**'"8 "*«" to (he ja- need hardly be observed", tliat^e' Sty ^^^rt^tt' j„S 1 thu" I' 18 one ttrtctissimi juris, and must be implicitly obserVed ^^.nff.. .k • ' "'" pressly deviated from by s(a(u(e. TheCt.rsof th« t I °'''"'^'»««- once an end of (he case. P°'"*' *••"■* must hafe been at (beir dimiiiishrd jurluliit-.m rouUI no» be invoked in aid of a deffcJifi" jurisdif. lion in (his court. •• The ri»il law count" (ut obsf r»ed by Lord Siowt-H, in »* Iheraieof the Atlas, 4 llagd. 62,) " have no right to uturpan nulhorily, merely because a common law court does not possess it ; it must have a " more direct and poKitive foundation. A court of ritil law dors not claim to ** be the refuse for all derelict jurisdictioos, and wheneter n court usurps a "j J""»d'<-lion that dofs not belong to it, a prohibition is i^raniable ex itebilo * juititieet and for the very purpose of correcting such usurpation, and pre *' serving the subject courts within their proper limits." With a view to determine the extent of the jurisdiction wiih w hich this court has been invested, it will be necessary to refer to (he powers originally conferred upon it. The first establishment of nn Admiralty jurisdiction in Canada wis in the year 1764, a' a period when the Crown of Great Britain had an undoubted right to give Lws to this country. The terms of the Commiision addressed to Governor Murray, as Vice Admiral of the Province of Quebec, authorise the Vice Admiralty court to take cognizance of all cases, civil and maritime, of complaints, contfacts, offences, crimes, pleas, debts, exchanges, accounts charter-parties, agreements, suits, trespasnes, li>jurie8,extortions, and demands' and business civil and maritime whatsoever, in and throughout the Province of Quebec, and territories thereof, and maritime parts whatsoever of the same, and thereto adjacent, and also throughout all and every the sea shores, pub- lic streams, ports, high-watei rivers, creeks and coasts, or places overflown whatsoever, within the ebbing and flowing of the sea, or high water, or upon the shores, or banks whatsoever of the said Province of Quebec, as well with- in liberties and franchises as without,"— and in any matter, thing, cause, or biisiness whatsoever done or to be done within the maritime jurisdiction afore- said, and to hear ind determine the same according to the rights, statutes, laws ordinances and customs ancten//^ observed ; also in all and singalar complaints' contracts, agreements, causes and business civil and maritime to be performed beyond the sea or contracted there, and in oil causes and matters which in any manner whatsoever touch or concern, or anciently have, (belonged,) and do or ought to belong, unto the maritime jurisdiction of the said Vice Admiralty coort, and in all causes, mattery &c., done, or happening within the mari- time jurisdiction of the said Province of Quebec, and territories, &c., by se» or water, or the banks or shores of the same, &c., also to arrest, and cause and command to be arrested, according to the civil and maritime laws and an<- eien/ customs of the said court, all ships, persons, things, &c., for the premi> ses, within the said maritime parts, and for all other causes, &c., so that the goods or persons maybe found within the jurisdiction aforesaid. In the ample and extensive powers thus conferred we observe a desire, on the part of the British government, to extend the jurisdiction of the Admiralty of England, to this portion of her possessions, not in the mutilated condition to- which the usurpations of the common law courts had reduced it within the kingdom of England, but with powers and attributes corresponding with those anciently possessed by it, and with those previously conferred on the Vice AdmiraltV courts in thi> neinre" following, J ronnce, and other enactments are mal ! k ^ orcumstances of the clauses of the statute ThT « V*.'"**'® '" '"'" thereof, |,y the subseaoent Judge, did noc ^e -.ftli -reTope*:;; S""'^'r ^ •'^^•"« '^ ''" ^^1; ta?n. a distinct reser,at o „ The ^h^^ "l ""r"*"' ^^' ^^"^ '^'^•''>" ^on' Qui-bec ; amon. Ihich ml h! ^°''""."» «<> be in force in the Province of fifteen, UooeVepllr^fiU^T^^^ ^^Z^r "' the Colonies, the fortyVfir.ne?t^i„ 'of «h.>h ' ""P"'"* ^"•'« courts of Admiralty, appointed or to hr a , , ««▼« jurisdiction to the recovery of aU peV.lt.TaoS forW^ure,^ ^"•"•*="» ^^^ »»•« pro.lsion would be inoperative whh«!.i, ^ ""'""*'' t''e'«"nder,-which it luto effect. The ImpSlta^ute ?4 h r "'m '" '^ ""^'' * ^°"* ^o carry expense, of theadminiftraUo of^u.t ce and\ V " ''• ^^^^-^1". ihJ wrnroent of the Pro.ince of Quebec dirp.^. i "'' '*°^ ^^^^ ^'''l go- tie, aod forfeiture., thereby h^flicted to h '' ' '^ ^-"."" -ectiou, all penal- Admiratly. The Pro.inciaTOr3rna„c« 28th Germ '" ^ 'T ° ' ^''^^ He. 2, and the Provincial Statute 33d Geo IH c '2''wi;"H*^ '°'' ^'°' ^' ' :he purpose of regulating the inland trade of fhi P • *-'** '^"^ P*»"<* p^ -MUHP fo^ the recovery of peoaltie. in .hV. *»»« P^?'»nce, contain, each, efo .. s^ . .i?:.>iact recoirmUoS of IV • ? °"^ °^ ^'''•' Admiralty r-thul Aimtr. V - HsdictJ^ !J'SS« iiiSL^'f-*""^ ''if'''" •''« P'«"i"c;, of^ prom.on.of the JudicaturrAc if irSi ! ?""' ^'.*°' ^^»'» «"d by the eleventh section of the P o ocia ^tutfof [^^^^^^^ T""""'^' I" ^ "'"=» ^y »»>« seamen, above cited. ' ^'^ *^°^» concerning the desertion of via!etrVp«[od'':rtUt;::i'^ir Tet^-^^^^^^ -»»•« p- been r^.n!,-^ „-.' ."J ^"."* bow,— let it be asked—has t\i»t i a:„..L „, „. ,n„ulicd, or .0 any nray superseded or impaired"by7n7 otTer is le JudgPi of ovr ail, jjro- >wi, and lu I ill a couii- m^nt,) and enlarge'' ju. will iKH be t irpu«i,j)ant ludi eiilarg. iM« ..broad, -ill ao far aa lion of ihe I Statute of ) profiaioiia ••s gi»en to ommissiona 1 following, cea of the lubaeqoent Admiralty Uion con* of crimi' 1 of Great rovinceof I cliapter g duties n to tile i( for (he , — which I to carry yiofr, ihe cif il go> II penaU of Vice 3th Geo. e paaaed n, each, : — thus 'f of an •■ further I by the > by the rtion of le Pro- »!:»<: y other d."nci«?.K ."m.'k""" "nquf.iionably has not, and we hate then the e,|. dcnceof (he e»labll«hmenf In Canada, of a Co. ri of Vice Admiralty eaercUln., undiaputed jurisdiction ov.r the whole coorae of ,he rUerS.. UwrL. "uh n lu...d h T'!i«^f °' ',*"•/ y*""' '^ i«««PPO-ed .ha* it. iurladiction ha. ber . ouated by the difiaion of Lower Canada Into thrrt juridical dl.tricta, and the aTo, [''TI."' ^°'"«» °f King'a Bench therein, ..'.reining jurladlc.'Jl.ot according to .he common law of Kngland, with all ita fictiona and it. att mH. ment to locaHty, but on the enlarged and rore philosophical principle., of !..;. r °'/':»'»f'^.'»»j"«'ocloced In '74. There la no one rule more di,t|„^ v JJ.„ .1 !" 'IL* J^^'P'"^*"'" <»' '''nglnnd, touching the interpretation o s.a.ut. inan tlils--Ihat no pre-eiia.lng jurisdicloii can be ousted by Impllcuion, no. ^Ly "!';".n;'*»"|!'''»" •he authority of (he LeMslature,clearly and diMincly Ar^ f .70?: "iu*" "•■~^° *^ '*"" ''°"'' °f '"'"'' ''"PO't in the judicature Act or 793 ? There are none, aixi therefor.- ^^ have no declaration by the i^egialature of an intention, either to ouat, or imp, ir the juriadiclion whii-h the Vice Admiralty Courta then eaerciaed over the ri or St. Lawrence, from the Gulph to the utmoat limit of tide water. Thia bringa ua naturally to the conaideration of s. . h decision,, aa mny ham oeen rendered in Lower Canada, since the passing of the judicature act in quealion, an well In the court of Vice Admiralty, a in the court* of Kin^'a Uench upon applicationa for writa of prohibition ; nud also of auch Impeiial siaiutea aa may have been aubsequently passed, affecting the jurisdii tion of mia court. " rn^»* f v" '"/h'f h writs of prohibition have been a> arded to reatrain the court of Vice Admiralty are the follow ing :— . '^*' ~"iUM?''ir ''' '^'""' "^^'^^^ *" " *^"^'' ^'f "' '•8*' »» 'he Battureof Mil e Vaches, in the river St. Lawrence, at .ut 200 milea aboie the Island of Anticosti.— Stuart R. p. 21. 1822.— Murphy vs. Wilson, for an aaaault committed . n a seaman on board a British vessel in the Port of Kingston, St. V >cent, while in the Pjosfcutio" of her voyage.— Ibid, No 39, Note ^a). i»23.- Jones vs. Howard, damage by collision by the Mp Camillus, while i«a.T "i" *^y *'" *''® *'°'* °^ Quebec— Ibid. p. 16K i»27.— Willis vs. Soucy-Suit for pilotage in Ihe St. Lawrence below Que- bee— Ibid. p. 80. 1834.-Short vs. Hurley.— Loss of passengers' goods at Groase Isle below yuebec, by the oversetting of the boat of a sh p on her vovaae from Dublin to Quebec— Ibid p. 39. The first instance of a prohibition being refused, was in tl> • case of Ritchie vs. Orktiey. decided in 1835. The action in the Admiralty in this case waa bfc — Stua^ r"™" ' ^°' ''""""8® ^y <:°"'t''on •" 'he port of Que- The first mentioned cause, Hamilton vs. Fraser, in 181J, is the leadins case on the prohibition side. The judgment refusing the prohibition in the case of Ritchie vs. Orkney, in 1835, was rendered by the same court, (and, as 1 believr, similarly composed,) not from any change of opinion in respect of the reasons of the iadumpn* \n thr -,— K.r* !- —I /.. pawing of the Imperial statute 2 Wm. IV., c. 51. It f^ 24 It mij """"" «r,; p'jpoSn ii i:iiit"i„°"h°/;e,v:r'°', *''"""^- " "'"-'' - "« 1311, Rkhard 11', which w"? llera-^hlrM'' ',T' °' "■" "'"°'« "f"-" l«mii,e-« What MiWs ih/ A ^f L! V ,.' " ""' ""'"" '■"?»■". "> >)«- .peak, of thing.do„.wfhi», helix TK '"',''''P"'3' 'l-all meddle '-and »hich w„ e».cout (o render I by the court n the case of arge into (ho arted to have >n »s. Fraser, he ship Trio, d flow of the been render- I the District Vice Admi- ^ourt, stated e, lo be; — eof salvage 'f," anil the iroceeded to aw courts, ted, and he 1 question, iigland, the any matter hat it can> n, or King- tar J/ courts ned in the ute of the Its, to de- Jle '—and chard If., " In what sance, by rd Realm ^ on put in ■interpre* ometimes el of the ' maw n4«A 'J tsvft, lecisions, 25 («hlch is somewhat of ancient date'LbdnJin the 7 ryJ;, f\'-; °"n7» " or dleVo .!''i:.V.hT^ • • ' ° ^"? '^°""'^' '•'^ Admiral hath I«risdic, o„: effect!!!" T^e sea sali tbeToTr.'" ^'wK-'rK "•^'^/^^^ not of any count/ for ?f the Th' ''Ik^'" "" jurisdiction of the Admiral, is thence." ^ ^' *''* "" *** '•"*"° ""'^ *=°"°')'» *"»» ™ay come frJm /* J of ThI'''' *^"' «'*'t*''» '^ '•*«'»» must mean within the bodies of the coun. Uei of the realm, for the sea between Detonshire and the Isle of I u.wfr«I ricted sense of the term, the first proposition would be correct in 1 rl -I ays down the law as ii'existed in England arjha^ime buMt U nh ' ".'* incorrect in as much as it is predicated'upon he exS^d sel of th7»rr ^ sToiriti!" r^r ^'r'^ *° ^^p •" '-^^ *•»« pHncrpie" o? the E.°giish'j r. TJ ( , '^"''^'"g 'heir judgments, and not to substitute the term reall for that of body of a county, which is the one invariably used in the RTpoTts My object, „ drawing attention to this distinction, is to «uLd aSt .h« h Tdmir:.:'"' 7 ""^ . '^. ""-^'J-lXy '^d, in det'ermhifg the C ds of the Admiralty junsdicJion in I.ower Canada, by the specious dt/um 7fnr •. • England, «reco.extensivemthaelimUsoftherealm,^-~-ino7der from to draw the inference, that the limits of the juStioo of he ^rditr; Tr? « ''^. " ^""'^I ^""°''''' "•' co.exte„s,ve iith the limit of that P^! lSl«l "" t7' r"*'"* '"^^^^"*'^' f'"-" «»»'' ''■^^^''^ already gi en Ts inadmissible. 1 be 6rst proposition, therefore, cannot be taken t.. hi correct rule of law even in England, ind much ks.s?rLower C nada ' * « ruL TZt rr^''"''-^': 1'hat certain cases are exceptions othe'general rule, b„t that salvage, arising and completed within the jurisdic ion of the « fc'" """' P^P"""?" i»-" lli«t Ihe Pro.iodal court of Vice Admiraler " of EogiVn'dT' " °"'" •""'°"'^' "■"" "■" •""" "'«'• ''•-'•«•' aZi;:ii; rnnr»r«fP'ir." "T ." "°' ""™^ <*«» ^J » reference to any authority. The courts of V.ceAdm.rahy are assumed ,o be mere branches, or eZation' o i, I*, i! V' V i 26 of (he Hl«h Court of Adiira v %L„Z\ "'°'«.^**^"*''e "^ture, ihan that throw off, he trammeU of he Lgl sh dSn?' f :« °'^^'«"*'y designed to jurisdiction, in the Colonies, to i*iclcMuS^^ ° 'T'' '^' ^^•"''^"j' time of Ed.ard IIf.,-th;ti„,e o t A^^^^^^^^^^^^ Lose observed in the Queenshurgh, in 1376-lhe lime of the Ar«icu nAdm r ''^"'^''^^^ '«'*^" "» the resolutions upon the cases of Admiralty nl^i.r "''"'"' '" '^'0' ""^'^f Besides all the authorities «hich?nl,t"'?,^'°"' '" '^32. High Court of Admiralu^rd Vice T^'J^J, "'^ <^0"»Parative powers of the doctrine Judge Stor,/fn the c.s7ofKo\rK T'^VV^'' ""^^^'''^ Court of the United sfates, in Massachusetts in '81^ * 7"'"'' '" '^' -'"•'"'* »on;s Reports p. 470, and which probab 1 c . ta ns' T 7"'"'^ '" ^^"'" subject of Admiralty jurisdiction, ,Ln is to be founH°'' ^""''T- °» '^^ " I shed, or reset ved to itself the right to establish A '• ^ ^-'''^wnestab- *' '''e nature and the extent of their fur sd^.^n?.«^ Ad,„,ralry courts ; and - sion of the Crown, and upon acts of Ct me 'T'^r*^ "P"" '''^ '^°'"'"'*^- " rities. The commission of the crown InvT^^^^^^ " 'i''hed,a most ample jurisdictioroveTallmtv '"""'' ^'"^»' «ere estab- " and injuries, as well n ports a „po. MheTh *"' '°''''''''^' and over torts " meat enlarged, or rather recLnized tl i^ "«''/^«^ And acts of Farlla- " ing cogniza1.ce'of all se.zrs'rco'ntr V„';[;:fs':frhl'^ ^''"«- in a note to the same page we find the folio!!. ,! *''« '''^'^^nue laws." And *^ ed that the commissions were osuaMv i »h ^ observat.on--" U |s presum- ;; i^.o the Governor of thHroyuTp o\ icf orX ^/""^ '"^ '^'^^ year of the reign of Geo. liff It au Xrizes IHm ,« f T'""' ■'""'« ^'" ;; and proceed in all cases civil and marit ^e, ani . co m V' r-"'^^'"''^ «^ offences or suspected offences, crimes olea. w i '^"'"P^'"*'. contracts, ^^ charter parties%greement,,siitsSafs'renn-'-' ^^''•'^"g'«» ^'^^o'^'ts « mands, and business civil and ma time Ih!:,^"'"' *»»«^'Jo»8» and de ' ;; commenced between merchants;or b Twen owr"l ?'"'"^">'^'^ ^ '« »^« " and other vessels, and merchants and orheVs 7h "^ Proprietors of ships ; and proprietois of ships, and all other vessel. JlT°"'''' ""''^ '*"^''' °^""» within the maritimeju'ri^dictionoT o'r Vice A^^^^^^^^^^ « .t'*: ;'-5^»^^«"«"J' other persons whomsoeveSVadeh''^'"''"'''' tracted, for any matter. thin<» rausp «r k ". "^^ naa, made, begun or con- ;; done, within oir marine urlsdS.afc^^^^^^^^^^^ ^""« "^ ^° «>« " .Hand singular complaints coX, L !ll ^*^^ and moreover in *' civil and maritime, to be performe?Lvm,,fTif *'* ""'" ""^ *'"«'"«". " however arising or happeniSr-'wIthmZ ..''' '""' or contracted there declares the jurisdiction " o «^nd hrouZut all f 7'*' P°^««-And it' " public streams, ports, fresh waters riv?r! ? ^"''. ''^""^ *''« '^» "hores, ;; sea a, of the ;iv^rs a\,d ct 1 ^ i^^^^^^^^^^ the' « point offactthe Vice Admir«Itylurt of Mas °k"'' ^[°V"''"^^' '" :• tion, exercised a jurisdiction fa^ 'Zl l^^^^i^^l^^^ 'J^-olu- lie Admiralty \ the Commis. ih} in the Co* ire, than that ' designed to ie Admiralty tserved in the ion taken at 1610, and of ■ owers cf the he opposite n the Cinuit fed in Galll- ni;)- on the (her book or -rown estiib- courts ; and the commis- ional autho< were estab- id over torts i of Farlia- or confirm- laws." And is presum- the latest in the 6th lizance of, contracts, accounts, 8, and de- J or to be >rs of ships ch owners d or used, PfOTince, m or con- e or to be oreover in business, ed there, —And it a shores, II of the &C. Ill 3 revolu- driilrai iy 2T ft is apparent from the similarity between the language here used, and that of all the commissions to the Judges of the Vice Ad.niralty courts in Canada ?M.^J^ ."*; "'*' * uniformly extensive Admiralty jurisdiction wal established throughout all the British North American Colonies All the American writers upon Admiralty jurisdiction, to whom it became a matter of importance to ascertain the precise limits of that jurisdiction, as bequeathed to them by Great Britain at the time of the retolution, concur in opinion as to the more enlarged jurisdiction of the Vice Admiralty courts over that of the Iliah Court of Admiralty. Judge Winchester said in the case of the Sandwich, that the Statutes 13 and 15, Ilirh. 2, hid received in England a construction which must at all times prohibit their extension to that country (U.S.) (a) Chancellor Kent staten, " It is said by a Judge (Peters) who must have been well acquainted with this subject, (for he was a Registrar of a I' colonial court of Admiralty before the revolution,) that even the distinction ' between the Instance and Prize courts was not known in their Admiralty proceedings under the colony administrations." (b) The separate identities of the High Court of Admiralty and the Vice Admiralty courts, are kept up in all acts of British Legislation, (c) and were this court a mere branch or emanation of the former, and governed by its laws, the 6th section of the Impt-rial act of 1840 would have been at once conclusive as to the question of jurisdK tion involved in the present cause, in so far as mere locality ig concerned. ^ The proposition then that the powers of this court are precisely identical with those of the Uii;h Court of Admiralty of England, cannot be a'mitted, without curtailing the jurisdiction of the former in some matters, and extend- ing it in others, by the force of legislative enactments in the United Kingdom, which have no relation to this court. The provisions of the 3d and 4th Vict c. 65, relate expressly to the practice and jurisdiction of the High Court of Admiralty tn England, and have palpably no more reference to the courts of Vice Admiralty abroad than the statutes regulating the number of passen- gers to be carried by stage coaches running out of London. The fourth proposition laid down in the case of Hamilton vs. Eraser, and which is assumed to be the legal consequence of the three first is,— that as the High Court of Admiralty cannot, so the provincial court of Vice Ad- miralty cannot hold plea of any matter of salvage, arising and completed, within the jurisdiction of the ordinary courts of law, and consequently that the provincial court of Vice Admiralty cannot hold plea of any matter of salvage, arising and completed, within the limits of the Province, if the limits of the jurisdiction of the ordinary courts of law of the Province be co- extensive with the limits of the Province." It is assumed here that the same reasons upon which the common law courts claim exclusive jurisdiction over matters arising within the bodies of counties in fcngland, ot)tain in Lower Canada, it has already been shewn that the stringent rule of the English law in regard to things done or arising infra corpus c omitatuSf is not applicable to, nor susceptible of amalgamation with (n) Peter, adm R- 233,=t Kent com, Ed. 1832, p. SSS.-Hal! adm. Pract. X vii. (o) I Peters adtn. R. 5, 6. (c) J, 4 Geo. 3, c. 15. 49 Geo. 3, c. 107. 2 Wm. 4, c. 51. 3 and 4 Vict. c. 65, 8ic. lili^ ■' 1 y it ' 28 the system of laws in force in this countrv Th« n.. . eiercise jurisdiction Of er the whole Sdim.nrf^T^* T'*" '"England the Admiralty In matter, occurring wlthinThl h"/"^^' the jurisdiction of trial must be by a jury from the LrTcu "r conn?i^- \"°"."*^' '*^*=«"" •»»« J;\^,««\'»'-a'^y shiwn •l.atthe'courtJo k'^.b^^^^^^^^^^ '' on he other hand, nre cvn6ned,\n iheVxer<^^s!ofZlr'^f^^^^^ limits of their respective districts, and that thT?noli-? r'"!"'''*'''°"' »° «he « to real estate, confers no part cular or p, i 'P'^^''/^ .«' /he thing, except domicile of the debtor, or of he wroLH'"* Jurisdiction, 'l^hat the ce» opon him within the di:tri t of Qu Ser'jfoHnl " '«"'- °f i«- P-- «i»e the court of that district iuriX^?« ' ^ •••stance,) which would for this purpose, it is perfectirilea^^X T'"* '^"'^ '""^ whe her within the district o^f Quebec o'^wlt^.r Wtthtn or wiMott* the limits of Lower Canl^r Ti! ^'"■^ '^"«"» or patibility which exists in England between ^lli •^'?',"*™* ^««^^« °f '"oim- Wer Canada, and their is^o anargrbXeen ?h^/'""'' " unknown In respect. «ii«iogy oetween the two systems in this '^^Z':::^'^^::^^'^^:^^^ [':: »»•« -re elrcumst^nceof the within the county of NorthumberlaTd .nl -fr".^ *^''"* »»*^''" Performed, only gave the Court of Sng "^^^^^^^^ the District of Qliebec, no ousted the previously existingSict on of ,h T' ^^"/'""^ *»f "*'»" but .a fallacy predicated upon JheCes of hw ^ ^^•"'"'^^ ^«»'t. This two courts in England ga ve rise, and wh ch as all., ' ?'"««'" '"'♦^*^*" »«»• cable to the local circuLtances, and7he svstem off ^ '^tV' "'^ *»"'y "PP"- courts of common law and of Ad^al.Vfn E"!^^ '^'' '*'"""^- '^^'^ ;.nmemorlal, and it i, now imp^srh e X, t Uachh"" "^?'^^ ^'°'" ''-"« ta n he ancient line of demarcation beUeel Lm f i" °"?,'"' ^^ •» "^*'- m.ralty jurisdiction of an extensi.rnaLre e,^^^^^^^^ the institution of its Courts of King's Bench r^h^K \^^"iy yo-^rn before «.tatute,)-and that jurisdiction hSf ne/erbe^n ato '[^'^'p "^ creatures of passing of the Judicature Ac» of 'QS nn.hT ''^'°S^*f'^' Previously to the ;othe right of this court to entertain^ aJlo^^^^^^ °'^-"^'''°? ^""'^ »>« <«ken that part of the river St. Lawrence callpHlh i*"^/*''"*" '"'ices performed in then and when has that jurisS be e^Vus^et^Tslf "^1"' '''''''' «°- be so by implication, and were thernnr'orH7/^K '7'*^^ '**'*'*' •^^'•""ot nook having that tendency.thesamr'trictLson^^^^^^ '" *''« Statute ed .n construing the creation of a new WUdtct^l ^'"''"I'r ^*'''^'' '»'•«'^• <•qaally necessary In establishing its aSLS ' ^°"'^' econversu, be or MitlJ^L^Truire^uali; :::l:^: \';?nir t^ ^-"•^^'^•- - Q-^eo, Lawrence between Cap de! MZtTtu/tLiZ^^ the St ward, the Pro.ince line, h^tTmStlit^'^^^^^^ "'^r, to, English channel between DovJ^LdcJlal Id „° .''"?''" ""'^'''»'' °f the efther side from the deck of a vessel .a Il„' ,h J!!!'' ^^''i ^^ ^^'""ncd on Tte horizon in .11 directions is^to a? a»oelir* '^' "'^^'^ "^ *»>» «P«ce? waters. It |, as muchaltum «^e as the Ei 7*r*.'".**'''"'"^ble waSte of •" ^ " ........ .h. -- ooayoj a couniyV in addition to hi; ^rdTn^ry'T- w of ts in England jurisdiction of ^ because (he ^ey arise. It ower Canada, liclion, to (he thinit, excrpt '. That (he :e of its pro. which would 'ff and (hat (ion arises,— s Rivers, or ee of incom- unjinown in ems in this tanceof (he I performed, Quebec, not ac(ion, but court. This '•'tween the only appli. inlry. The i from (ime or (o ascer- 'da, an Ad. ars before :rea(oresof asly to (he i be (alien rforoied in ^f. How t it cannot >e S(a(ute li is exact. versuj be t Quebec, »f the St. ri'er, (o. h of the erned on is space. waste of 1) and it iefTice ry Jibe. 29 ral education, he would require O study na,iga(lon, and provide himself with ^"fj u"" ' ""** •"' fi"toP"at«0"»-s»anding in his light and fragile skiff- would be to ascer(ain, by astronomical observation, his latitude and longitude, in order to determine, whether he was serving his writ, wiihiu the District of Quebec, or within the limits of the Province of Newfoundland. The most ex- travagant extension of the local limits of any coun.y in England, and the most extravagant in(erpre(ation of the restrictive effect of the statutes of Richard the 2d, and of all the decisions to which they gave rise, would fall far short or thelodicroDsnessof suchacase. But (he fourth proposition professes to be based on the hypothesi8-/Aa< tne itmtts of the junsdiction oj the ordinary/ courts of iaio of the Pro. ^nceare co-extemive with the limits of the Province'^ In support jf this hypofhesis the Proclamation of 1763, (he Act Uth Geo. ill., c. ?K . u L^^l '" ^°""'=''' °^ ^"8"'' *^^'» a^e referred to in or.ler to establish (he limits of the Province of Quebec and (hat of the then Province of Lower Canada, and to show (hat the river St. Lawrence is within those limits. But there is a failure to show (hat the river St. Lawrence "/??nr u ^^.^^ '" ^"y ^* °^*''® Districts established by the Judicature Act or 1793, by which a/one (he limits of (he jurisdiction of the Courts of KiiiB's Bench are established. The ri vei St. Lawrence has been already shewn, to be in Its entire course, without the limits of every one of these districts. The Bat. tare of Mille Vaches is neither within the body of the county of Northumber- land, nor of any other county, district,or territorial division of Lower Canada ; and this fact, peihaps, is the strong-st to test the fallacy of the argument-that tne Lourt of King's Bench for the district of Quebec, had exclusive jurisdic- tion over the salvage services performed at Mille Vaches, by reason of their locality, in as much as ^Moai the jurisdiction of that court, it is perfectly iih- material whether Mille Vaches be within or withmt the limits of the district or Quebec,— no additional right to take cognizance of the cause being derived from the locality of the thins? done. The court of King's Bench in England would indubitably, by the aid of a hction laying the venue in an English county, take cognizance of a case of tort on th« high seas to the personal property of a British subject, but would It on that account attempt to prohibit the Admiralty from holding plea of such a case, if it had been first instituted (here ? This has never been attempted. In such a case the court of King's Bench would be constrained to tolerate a concurrent jurisdiction at least in the High Court of Admiralty ; and (he *^°r't.. 5'^*'^ '^®"*^^ '" *•'''' country are precisely in the same position, with this difference that in consequence of the system of law in force here conferring no additional jurisdiction by reason of the locality of the (hing done, the jurisdiction of the courts of King's Bench in Lower Canada can only be concurreiit, whether the cause of action arise within or without their local limits. Had the word exclusive been introduced into the judicature ^V^S' ?^'o" speaking of the jurisdiction conferred by that act on the courts Of King s Bench in Lower Canada,— it might then be argued that these courts were in (he same position as the courts of common law in England, which oust the Admiralty iurisdiction hv forpp of ♦h- -s-i.,-:— i-.-i :..-:- diction claimed by them. But even armed with this tranchant term the addi- tion of the exceptional and indefinable words *^ purely of Mmiralty jurisdic- i:'' 30 tionr would still render the point extremi-ly doubjfol, independentiv of the exclusion of the River Sf. L.wrM.ce from their local limi.s/which i„ dtheV case would form an insuperable harrier. Afterlhe most mature consideration of all the reasons gifen in .upport of he proh.lm.on .n the case of Hamilton vs. Fraser, and the additional objec- tion now brought out for the first time by Mr. Stuart, that (he locus in am of the sal vag- services in that case formed no p.rt of (he body of any county or district «,thm the local limits of ony one of the courts of Common law in Lower Canada, and with the most profound respect at the same time for (he fireat learning and (he eminent talents of the honble. Judge who is reported to have pronounced (he judgment in that case,— the conclusion tome is irre- sistible (h.( the court of Vice Admiralty, instead of being prohibited, ought to have been sustained in its jurisdiction over the subject malter of the action In the case of (he Camillas, for damage by collision, caused by that vessel while under way in the port of Quebec, decided in 1823, (and in which a prohibition afterwards issued.) the Honble. Mr. Justice Kerr, then Judge of this court, still persisted in maintaining its jurisdiction over the St. Law- rence within (ide waters, notwithstanding the prohibition of 1811, in (he case of Flamilron vs. Fraser, and I have not the smallest doubt that the decisions of that honble. Judge, as well in that case as in the case of the Trio were perfectly sound and correct. ' But it may very naturally be asked cw/ iono disturb the decisions of the court of Kings Uench in the cas^^s of the T.io and CamiUus, since that court subsequen.iy, in the case of the steamer Good Intent, for a collision in the portot Quebec, decid.Ml in 1835, as already mentioned, after the oassinir of .he Imperial statute 2 VVm. 4, c. 51. maintained the jurisdiction ofT Vice Admiralty court over causes of action arising in the river St. Lawrence within the limits of Lower Oana-!a,-and in as mnch also as it fol ow sf om' that decision, that the honble. Ju.lges who sat in that case, were they i ow called upon to try an application for a prohibition in the present cause, fvould, as a matter rf course refuse it, and would sustain the jurisdiction of (his court over the cause of action now submitted to it, in so far at least as (he locus mg'w IS concerned My answer is~(hat I do not rely much upon the effect of the Imperial statute in question to extend the jurisdiction of this coil rr« This act is intitled, « An Act to regulate the practice and the fees in the " V'ce Admiralty courts abroad, and to obvia(e douDts as (o (heir jurisdic! t.on. 1 he 6th section, which is relied upon as giving (his court jurisdiction, in cases in which its jurisdiction, previously to the passing of that act, waJ doubtful, IS in the following word, :-« And whereas in ceftain cases I'oub « may arise as to (he jurisdi. tion of (he Vice Admiralty courts in His VlaieJ- (y's possessions abroad, wi(h respect to suits for seamen's wa«es, pilotage, bottomry, damage to a ship by collision, contempt in breach of the regula- <;ons and insrncdons relating to His Majesty's service at sea, salvage and droits of Admiralty ; be it (herefore enacted, that in all cases wfere a ship or vessel, or the master thereof, shall come within the local limits of p,uv.crd,ns, in any of ine suits herein before mentioned, in such Vice Admiralty Cottrt, notwithstanding the cause of action riay have arisen 31 illy of the. I ill either Bupport of nal objec- ms in quo ny county on law In ne for the I reported le is irre- ?(], ou^ht le action, lat vessel which a ^11 Judge St. Law- 1, in the that the the Trio, a of the hat court >n in the assinjr of the Vice iwrence, >W8 from ley now , would, ) of this >t as the ipnn the of this s in the urisdic diction, ct, was I doubts Majes- ilotage, regula- ige and vhere a mits of tnirnce I Vice arisen « ml oft/ie local limits of such court, and to carry on the same, in the same «* manneryiixf the cause of action had ttrhen within the midiiinUs." This clause is admitted on all hands to be obscure, in so far at least as its application is restricted to the court of Vice Admiralty in Lower Canada. I am afraid it is something more than obscure. The framer has conjured up doubts whi(h neter existed, and having brought them into existence, he has failed to remove them. The power delegated to this court at its institution, and which it has since exercised, without interruption, of taking co^niaance of causes of action arising on the lii^h seas, beyond Us local limits, whenever the person or the thing came within those limits, has ne»er been lmpu^ned. The intention of the framer of the clause, in so far as it is to be legally eathered from the term* of the act, was to give this court jurisdiction over Vhe vaiious categories therein enumerated, provided the master or vessel came within its !oc.l limits that is, within the limits of Lower Canada, and within reach ol liie piocess of the court. It may be said, that since no doubt could properly e»ist as to the right of this court to take cognizance of such c-aoiei before the passing of that act, the person who moved the Legis^lature in this' matter, must ha»e had in view the embarrassment pioductd by the decisions in the case of Hamilton vs. Fraser, and of the Camillos, and that he must have intended something more than he has expiessed, that is, to give this court jurisdiition in cases in which the decisions of the King's lieiich in those two cases had prohibited it. lie may have had such an intention in his breast, but he has failed to express it. It was said, in the case of Ritchie «s. Orkney, that this was a remedial s!a- tute and that it was therefore the duty of Courts of Justice to carry into effect its general object. The rule is undeniable in so far as regards the ex- tending of the remedy under a remedial statute ; but where the question touches the power of the court to take cognizance of the matter at all, the Doint must be tested upon a different principle. A statute creating a new ju- Hsdiction, which this would be, if the decision in Hamilton vs. Fraser be cor. rect is one which confers a power, and powers are ever to be strictly constru- ed ' Again, the clause in question purports to give the court power to com- mence proceedings in, and carry on, a cause of collision happening beyond its local limits when the vessel comes within those limits in the same manner as if the cause had originally arisen there. Then if the decision in JIamilton vs. Fraser which denied its right to try a cause of collision, arising within Lower Canada, be well founded, how or in what manner could this court fO//.»ie«ce proceedings inland carry on such a cause arising beyond its limits "' '^'^ /^^ manner at It would try one arising mlhin its local limits, since, in the latter case, it could not try it at all ? Of course the foreign case would be equally beyond its control, and, although it may sound very like a quibble, the clause in question, if strictly and literally construed, would actually abiidge the court of Vice Admiralty of Lower Canada of a right which it previously un- doubtedly possessed, and exercised. Such a construction, however, would be at variance with the settled rule in the interpretation of statutes, that Courts of Justice are bound to strain the terms of a statute, in some instances r ven against the letter, ut magis res valeat quam pereat, and in order to give them a^ational and reasonable' construction, consistently with iiie respect due to the authority of ParHamenl,aud in order to avoid, by all possible means, put- 32 m Iv i^ I I' \ lln« such an Interprelallon on them ai would amoant to ^reducdo ad absurtlum. 1 he only possible mode by which a contraction, fatorable to iti conjectured object, can be put upon this clause, is to suppose that its provisions, thouzh made generally for all .he courts of ViceAdmiralty abroad, had, oe,ertbeless. itference pointedly to the circumstances of the local limits of the Vice Admi- rally court of Lowfr Canadu, and the decisions of its courts of justice : and since It authorizes this court to commence proceedings in, and to carry on a cause of salvage or collision, or any other of the enumerated causes of action arising beyond its local limits, in the same manner as if such cause of action had arisen wlfitn tiiose limits, then that such a pro* ision amounts to a distinct recognition that such cause of salvage, collision or other thing arising wiihin these limits, could previously have been tried by this court, and (hat its juris- diction, though doubtful, in the opinion of the framer of that act, as to causes of salvage, collision, &c., arising Aeyon*/ its local limits, stood nevertheless unimpaired as regards these causes of action when arisinmrrt/„Vi its local 11- mits. I have no objection to coincide in that interpretation of the clause in question, font isdestruct.ve of the principle of the judgment in Hamilton vs. h raser, and comes in aid of the views already expressed by me in regard to the correctness of that decision. 6 *« "•" Under either view of the effect ofi the statute in question, I have no hesitaiion whatever in coming to a determination, that the first ground of objeclioii set forth in the act on protest, namely, that one which denies the jurisdiction of this court by reason of the locality of the collision, is un- founded and cannot be sustained. »••«•» The other ground of objection remains still to be disposed of, namely, that one which impugns the jurisdiction of this court upon the ground that the collision ,,, question occurred on the river St. Lawrence beyond the ebb and tlowof the tide. 1 his IS a point of the greatest importance. Although in interpreting the English decisions «ith reference to the objection of localiiy which has just been disposed of, I have rejected (he rigid English application of the rule tnfra corpus comitatus, as violating that principle of adaptation which must of necessity be observed in transplanting a system of laws, whuh had Its origin, and its growth, in the particular circumstancel and conditions of one country, uncontrolled by any abstract principle of law. into the jurisprudence of another country, totally dissimilar in these particu- lars, I am not prepared to treat the present objection in the same style. The settled and undisputed rule id England, and which has moreover been held to be law in the Ucited States, that the courts of Admiralty have no jurisdiction beyond the ebb and flow of the tide, though inadequate' to the ci.cumstance. of Uwer Canada to the full eitent, is still susceptible of application as far as it goes. Had the collision happened, beyond dispute, at a place either entirely wilhin, or far removed from the ebb andflow of the tide, I might be prepared Trl It ?K°" !.''' '**r ""^i^f "'*• '^^^ ''^'^^''^^ °" ^his point, although brought out in the shape of affidarits, by two parties, each eiideaJouring to substantiate an opposite and contradictory series of facts, really contains less con rariety than is to be found in most cases, and there does not seem the ."Z o '. ; ■' ^-""'5 »" qursiiuii ine goou raiin oi the parties sweaiinir either on one side or on the other. It is averred on both sides, that there 33 abturdum, onjectured IS, though vertheless, ^ice Admi. lice ; and ^arrjf on a of action of action a distinct ing wiihiii t its juris- I to causes vertheless s local li« ' clause in milton vs. ard to th& have no >t ground ch denies n, is un- lely, that that the ebb and hough in action of J English ncipie of iystem of mstances e of law, particu- yle. The I held to isdiction instances as far as entirely prepared although turiog to ains less eem the iwearing lat there is an occasional rise and fall of the waters of lake St. Peter. Both agree that this only takes place in spring tides j but the one set of affidafits assert that it is not periodical, and is ascribable, solely, to the combined effect of winds and tides ; while those on the opposite side state, that there is a positive rise and fall of the waters of the lake, in spring tides, independently of the effect of the wind ; and the affidavit of Ryan, which possesses the character of cir- cumstantial in a higher degree than any other, states that he succeeded in floating a steamboat, which had grounded fifteen miles above the site of the collision, in consequence of the rise of the water caused by the tide. But it is not upon such meager evidence that I am to decide the important fact involved in this second objection of the act on protest. The parties must proceed by plea and proof in order that each may have an ample opportunity of adducing all the testimony which may be deemed essential in order to elu- cidate this question of fact. This decision, as a matter of course, implies that 1 am not now disposed to maintain the jurisdiction of this court over the river St. Lawrence beyond tide water. Where the precise point lies, at which the jurisdiction of the Admiralty stops, it may be difficult to determine, and there must always be a considerable extent of debatable ground in and about this uncertain line. ... . . u While on thij part of the subject, I may mention a few authorities which possibly have a bearing on the point. — 2 Douglas 443. Dunlop Adm. pract. 41. Cond. Rep. Sup. Ct. U. S., 342. 6 Cond. R. U. S., 173. 1 Valin. 129. 2 Valin 571, 672. 7 Carrington and Payne, 664. (or 32 Serjeant & Lowber, 678)— 3 Hagd. 273. . It may be said to be absurd that this court could take cognizance of a case of collision happening in or about Port St. Francis, on Lake St. Peter, and that in a similar case, occurring ten or twenty miles above the same spot, the court could afford no remedy, while damage to an incalculable amount might be caused by a foreign vessel outward bound, and against which all recourse might be lost. Such a misfortune might now occur without any means of re- dress, as this court could in no way stretch its jurisdiction beyond the tide waters of the St. Lawrence, however urgent the cause,— the Admiralty juris- diction in Canada being necessarily handcuffed by the rule of the English law, that it cannot be exercised beyond the ebbing and flowing of the tide. The same inconveniences may arise here which were felt in England in regard to collisions in the river Thames, within the bodies of counties, previously to the passing of the statutes of 1821, and 1840, giving a remedy in the Admiralty in such cases. The powers of the High Court of Admiralty have been much enlarged by the latter Act, and it is now gradually recovering those ancient limits of its jurisdiction which reason and the nature of the remedy afforded by its mode of proceeding, necessarily assigned to it, and from which it ought never to have been driven. Thus it has required the experience of ages in England to overcome the effect of the statutes of Richard the 2d., and the forced interpretations of tlieni by the common law judges, and to approach that just appreciation of the true boundaries between the courts of common law and those of Admiralty or maritime jurisdiction, which the wisdom of the naval code of France would have taught them nearly two hundred years ago, and which has been confirmed by the uniform practice of the maritime courts, as well of the Sister Kingdom of Scotland, as of the rest of Europe. s [VI t II '5 34 The rifer St. Uwrence may be considered, and under a more llb-ral gvs- ^"Inlr.T^r! ""^^ t'*"'!'^ ^°^°'"^' '■''"'" *'» •"""''' ''' »''« Po^t of Montreal, Zili!^ n u the exercise of marit.oie jurisdiction over that noble stream, might well become the subject of Ie^i8lati»e interference, in order to afford commerce that protection and redress xvhich it would derive from a speedy ad- ustmeut of Its differences, under the equitable system of laws and practice bv which justice is administered in maritime courls. ^ ^ r.nn f!l!^" *''® P'"®"^ ''"^ '^'" ^^ '■°"'"^ »° b« ^^'thin the legitimate jurisdic- II h- r II *'°"'*' ?' ".°*' ''''" ''^P^"^ "P**" •''« remaining question of fact yet 10 DC fully ascertained, namely-the exact amount of influence which the tide luh^rTT""^^^ waters of the St. Lawrence at the place of the collision. Ilrh !„fl *.m'" ^°'"!^'"«'^ ^^'tl*. ' *** '^' *'^« °f »•»« «•• I^^wrence-- Thus far shaU hou go and no farther j" nor yet to decide what are the utmost limits to which the phenomenon of the tides will permit this court to extend its jurisdictio^" the n,pV. -""^^ ^'°^'^^'r **•*' ^^''' •""'* Important point in this cause, upo ?«rh 1^ .r'*' °"*^ ""'y P""''*'^" '^•together ■c.^end-i, not f.r above, nfr ar below, the actual site of the collision. When the ripari.n inhabiUnis o the R.,er and the Lake, and others having a knowledge of the fact, come to be examined .t may then be fully and satisfactorily ascertained ; and if The col- be mVf °".7' '".''T ^^PP^"^^ "^^y^^^ '^' jufisdicion of this court, i w° be my duty then to dismiss this suit for want of jurisdiction, but if otherwUe to proceed to a final determination on its merit,. ' oinerwise, absoireV"^' *'°''''"'' *"'"'""'" ^'" ^''°*'*' "'"^ '''''^" *^' P"'''" *° °PP^^' A-^Q <^:2^ /i/^^' /S¥V ^^^ c^^