as follows: "As a citizen, I would not deliberately violate the constitution or the law by interference with fugitives from service. But if a weary, frightened slave should appeal to me to protect him from his pursuers, it is possible I might momentarily forget my allegiance to the law and constitution, and give him a covert from those who were upon his track. There are, no doubt, many slave holders who would thus follow the impulses of human sympathy; and if I did it, and were prosecuted, condemned and imprisoned, and brought by my counsel before this tribunal on a habeas corpus, and were then premitted to pronounce judgment in my own case, I trust I should have the moral courage to say, before God and the country, as I am now compelled to say under the solemn duties of a judge, bound by my official oath to sustain the supremacy of the constitution and the law, "THE PRISONER MUST BE REMANDED." That was not a pleasant judgment to the party which had elevated him to the Bench, and by reason of it he failed of renomination, but today in the long list of judges of the Ohio Supreme Court none stands higher than he.

The lawyer's hope is that he may die at his post, either on the Bench or at the Bar. He knows too well that if he leaves the scenes of his legal controversies he will soon be lost to sight, and if his name is not forgotten, his profession will be, no matter how great a lawyer he may have been, and when he dies, even the empty honor of a Bar meeting to embalm his memory in the court records, which so short a time before bore witness of his busy life, may be denied him. And fortunately few lawyers if they had the inclination, are possessed of the means to retire from the active practice. As a class they are not moneysavers; while their advice is sought and taken as to the making of large investments, they do not make them themselves. "The law is a jealous mistress" it hath been said, and turn aside for mere money making means that she will turn her face from you and know you no more.

While the lawyer strives with all his strength in his client's cause and for the time knows nothing but his client's interest, if he is opposed by honorable counsel, all the counsel do, as the immortal Bard has said, "Strive mightily, but eat and drink as friends." This is because he recognizes that counsel on the other side strive as he does for the establishment of justice. He does not regard the contest as waged by reason of personal enmity and, while maintaining his friendly relations with opposing counsel, relaxes not one jot from his vigilance in his client's interest. If he should, he would be as despised by opposing counsel as by his own client.

In such ways as I have striven to hint at the lawyer fits himself to be a minister of that law which is founded on eternal justice; by the variety of learning with which he is compelled to store his mind he

becomes a broad man; by his daily contests in the courts he is taught respect for the opinion of others, and that only honesty, vigilance and industry can lead him to the front of his profession, and by his respect for the law he becomes the good citizen, careful of the rights of each, and jealous of the rights of all. It is such men that caused the poet to say':

"What constitutes a State?

Men who their duties know,

But know their rights, and knowing dare maintain.
And sovereign law, that State's collected will,

O'er thrones and globes elate,

Sits empress, crowning good, repressing ill.”

Columbus, Ohio, May, 1896.

GILBERT H. STEWART.

Obio Watercraft Law.

This law is found in the Revised Statutes, Sections 5880 to 5894 The first section provides that "any steamboat or other watercraft, navigating the waters within or bordering upon this State, shall be liable, and such liability shall be a lien thereon, for all debts contracted on account thereof, by the master, owner, steward, consignee or other agent, for materials, supplies or labor in the building, repairing, furnishing or equipping of the same, or for insurance, or due for warfage, and also for damages arising out of any contract for the transportation of goods or persons, or for injuries done to persons or property by such craft, or for any damage or injury done by the captain, mate or other officer thereof, or by any person under the order or sanction of either of them, to any person who is a passenger or hand on such steamboat or other watercraft, at the time of the infliction of such damage or injury.”

The succeeding sections provide for the enforcement of the lien created by this law by a proceeding against the craft by name, that is, by an action in rem.

How far is the statute constitutional then?

The judicial power of the federal government extends "to all cases of admiralty and maritime jurisdiction."1

The first Congress, by the Judiciary Act of 1789, delegated to the federal District Courts, under this constitutional grant, “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, etc., *** saving to suitors in all cases the right of a com

(1) U.S. Constitution, Art. 3-Paragraph 2.

mon law remedy, where the common law is competent to give it."2 It was claimed that our watercraft law was in conflict with the federal constitution, insofar as it provided for an action in rem, on a maritime cause of action, in the State courts; because an action in rem against a vessel is a civil law action, and not a common law remedy, within the saving clause of the Judiciary Act. The federal Supreme Court early adopted this reasoning. Our Ohio Supreme Court held, however, that the saving clause was intended to give federal and state courts concurrent jurisdiction of all actions, in personam or in rem, against vessels; and declared the watercraft law constitutional in all respects. 3

In 1874 the federal Supreme Court declared that the lien created by the state watercraft laws was valid; but that, when the cause of action out of which the lien arose was maritime in its nature, the federal courts had exclusive jurisdiction of an action in rem to enforce it1

Then the Ohio Supreme Court reconsidered the question, and, in an elaborate opinion rendered by Judge Day, reversed its previous holdings, cited above, and placed itself in line with the Lottawana decision.

Thus was finally evolved the rule: That, if the cause of action be maritime in its nature, the lien, whether arising from the general maritime law or created by the state law, can be enforced only in the federal courts; but, if the cause of action be non-maritime, the state law lien may be enforced only in the state courts.

To illustrate: For supplies or repairs furnished in a foreign port the general maritime law creates the lien; for supplies or repairs furnished in the state to which the vessel belongs the watercraft law creates the lien; and in either case, the cause of action being maritime, the remedy in rem must be sought in the federal courts. But, for the original construction of a vessel, or for damage done by colliding with a dock, these being non-maritime causes of action, the watercraft law creates the lien, and it may be enforced by proceedings in rem in the state courts, while the federal courts cannot entertain jurisdiction of such causes of action, either in rem or in personam.

Of course the state courts may proceed in personam on any maritime cause of action. ROGER M. LEE.

(2) 1 U. S. Stats, at large, 76.

(3) Thompson vs. Steamboat Morton, 2 O. S. 26.

Steamboat Owen vs. Johuson, 2b. 142.
Keating vs. Spink, 3 id. 105.

(4) The Lottawana, 21 Wall, 558.

See also The J. E. Rumbell, 148 U. S. I. (5) Steamer Petrel vs. Dumont, 28 O, S, 602.

Western Reserve Law Journal

Published Monthly by Members of The Franklin T. Backus Law School of the Western Reserve University

EDITORIAL BOARD:

C. N. FISCUS, Editor-in-Chief,

139 Murray Hill, Cleveland, O.
A. R. MANNING, Business Manager, 17 Vestry St., Cleveland, O.
J. CLARK MANSFIELD,

E. A. FEAZEL,

Dec. 1st is now placed as the that day speed we voice the The structure is unique and Every thought of convenience

The new law school building is almost completed, and we anticipate our entrance into it with great joy. date for our removal, and when we bid sentiment of teacher and student alike. altogether handsome in its appearance. has been carefully considered and the arrangement of its compartments is perfect. In our next number we propose to give views of the interior and complete description. We are justly proud of our new quarters, and with the entrance of the law department thereinto, the school starts off with a new impetus which means a great stride toward its future prosperity. Our numbers have been doubled this fall in the prospect of a building adapted exclusively to law work. The class of '97 are especially grateful for the speedy completion of the building for their enjoyment of such rare privileges must necessarily be of short duration.

We understand the event is to be celebrated with a formal opening, at which time the alumni will take active steps towards the completion of its organization. We need not urge the necessity for such measures here, for it is generally felt to be the proper caper and needs only to be mentioned to be set in motion. The numbers composing such body must necessarily be small from the few years the school has been in session; yet what it lacks in numbers will, no doubt, be more than compensated in enthusiasm. It is a good thing, and we propose to push it along.