Dissenting Opinion: Brewer, Brown, JJ. so much of the testimony, or such a statement of the proofs made or offered, as may be necessary to explain the bearing of the rulings upon the issues involved." If he objects to a specific portion of a charge, he should state only that portion. Putting in the whole charge is clearly against rule 4 of this court, and has been explicitly condemned. United States v. Rindskopf, 105 U. S. 418. Indeed, the single function of a bill of exceptions is to bring upon the record so much of the proceedings as will disclose the precise question which the party desires to have ruled upon, and, when prepared by counsel and presented to the court, if it states the facts truly, the judge ought to sign it; and it is unnecessary for it to set forth affirmatively that there was no other error in the proceedings, or to state all the facts of the case in order to disclose that there was no other error. Bearing in mind this, which is confessedly the scope and purpose of a bill of exceptions, I notice that in this bill not a word is said about the absence of the jurors from the box, the personal presence or absence of the defendant, or whether the defendant was brought face to face with the jurors. If he had any fault to find in respect to these matters, the facts in respect thereto should have been explicitly stated. That he made no claim of wrong therein, is evident from the fact that he does not mention them. Examining the language of the bill of exceptions carefully, it states that two lists were given, one to plaintiff and one to defendant; and the court directed them to proceed with their challenges, each separately of the other, and without knowledge of what challenges were being made by the other. Then follow the exceptions, "to which method of proceeding in that regard defendant at the time excepted." I respectfully submit that language could not be used which makes clearer the fact that the objection ran alone to the fact that each party was required to make its challenges independently of the other, and without knowledge of what the other was doing. It is not simply said "to which method of proceeding," but as if to limit carefully to the particular matter, it says "to which method of proceeding in that regard." And at the close of the recitals it is further stated, " to the happen Dissenting Opinion: Brewer, Brown, JJ. ing of the fact that both parties challenged the same three jurors, the defendant at the time objected." This is all which in any way tends to show that there was anything wrong in the matter of challenges, or that anything took place in the absence of the defendant. Again, if the defendant had taken no exceptions to these proceedings, it is settled that this court would not inquire as to whether there was error in them. In Alexander v. United States, 138 U. S. 353, 355, a case coming from the same district, the precise state of facts in respect to the empanelling of the jury appeared, but without any exceptions. The response made by the court to the assignment of error was in these words: "The decisive answer to this assignment is, that the attention of the court does not seem to have been called to it until after the conviction, when the defendant made it a ground of his motion for a new trial. It is the duty of counsel seasonably to call the attention of the court to any error in empanelling the jury, in admitting testimony, or in any other proceeding during the trial, by which his rights are prejudiced, and in case of an adverse ruling to note an exception." Of course, then, if the matters are not vital to the trial, and may be waived by failure to object, as thus decided, clearly the defendant can take advantage of nothing to which he does not except. Hence, supposing that after the foregoing recital in the bill of exceptions there had appeared further recitals showing various irregularities in respect to the challenges, sufficient of themselves, if excepted to, to compel reversal, but with no following exception, clearly, under the rule laid down in Alexander v. The United States, we should have been compelled to ignore them. Surely then, when the exception runs to a specific matter, it cannot be broadened so as to extend to a matter, which is confessedly not stated, but is only inferred as probable from what is stated. In short, when the journal entry, which is of itself a part of the record, and which is the court's statement of what took place, recites the personal presence of the defendant and the full exercise of the right of challenge in language which is the ordinary formula of journal entries, and which has been uniformly regarded as VOL. CXLVI-25 Dissenting Opinion: Brewer, Brown, JJ. sufficient, to infer from the bill of exceptions prepared by the defendant, whose purpose is only to present the facts bearing upon the particular error alleged by him, and which only specifies in terms a single act to which exception is taken, to wit, the fact that plaintiff and defendant were compelled to challenge peremptorily, without knowledge of the other's challenges, that any challenges took place in the absence of the defendant, and to hold that an exception which is precise to a particular matter can be broadened so as to include other matters not specified, and thereupon to set aside a judgment of guilty solemnly rendered, seems to me to overturn established rules governing appellate proceedings, to destroy confidence in courts, and to work great wrong to the public. Further than this, in the brief of counsel for the defendant there is no claim that the jury were not present in the box, face to face with the defendant, when he was called upon to make his challenges. The only points they make in respect to the matter are that the mode of designating the jury was not recognized by the statutes of the State of Arkansas, nor in conformity with any rule prescribed by Congress; and that by reason of the fact that three jurors were challenged by both the government and defendant, the latter was really deprived of three peremptory challenges. Now, if it should prove to be the case as it seems to me is not only possible but probable-that the defendant was in fact present in the court-room during all the challenges; that the entire panel of jurors was called into the box before him; that in their presence he was allowed and received all the challenges for cause he desired to make; and that only after a full inspection of the jury, and a questioning of each one so far as was desired, were the lists placed in the hands of the respective counsel for peremptory challenges, will not the ordinary citizen believe that substantial justice would have been done if this court had omitted to read into the record something which is not expressly stated therein, which defendant's counsel did not claim to have happened, and which did not in fact happen. So far as respects the matter of contemporaneous challeng Syllabus. ing, at common law, and generally where no order is prescribed by statute, the defendant is required to make all his challenges before the government is called upon for any. In that aspect of the law, contemporaneous challenging works to the injury of the government rather than to that of the defendant. Further, in the only case in which the precise question has been presented, State v. Hays, 23 Missouri, 287, cited approvingly in Turpin v. The State, 55 Maryland, 462, the decision was in favor of the validity of such manner of challenge. In view of the discretion which in the absence of statute is confessedly vested in the trial court as to the manner of challenges, there was no error in this sufficient to justify a new trial. I am authorized to say that MR. JUSTICE BROWN also dissents. ILLINOIS CENTRAL RAILROAD COMPANY v. ILLINOIS. CHICAGO v. ILLINOIS CENTRAL RAILROAD COMPANY. ILLINOIS v. ILLINOIS CENTRAL RAILROAD COMPANY. APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. Nos. 419, 608, 609. Argued October 12, 13, 14, 1892. - Decided December 5, 1892. The ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. The same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies, which Syllabus. obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea, and the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations. The roadway of the Illinois Central Railroad at Chicago as constructed, two hundred feet in width, for the whole distance allowed for its entry within the city, with the tracks thereon, and with all the guards against danger in its approach and crossings, and the breakwater beyond its tracks on the east, and the necessary works for the protection of the shore on the west, in no respect interfere with any useful freedom in the use of the waters of the lake for commerce, foreign, interstate or domestic; and, as they were constructed under the authority of the law, (Stat. of February 17, 1851, Laws Ill. 1851, 192,) by the requirement of the city as a condition of its consent that the company might locate its road within its limits, (Ordinance of June 14, 1852,) they cannot be regarded as such an encroachment upon the domain of the State as to require the interposition of the court for their removal or for any restraint in their use. The Illinois Central Railroad Company never acquired by the reclamation from the waters of the lake of the land upon which its tracks are laid, or by the construction of the road and works connected therewith, an absolute fee in the tract reclaimed, with a consequent right to dispose of the same to other parties, or to use it for any other purpose than the one designated - the construction and operation of a railroad thereon, with one or more tracks and works, in connection with the road or in aid thereof. That company acquired by the construction of its road and other works no right as a riparian owner to reclaim still further lands from the waters of the lake for its use, or for the construction of piers, docks and wharves in the furtherance of its business; but the extent to which it could reclaim the land under water was limited by the conditions of the ordinance of June 14, 1852, which was simply for the construction of a railroad on a tract not to exceed a specified width, and of works connected therewith. The construction of a pier or the extension of any land into navigable waters for a railroad or other purposes, by one not the owner of lands on the shore, does not give the builder of such pier or extension, whether an individual or corporation, any riparian rights. The railroad company owns and has the right to use in its business the reclaimed land and the slips and piers in front of the lots on the lake north of Randolph Street which were acquired by it, and in front of Michigan Avenue between the lines of Twelfth and Sixteenth streets, extended, unless it shall be found by the Circuit Court on further examination, that the piers as constructed extend beyond the point of naviga bility in the waters of the lake; about which this court is not fully satisfied from the evidence in this case. The railroad company further has the right to continue to use, as an addi |