Navigating the Lower Saint Lawrence in the 19th Century.
| Quebec Mercury #26, Page 206. Tuesday, July 1, 1823. | ||
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The following judgment, given in the Court of Vice Admiralty, on
Thursday last, in the case of Howard against the ship Camillus, for
running foul of the snow Hazard, being interesting to the public,
we give it a place in our paper. Judge Kerr. This is a suit brought by the master and owner of the snow Hazard against the ship Camillus, and the libellant complains of an injury done to the Hazard, on the River St. Lawrence, near the City of Quebec, by the people on the ship Camillus, who, when the Camillus was under a press of sail, so carelessly navigated her, that she ran across the bows of the Hazard, whereby she sustained damage to the amount of £300. To this libel, a declinatory exception has been pleaded, in which it is averred that the locus in quo of the pretended injury is within the body of the County of Quebec, and solely cognizable by the Court of King's Bench, for the District of Quebec. The case of the ship Trio, in which, some years ago, a prohibition issued to this Court, under circumstances similar to the present, has induced Mr. Jones, the claimant, to consider that the question of jurisdiction over the River St. Lawrence has been put to rest, but no appeal was instituted in that case, nor was even the Admiralty heard at all in support of its jurisdiction, and unless a question of such great importance, by which an extent of 460 miles of sea is transferred from the Admiralty to the Courts of Common Law, by a decision of a tribunal in the last resort, I cannot admit that the question can be settled. It is only before the High Court of Admiralty, or before His Majesty in Council, where the matter can properly and finally be decided. During the French time a Court of Admiralty was established at Quebec, vested with powers more extensive than that of the Court of Vice Admiralty, and, in a maritime sense, the River St. Lawrence was then considered as part of the altum mare, for the Ordinnances de la Marine thus define what shall be considered as the sea. "Sera reputé bord et rivage de la mer, tout ce qu'elle couvre et découvre pendant les nouvelles et pleines lunes, et jusqu'où le grant flot de mer se peut étendre sur les grèves." The maritime parts of Nouvelle France, perhaps, extended further than are now claimed by this Court, sitting under an English Admiralty commission, for by it the jurisdiction of the Court of Vice Admiralty extends to a cognizance of "every matter, cause or thing, business or injury whatsoever, done or to be done, as well in, upon or by the sea, or public streams, fresh waters, ports, rivers, creeks, and places overflowed whatsoever, within the ebbing and flowing of the sea, or high water mark, as upon any of the shores or banks adjoining to them." These are the words of the Commission granted by the High Court of Admiralty to the Judge of the Court of Vice Admiralty, in the year 1763, soon after the establishment of the civil government in the then Province of Quebec, and such are the terms of the same Commission, granted so late as the year 1797, to the present Judge, so that it may be asked by what ordinance or statute, British or Colonial, is the jurisdiction over the River St. Lawrence, as far as the flux and reflux of the tide is visible, taken away from the Admiralty and given to the Colonial Court of King's Bench? It has been said that the Royal Proclamation, of the year 1763 has taken away the jurisdiction over the River St. Lawrence from the Admiralty, and given it to the common law Courts. But it cannot escape observation that this Proclamation (if a Royal Proclamation could, in law, deprive the Admiralty of its ancient jurisdiction) was not intended to settle and adjust the local boundaries of the common law and Admiralty Courts, then about to be established. Its only intention was to designate the limits of the new acquired Province of Quebec, so as to show what portion of that territory should be placed under the care and inspection of the Governor of Quebec. Nor was the Proclamation of Sir Alured Clarke, of the year 1792, with reference in the 31st Geo. 3, c. 31, conducive to the end for which it has been cited, considering its avowed purpose was to subdivide the Province of Lower-Canada into counties, so as to guide the inhabitants in the exercise of their right of suffrage for members to the Assembly, under the new Constitution given to them by that Act. If the jurisdiction of the High Court of Admiralty over the great arm of the sea could be taken away by inference (which I deny), no such inference could be fairly drawn from these public Acts. The River St. Lawrence has been assimilated to the Thames, and Quebec to London, in order to sustain the position that the River near Quebec is infra corpus comitatus. But why assimilate this River more to the Thames than to the Bristol Channel, to which it bears a much stronger resemblance, or to the mouth of the Tyne, the Mersey, or the Dee, all of which are estuaries of the sea, or to the Firth of Forth, which is exclusively within the jurisdiction of the High Court of Admiralty of Scotland? The basin of Quebec has not, beyond the memory of men, as the Thames, been subject to the Courts of Common Law, and indeed these Courts have not themselves yet existed 30 years, nor can the basin near the City be strictly holden to be a port, the definition of which is "locus conclusus quo importantur merces et exportantur" for the river is not there shut up, but flows ninety miles above it, and is actually navigable for one hundred and eighty miles. |
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If the Court of Vice Admiralty have no jurisdiction in this suit,
for an injury done on the waters of the St. Lawrence, the
Commission granted to this Court is nugatory,
vana euim est potentia qu‘ non in actum vonit, and if so, where is this libellant
to seek for redress? It is clear that it cannot be found in the
Court of King's Bench, where the remedy lies only
in personani, not
in rem, and if the suit cannot be there entertained against the
ship itself, no adequate relief can be had in that Court. The Courts of King's Bench exercise their functions under the Provincial Statute 34 Geo 3, c. 6, by the second clause of which, that is the foundation of all their authority, it is provided, "That the said Courts, in the respective Districts aforesaid, shall have original jurisdiction, to take cognizance of, hear, try and determine in the manner herein after enacted, all causes, as well civil and criminal, where the King is a party, except those purely of Admiralty jurisdiction." The words "except those purely of Admiralty jurisdiction," must mean something, and if they import anything they must mean that those Common Law Courts are prohibited from taking cognizance of "any matter, cause or thing, business or injury whatsoever, done or to be done, upon the sea or public streams, fresh waters, ports, rivers, creeks and places overflowed whatsoever, within the ebbing and flowing of the sea," provided, as in this case, the proceedings are against the thing in specie. After giving this case every consideration due to the importance of the question proposed, I have no hesitation in pronouncing a decree maintaining the ancient jurisdiction of the Admiralty over the River St. Lawrence, and dismissing this exception, with costs. The Honourable F. W. Primrose, for libellant, A. Stuart, Esquire, for Respondent. |
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| G.R. Bossé©1999-03. | Posted: Nov. 20, 1999. |
Updated: July 15, 2003. |
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