United States v. Bevans
16 U.S. 336 (1818)

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U.S. Supreme Court

United States v. Bevans, 16 U.S. 3 Wheat. 336 336 (1818)

United States v. Bevans

16 U.S. (3 Wheat.) 336

ON CERTIFICATION OF DIVISION OF OPINION AMONG THE JUDGES

OF THE CIRCUIT COURT FOR THE DISTRICT OF MASSACHUSETTS

Syllabus

Admitting that the third article of the Constitution of the United States, which declares that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction," vests in the United States exclusive jurisdiction of all such cases, and that a murder committed in the waters of a state where the tide ebbs and flows is a case of admiralty and maritime jurisdiction, Congress has not, in the eighth section of the Act of 1790, ch. 9, "for the punishment of certain offenses against the United States," so exercised this power as to confer on the courts of the United States jurisdiction over such murder.

Quaere whether courts of common law have concurrent jurisdiction with the admiralty over murder committed in bays, &c., which are enclosed parts of the sea?

Congress having, in the eighth section of the Act of 1790, ch. 9, provided for the punishment of murder, &c., committed "upon the high seas or in any river, haven, basin, or bay out of the jurisdiction of any particular state," it is not the offense committed but the bay, &c. in which it is committed that must be out of the jurisdiction of the state.

The grant to the United States in the Constitution of all cases of admiralty and maritime jurisdiction does not extend to a cession of the waters in which those cases may arise or of general jurisdiction over the same. Congress may pass all laws which a necessary for giving the most complete effect to the exercise of admiralty and maritime jurisdiction granted to the government of the union, but the general jurisdiction over the place, subject to this grant, adheres to the territory as a portion of territory not yet given away, and the residuary powers of legislation still remain in the state.

Congress have power to provide for the, punishment of offenses committed by perms serving on board a ship of war of the United States, wherever that ship may lie. But Congress have not exercised that power in the case of a ship lying in the waters of the United States; the words "within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the sole and exclusive jurisdiction of the United States," in the third section of the Act of 1790, ch. 9, not extending to a ship of war, but only to objects in their nature fixed and territorial.

Page 16 U. S. 337

The defendant, William Bevans, was indicted for murder in the Circuit Court for the District of Massachusetts. The indictment was founded on the 8th section of the Act of Congress of 30 April, 1790, ch. 9. and was tried upon the plea of not guilty. At the trial it appeared in evidence that the offense charged in the indictment, was committed by the prisoner on the sixth day of November, 1816, on board the United States ship of war Independence, rated a ship of the line of seventy-four guns, then in commission, and in the actual service of the United States, under the command of Commodore Bainbridge. At the same time, William Bevans was a marine duly enlisted, and in the service of the United States, and was acting as sentry regularly posted on board of said ship, and Peter Leinstrum (the deceased, named in the indictment) was at the same time duly enlisted and in

Page 16 U. S. 338

the service of the United States as cook's mate on board of said ship. The said ship was at the same time lying at anchor in the main channel of Boston harbors in waters of a sufficient depth at all times of tide for ships of the largest class and burden, and to which there is at all times a free and unobstructed passage to the open sea or ocean. The nearest land at low water mark to the position where the ship then lay, on various sides is as follows, viz., the end of the long wharf so called in the Town of Boston, bearing southwest by south, half south at the distance of half a mile; the western point of William's Island, bearing north by west, at the distance between one quarter and one-third of a mile; the navy yard of the United States at Charlestown, bearing northwest half-west, at the distance of three quarters of a mile, and Dorchester point so called, bearing south southeast, at the distance of two miles and one quarter, and the nearest point of governor's Island so called (ceded to the United States), bearing southeast half-east, at the distance of one mile and three quarters. To and beyond the position or place thus described, the civil and criminal processes of the courts of the State of Massachusetts, have hitherto constantly been served and obeyed. The prisoner was first apprehended for the offense in the District of Massachusetts.

The jury found a verdict that the prisoner, William Bevans, was guilty of the offense as charged in the indictment.

Upon the foregoing statement of facts, which was

Page 16 U. S. 339

stated and made under the direction of the court, the prisoner, by his counsel, after verdict, moved for a new trial, upon which motion two questions occurred, which also occurred at the trial of the prisoner. 1. Whether, upon the foregoing statement of facts, the offense charged in the indictment, and committed on board the said ship as aforesaid, was within the jurisdiction of the State of Massachusetts, or of any court thereof. 2. Whether the offense charged in the indictment, and committed on board the said ship as aforesaid, was within the jurisdiction or cognizance of the Circuit Court of the United States for the District of Massachusetts. Upon which questions the judges of the said circuit court were at the trial, and upon the motion for a new trial, opposed in opinion, and thereupon, upon the request of the district attorney of the United States, the same questions were ordered by the said court to be certified under the seal of the court to the Supreme Court to be finally decided.

Page 16 U. S. 386

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

The question proposed by the circuit court which will be first considered is whether the offense charged in this indictment was, according to the statement of facts which accompanies the question, "within the jurisdiction or cognizance of the Circuit Court of the United States for the District of Massachusetts?"

The indictment appears to be founded on the 8th sec. of the "act for the punishment of certain crimes against the United States." That section gives the courts of the union cognizance of certain offenses committed on the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state.

Whatever may be the constitutional power of Congress, it is clear that this power has not been so exercised in this section of the act as to confer on its courts jurisdiction over any offense committed in a river, haven, basin or bay, which river, haven, basin, or bay, is within the jurisdiction of any particular state.

What then is the extent of jurisdiction which a state possesses?

We answer without hesitation the jurisdiction of

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a state is coextensive with its territory; coextensive with its legislative power.

The place described is unquestionably within the original territory of Massachusetts. It is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded by the United States.

It is contended to have been ceded by that article in the Constitution which declares that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction." The argument is that the power thus granted is exclusive, and that the murder committed by the prisoner is a case of admiralty and maritime jurisdiction.

Let this be admitted. It proves the power of Congress to legislate in the case, not that Congress has exercised that power. It has been argued, and the argument in a favor of as well as that against the proposition deserves great consideration, that courts of common law have concurrent jurisdiction with courts of admiralty over murder committed in bays, which are enclosed parts of the sea, and that for this reason the offense is within the jurisdiction of Massachusetts. But in construing the act of Congress, the Court believes it to be unnecessary to pursue the investigation which has been so well made at the bar respecting the jurisdiction of these rival courts.

To bring the offense within the jurisdiction of the courts of the union, it must have been committed in a river, &c., out of the jurisdiction of any state. It is not the offense committed, but the bay in which it is committed, which must be out of the jurisdiction

Page 16 U. S. 388

of the state. If, then, it should be true that Massachusetts can take no cognizance of the offense, yet, unless the place itself be out of her jurisdiction, Congress has not given cognizance of that offense to its courts. If there be a common jurisdiction, the crime cannot be punished in the courts of the union.

Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise.

This is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction. It is obviously designed for other purposes. It is in the 8th section of the 2d article, we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.

It is observable that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the states. It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our Constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction.

It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty

Page 16 U. S. 389

and maritime jurisdiction is in the government of the union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts. Suppose for example the power of regulating trade had not been given to the general government. Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction, have divested Massachusetts of the power to regulate the trade of her bay? As the powers of the respective governments now stand, if two citizens of Massachusetts step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction, and punishable by the laws of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the bay in which this murder was committed, is not out of the jurisdiction of a state, and the Circuit Court of Massachusetts is not authorized, by the section under consideration, to take cognizance of the murder which had been committed.

It may be deemed within the scope of the question certified to this Court to inquire whether any other part of the act has given cognizance of this murder to the Circuit Court of Massachusetts.

The third section enacts

"That if any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place, or district of country, under the sole and exclusive jurisdiction of the

Page 16 U. S. 390

United States, commit the crime of willful murder, such person or persons, on being thereof convicted, shall suffer death."

Although the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war on the deck of which it was committed is, it has been said, "a place within the sole and exclusive jurisdiction of the United States," whose courts may consequently take cognizance of the offense.

That a government which possesses the broad power of war, which "may provide and maintain a navy," which "may make rules for the government and regulation of the land and navel forces," has power to punish an offense committed by a marine on board a ship of war, wherever that ship may lie, is a proposition never to be questioned in this Court. On this section, as on the 8th, the inquiry respects not the extent of the power of Congress, but the extent to which that power has been exercised.

The objects with which the word "place" is associated are all, in their nature, fixed and territorial. A fort, an arsenal, a dockyard, a magazine, are all of this character. When the sentence proceeds with the words, "or in any other place or district of country under the sole and exclusive jurisdiction of the United States," the construction seems irresistible that, by the words "other place" was intended another place of a similar character with those previously enumerated, and with that which follows. Congress might have omitted in its enumeration some similar place within its exclusive jurisdiction

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which was not comprehended by any of the terms employed to which some other name might be given, and therefore the words "other place" or "district of country" were added, but the context shows the mind of the legislature to have been fixed on territorial objects of a similar character.

This construction is strengthened by the fact that at the time of passing this law, the United States did not possess a single ship of war. It may therefore be reasonably supposed that a provision for the punishment of crimes in the navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark that afterwards, when a navy was created, and Congress did not proceed to make rules for its regulation and government, no jurisdiction is given to the courts of the United States, of any crime committed in a ship of war, wherever it may be stationed. Upon these reasons the court is of opinion that a murder committed on board a ship of war, lying within the harbor of Boston, is not cognizable in the Circuit Court for the District of Massachusetts; which opinion is to be certified to that court.

The opinion of the Court on this point is believed to render it unnecessary co decide the question respecting the jurisdiction of the state court in the case.

Certificate accordingly.

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