1. The clause of the Constitution, Art. I, § 8, specifically
granting to Congress the power "to define and punish piracies and
felonies committed on the high seas, and offenses against the law
of nations," and the general provision of Art. III, § 2, extending
the judicial power "to all cases of admiralty and maritime
jurisdiction," are the results of separate steps, independently
taken in the Convention, by which the jurisdiction in admiralty,
previously divided between the Confederation and the States, was
transferred to the National Government. P.
289 U. S.
146.
2. In view of the history of the two clauses and the manner of
their adoption, the grant of power to define and punish piracies
and felonies on the high seas cannot be deemed to be a limitation
on the powers, either legislative or judicial, conferred on the
National Government by Art. III, § 2. P.
289 U. S.
149.
3. To construe the one clause as limiting, rather than
supplementing, the other would be to ignore their history, and,
without effecting any discernible purpose of their enactment, to
deny to both the states and the national government powers which
were common attributes of sovereignty before the adoption of the
Constitution, including the power to define and punish crimes, of
less gravity than felonies, committed on vessels of the United
States while on the high seas, and crimes of every grade committed
on them while in foreign territorial waters. P.
289 U. S.
149.
4. The jurisdiction over admiralty and maritime cases extends to
crimes committed on vessels of the United States while in navigable
waters within the territorial jurisdiction of foreign sovereigns.
P.
289 U. S.
150.
Page 289 U. S. 138
5. The jurisdiction is not affected by the fact that the vessel
is on a river at a place remote from the sea where the water is not
salt or tidal. P.
289 U. S.
153.
6. Section 272 of the Criminal Code, making murder and other
offenses punishable
"when committed within the admiralty and maritime jurisdiction
of the United States and out of the jurisdiction of any particular
state, on board any vessel belonging in whole or in part to the
United States"
or any of its citizens, etc., is broad enough to include crimes
in the territorial waters of foreign sovereignties. Pp.
289 U. S. 145,
289 U. S.
155.
7. Congress, by incorporating in the statute the very language
of the constitutional grant of power, has made its exercise of the
power coextensive with the grant. P.
289 U. S.
155.
8. The general rule that criminal statutes of the United States
are not to be given extraterritorial effect is inapplicable to our
merchant vessels. P.
289 U. S.
155.
9. A merchant ship, for purposes of the jurisdiction of the
courts of the sovereignty whose flag it flies to punish crimes
committed upon it, is deemed to be a part of the territory of that
sovereignty, and not to lose that character when in navigable
waters within the territorial limits of another sovereignty. P.
289 U. S.
155.
10. For some purposes, the jurisdiction to punish crimes
committed on a foreign vessel in territorial waters is concurrent
in the territorial sovereign and the sovereign of the vessel's
flag. P.
289 U. S.
157.
11. In the absence of any controlling treaty provision, and of
any assertion of jurisdiction by the territorial sovereign, it is
the duty of the courts of the United States to apply to offenses
committed by its citizens on vessels flying its flag, its own
statutes, interpreted in the light of recognized principles of
international law. P.
289 U. S. 159.
3 F. Supp. 134, reversed.
Appeal from a judgment sustaining a demurrer to an indictment,
which charged the appellee, an American citizen, with having
murdered another American citizen aboard an American ship in
foreign territorial waters.
Page 289 U. S. 144
MR. JUSTICE STONE delivered the opinion of the Court.
By indictment found in the District Court for Eastern
Pennsylvania, it was charged that appellee, a citizen of the United
States, murdered another citizen of the United States upon the
Steamship
Padnsay, an American vessel,
Page 289 U. S. 145
while at anchor in the Port of Matadi, in the Belgian Congo, a
place subject to the sovereignty of the Kingdom of Belgium, and
that appellee, after the commission of the crime, was first brought
into the Port of Philadelphia, a place within the territorial
jurisdiction of the District Court. By stipulation, it was
conceded, as though stated in a bill of particulars, that the
Padnsay, at the time of the offense charged, was
unloading, being attached to the shore by cables at a point 250
miles inland from the mouth of the Congo river.
The District Court, following its earlier decision in
United
States ex rel. Maro v. Mathues, 21 F.2d
533,
aff'd, 27 F.2d 518, sustained a demurrer to the
indictment and discharged the prisoner on the ground that the court
was without jurisdiction to try the offense charged. 3 F. Supp.
134. The case comes here by direct appeal under the Act of March 2,
1907, c. 2564, 34 Stat. 1264, 18 U.S.C. § 682, and § 238 of the
Judicial Code, as amended by Act of February 13, 1925, 28 U.S.C. §
345, the court below certifying that its decision was founded upon
its construction of § 272 of the Criminal Code, 18 U.S.C. §
451.
Sections 273 and 275 of the Criminal Code, 18 U.S.C. §§ 452,
454, define murder and fix its punishment. Section 272, [
Footnote 1] upon the construction of
which the court below rested its decision, makes punishable
offenses defined by other sections of the Criminal Code, among
other cases,
Page 289 U. S. 146
"when committed within the admiralty and maritime jurisdiction
of the United States and out of the jurisdiction of any particular
state on board any vessel belonging in whole or in part to the
United States"
or any of its nationals. And, by § 41 of the Judicial Code, 28
U.S.C. § 102, venue to try offenses "committed upon the high seas,
or elsewhere out of the jurisdiction of any particular state or
district" is "in the district where the offender is found, or into
which he is first brought." As the offense charged here was
committed on board a vessel lying outside the territorial
jurisdiction of a state,
see Wynne v. United States,
217 U. S. 234;
United States v. Rodgers, 150 U.
S. 249,
150 U. S. 265,
and within that of a foreign sovereignty, the court below was
without jurisdiction to try and punish the offense unless it was
within the admiralty and maritime jurisdiction of the United
States.
Two questions are presented on this appeal: first, whether the
extension of the judicial power of the federal government "to all
cases of admiralty and maritime Jurisdiction," by Art. III, § 2, of
the Constitution confers on Congress power to define and punish
offenses perpetrated by a citizen of the United States on board one
of its merchant vessels lying in navigable waters within the
territorial limits of another sovereignty; and, second, whether
Congress has exercised that power by the enactment of § 272 of the
Criminal Code, under which the indictment was found.
The court below thought, as appellee argues, that as § 8 of Art.
I of the Constitution specifically granted to Congress the power
"to define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations," and "to make rules
concerning captures on land and water," that provision must be
regarded as a limitation on the general provision of § 2 of Art.
III, that the judicial power shall extend "to all cases of
admiralty and maritime Jurisdiction;" that, as the specific
Page 289 U. S. 147
grant of power to punish offenses outside the territorial limits
of the United States was thus restricted to offenses occurring on
the high seas, the more general grant could not be resorted to as
extending either the legislative or judicial power over offenses
committed on vessels outside the territorial limits of the United
States and not on the high seas.
Before the adoption of the Constitution, jurisdiction in
admiralty and maritime cases was distributed between the
Confederation and the individual states. Article IX of the Articles
of Confederation provided that
"the United States in Congress assembled, shall have the sole
and exclusive right and power . . . of establishing rules for
deciding in all cases, what captures on land or water shall be
legal, . . . appointing courts for the trial of piracies and
felonies committed on the high seas and establishing courts for
receiving and determining finally appeals in all cases of captures.
. . ."
So much of the general admiralty and maritime jurisdiction as
was not included in this grant of power remained with the states.
The powers thus granted were in substance the same as those later
conferred on the national government by Article I, § 8, of the
Federal Constitution. This section was adopted to carry out a
resolution of the Convention "that the national legislature ought
to possess the legislative rights vested in Congress by the
Confederation." Its primary purpose and effect was to transfer to
the newly organized government the powers in a admiralty matters
previously vested in the Confederation. [
Footnote 2]
Page 289 U. S. 148
A proposal independently made and considered in the Convention
that "the admiralty jurisdiction ought to be given wholly to the
national government" resulted in the adoption of Article III, § 2,
by which the judicial power of the United States was extended to
all cases of admiralty and maritime jurisdiction. [
Footnote 3]
This section has been consistently interpreted as adopting for
the United States the system of admiralty and maritime law as it
had been developed in the admiralty courts of England and the
Colonies, and, by implication, conferring on Congress the power,
subject to well recognized limitations not here material, [
Footnote 4] to alter, qualify, or
Page 289 U. S. 149
supplement it as experience or changing conditions may require.
Panama R. Co. v. Johnson, 264 U.
S. 375,
264 U. S.
386-388;
Crowell v. Benson, 285 U. S.
22,
285 U. S. 39;
see The Oconee, 280 F. 927;
United
States v. Bevans, 3 Wheat. 336,
16 U. S.
389.
In view of the history of the two clauses and the manner of
their adoption, the grant of power to define and punish piracies
and felonies on the high seas cannot be deemed to be a limitation
on the powers, either legislative or judicial, conferred on the
national government by Article III, § 2. The two clauses are the
result of separate steps independently taken in the Convention, by
which the jurisdiction in admiralty, previously divided between the
Confederation and the states, was transferred to the national
government. It would be a surprising result, and one plainly not
anticipated by the framers or justified by principles which ought
to govern the interpretation of a Constitution devoted to the
redistribution of governmental powers, if part of them were lost in
the process of transfer. To construe the one clause as limiting,
rather than supplementing, the other would be to ignore their
history, and without effecting any discernible purpose of their
enactment, to deny to both the states and the national government
powers which were common attributes of sovereignty before the
adoption of the Constitution. The result would be to deny to both
the power to define and punish crimes of less gravity than felonies
committed on vessels of the United States while on the
Page 289 U. S. 150
high seas and crimes of every grade committed on them while in
foreign territorial waters.
As we cannot say that the specific grant of power to define and
punish felonies on the high seas operated to curtail the
legislative or judicial power conferred by Article III, § 2, we
come to the question principally argued, whether the jurisdiction
over admiralty and maritime cases which it gave extends to the
punishment of crimes committed on vessels of the United States
while in foreign waters. As was pointed out by Mr. Justice Story in
the course of an elaborate review of the history of admiralty
jurisdiction in
De Lovio v. Boit, 7 Fed.Cas. 418, 438, No.
3,776, admiralty "from the highest antiquity, has exercised a very
extensive criminal jurisdiction, and punished offences by fine and
imprisonment." [
Footnote 5] The
English courts have
Page 289 U. S. 151
consistently held that jurisdiction is not restricted to vessels
within the navigable waters of the realm, but follows its ships
upon the high seas and into ports and rivers within the territorial
jurisdiction of foreign sovereigns.
Queen v. Carr &
Wilson, 10 Q.B.D. 76;
Queen v. Anderson, L.R., 1
Crown cases Reserved 161;
Rex v. Allen, 1 Moody C.C. 494;
see Rex v. Jemot, 1 Russell on Crimes, 4th ed. 153.
The criminal jurisdiction of the United States is wholly
statutory,
See United States v.
Hudson, 7 Cranch 32, but it has never been doubted
that the grant of admiralty and maritime jurisdiction to the
federal government includes the legislative power to define and
punish crimes committed upon vessels lying in navigable waters of
the United States. From the very organization of the government,
and without intermission, Congress has also asserted the power,
analogous to that exercised by English courts of admiralty, to
punish crimes committed on vessels of the United States while on
the high seas or on navigable waters not within the territorial
jurisdiction of
Page 289 U. S. 152
a state. The Act of April 30, 1790, c. 9, § 8, 1 Stat. 112, 113,
provided for the punishment of murder committed "upon the high
seas, or in any river, haven, basin or bay, out of the jurisdiction
of any particular state," and provided for the trial of the
offender in the district where he might be apprehended or "into
which he may first be brought." Section 12 of this Act dealt with
manslaughter, but only when committed upon the high seas. It is
true that, in
United States v.
Bevans, 3 Wheat. 336, the prisoner, charged with
murder on a warship in Boston Harbor, was discharged, as was one
charged with manslaughter committed on a vessel on a Chinese River
in
United States v.
Wiltberger, 5 Wheat. 76. But the judgments were
based not upon a want of power in Congress to define and punish the
crimes charged, but upon the ground that the statute did not apply,
in the one case, for the reason that the place of the offense was
not out of the jurisdiction of a state, and in the other because
the offense, manslaughter, was not committed on the high seas.
[
Footnote 6]
The Act of March 3, 1825, c. 65, § 4, 4 Stat. 115, provided for
the punishment of any person committing murder
"upon the high seas, or in any arm of the sea, or in any river,
haven, creek, basin or bay, within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of
any particular state,"
and § 22 provided for the punishment of assault with a
dangerous
Page 289 U. S. 153
weapon committed under similar circumstances. [
Footnote 7] The provisions of the latter
section, carried into § 5346 of the Revised Statutes, were upheld
in
United States v. Rodgers, supra, as a constitutional
exercise of the power of Congress to define and punish offenses
occurring in American vessels while within territorial waters of
another sovereignty. Rodgers had been convicted of assault with a
dangerous weapon, committed on a vessel of the United States lying
in the Detroit River within the territorial jurisdiction of Canada,
and his conviction was sustained by this Court. It was assumed that
the statute was applicable only with respect to offenses committed
on the high seas and waters tributary to them, and the decision
turned on whether the Great Lakes were to be deemed "high seas"
within the meaning of the statute. It was held that they were, and
the power of Congress to punish offenses committed on an American
vessel within the territorial waters of Canada, tributary to the
Lakes, was expressly affirmed.
As the offense charged here appears to have been committed on an
American vessel while discharging cargo in port, the jurisdiction
is not affected by the fact that she
Page 289 U. S. 154
was then at a point on the Congo remote from the sea, where it
does not affirmatively appear that the water is salt or tidal. On
this point also,
United States v. Rodgers, supra, is
controlling, for there the offense committed within a foreign
territorial jurisdiction was upon nontidal fresh water. [
Footnote 8]
Page 289 U. S. 155
The appellee insists that, even though Congress has power to
define and punish crimes on American vessels in foreign waters, it
has not done so by the present statute, since the criminal
jurisdiction of the United States is based upon the territorial
principle, and the statute cannot rightly be interpreted to be a
departure from that principle. But the language of the statute
making it applicable to offenses committed on an American vessel
outside the jurisdiction of a state "within the admiralty and
maritime jurisdiction of the United States" is broad enough to
include crimes in the territorial waters of a foreign sovereignty.
For Congress, by incorporating in the statute the very language of
the constitutional grant of power, has made its exercise of the
power coextensive with the grant.
Compare 71 U.
S. Trevor, 4 Wall. 555.
It is true that the criminal jurisdiction of the United States
is in general based on the territorial principle, and criminal
statutes of the United States are not by implication given an
extraterritorial effect.
United States v. Bowman,
260 U. S. 94,
260 U. S. 98;
compare Blackmer v. United States, 284 U.
S. 421. But that principle has never been thought to be
applicable to a merchant vessel which, for purposes of the
jurisdiction of the courts of the sovereignty whose flag it flies
to punish crimes committed upon it, is deemed to be a part of the
territory of that sovereignty, and not to lose that character when
in navigable
Page 289 U. S. 156
waters within the territorial limits of another sovereignty.
United States v. Rodgers, supra; compare Thomas v. Lane, 2
Sumn. 1;
Queen v. Anderson, supra; Queen v. Carr & Wilson,
supra; Rex v. Allen, supra; Rex v. Jemot, supra. This
qualification of the territorial principle in the case of vessels
of the flag was urged by Mr. Webster while Secretary of state, in
his letter to Lord Ashburton [
Footnote 9] of August 1, 1842, quoted with approval in
United States v.
Page 289 U. S. 157
Rodgers, supra, 150 U. S.
264-265. Subject to the right of the territorial
sovereignty to assert jurisdiction over offenses disturbing the
peace of the port, it has been supported by writers on
international law, and has been recognized by France, Belgium, and
other continental countries, as well as by England and the United
States.
See Moore, International Law Digest, vol. 2, 287,
297; Fiore, International Law Codified, translated by E. M.
Borchard, 192, 193; Wheaton, International Law, vol. I, 245; Hall,
International Law (8th Ed.) 253-258; Jessup, The Law of Territorial
Waters, 144-193.
In view of the wide recognition of this principle of
extraterritorial jurisdiction over crimes committed on merchant
vessels and its explicit adoption in
United States v. Rodgers,
supra, we cannot say that the language of the present statute
punishing offenses on United States vessels out of the jurisdiction
of a state, "when committed within the admiralty and maritime
jurisdiction of the United States," was not intended to give effect
to it. If the meaning of the statute were doubtful, the doubt would
be resolved by the report on these sections by the Special Joint
Committee on the Revision of the Laws, 60th Congress, 1st Sess.,
Rep. 10, part 1, p. 10, in which it was pointed out that the
jurisdiction extends to vessels of the United States when on
navigable waters within the limits of a foreign state, and
"all cases arising on board such vessels while on any such
waters, are clearly cases within the admiralty and maritime
jurisdiction of the United States."
A related but different question, not presented here, may arise
when jurisdiction over an offense committed on a foreign vessel is
asserted by the sovereignty in whose waters it was lying at the
time of its commission, since, for some purposes, the jurisdiction
may be regarded as concurrent, in that the courts of either
sovereignty may try the offense.
Page 289 U. S. 158
There is not entire agreement among nations or the writers on
international law as to which sovereignty should yield to the other
when the jurisdiction is asserted by both.
See Jessup, the
Law of Territorial Waters, 144-193. The position of the United
States exemplified in
Wildenhus' Case, 120 U. S.
1, has been that, at least in the case of major crimes
affecting the peace and tranquillity of the port, the jurisdiction
asserted by the sovereignty of the port must prevail over that of
the vessel. In that case, the Belgian Consul sought release on
habeas corpus of Wildenhus, a seaman, who was held in a New Jersey
jail on a charge of homicide committed on a Belgian vessel lying in
New Jersey waters, on the ground that Article XI of the Convention
between Belgium and the United States of March 9, 1880, 21 Stat.
781, gave consular officers of the sovereignty of the vessel sole
cognizance of offenses on board ship, except those of a nature to
disturb the tranquillity and public order on shore and those
involving a person not belonging to the crew. The court construed
the Convention as inapplicable to the crime of murder, and upheld
the jurisdiction of the local court as conforming to the principles
of international law. It said, p.
120 U. S. 12:
"And so, by comity, it came to be generally understood among
civilized nations that all matters of discipline and all things
done on board which affected only the vessel or those belonging to
her, and did not involve the peace or dignity of the country or the
tranquility of the port, should be left by the local government to
be dealt with by the authorities of the nation to which the vessel
belonged as the laws of that nation or the interests of its
commerce should require. But, if crimes are committed on board of a
character to disturb the peace and tranquillity of the country to
which the vessel has been brought, the offenders have never, by
comity or usage, been entitled to any exemption from the operation
of the local laws for their punishment if the local tribunals see
fit to assert their authority. "
Page 289 U. S. 159
This doctrine does not impinge on that laid down in
United
States v. Rodgers, supra, that the United States may define
and punish offenses committed by its own citizens on its own
vessels while within foreign waters where the local sovereign has
not asserted its jurisdiction. [
Footnote 10] In the absence of any controlling treaty
provision, and any assertion of jurisdiction by the territorial
sovereign, it is the duty of the courts of the United States to
apply to offenses committed by its citizens on vessels flying its
flag, its own statutes, interpreted in the light of recognized
principles of international law. So applied, the indictment here
sufficiently charges an offense within the admiralty and maritime
jurisdiction of the United States, and the judgment below must
be
Reversed.
[
Footnote 1]
"§ 272. The crimes and offenses defined in this chapter shall be
punished as herein prescribed:"
"First: When committed upon the high seas, or on any other
waters within the admiralty and maritime jurisdiction of the United
states and out of the jurisdiction of any particular state, or when
committed within the admiralty and maritime jurisdiction of the
United states and out of the jurisdiction of any particular state
on board any vessel belonging in whole or in part to the United
states or any citizen thereof, or to any corporation created by or
under the laws of the United states, or of any state, Territory, or
District thereof. . . ."
[
Footnote 2]
On July 16, 1787, the Convention agreed
nem. con. "that
the national legislature ought to possess the legislative rights
vested in Congress by the Confederation." This proposal was
committed to the Committee of Detail in resolution VI, of July
26th. The Committee, on August 6th, in Article VII of their draft,
recommended a provision, based on the Articles of Confederation,
which, as formulated by the Convention on August 17th, and amended
in matters not now material by the Committee on Style, was included
in Article I, § 8, of the Constitution.
See Madison's
Diary, International Edition, pp. 260, 333, 340, 341, 415, 416.
[
Footnote 3]
On June 5, 1787, Wilson stated to the Convention that he thought
the admiralty jurisdiction should be given wholly to the national
government. Resolution XVI, which was referred to the Committee on
Detail on July 26th, provided that the jurisdiction of the national
judiciary "shall extend to cases arising under laws passed by the
general legislature and to such other questions as involve the
natural peace and harmony." Wilson was one of the five members of
the Committee on Detail, chosen on July 24th, which reported,
August 6th, Article XI, dealing with the jurisdiction of federal
courts, and containing in § 3 a provision extending the
jurisdiction of the Supreme Court "to all cases of admiralty and
maritime jurisdiction" which was ultimately incorporated in § 2 of
Article III of the Constitution as finally adopted. Madison's
Diary, International Edition, pp. 61, 336, 317, 318, 344.
[
Footnote 4]
In
Panama R. Co v. Johnson, 264 U.
S. 375,
264 U. S.
386-387, the Court said:
"when all is considered, therefore, there is no room to doubt
that the power of Congress extends to the entire subject, and
permits of the exercise of a wide discretion. But there are
limitations which have come to be well recognized. One is that
there are boundaries to the maritime law and admiralty jurisdiction
which inhere in those subjects, and cannot be altered by
legislation, as by excluding a thing falling clearly within them or
including a thing falling clearly without. Another is that the
spirit and purpose of the constitutional provision require that the
enactments -- when not relating to matters whose existence or
influence is confined to a more restricted field, as in
Cooley
v. Board of Wardens, 12 How. 299,
53 U. S.
319 -- shall be coextensive with and operate uniformly
in the whole of the United states.
Waring v.
Clarke, 5 How. 441,
46 U. S.
457;
The Lottawanna, 21 Wall.
558,
88 U. S. 574,
88 U. S.
577;
Butler v. Boston & Savannah S.S. Co.,
130 U. S.
527,
130 U. S. 556-557;
In re
Garnett, 141 U. S. 1,
141 U. S.
12;
Southern Pacific Co. v. Jensen,
244 U. S.
205,
244 U. S. 215;
Knickerbocker Ice Co. v. Stewart, 253 U. S.
149,
253 U. S. 164;
Washington v. Dawson & Co., 264 U. S.
219; 2 Story, Const., 5th ed., §§ 1663, 1664, 1672."
[
Footnote 5]
In England, serious offenses committed "upon the sea, or in any
other haven, river, creek or place where the admiral or admirals
have or pretend to have power, authority or jurisdiction" were,
after the statute 27 Henry VIII, c. 4, and 28 Henry VIII, c. 15,
tried according to the course of the common law before specially
constituted admiralty courts, the judges of which were designated
to sit by the Lord Chancellor. They were often common law judges
who sat as commissioners for the trial of crimes within the
admiralty and maritime jurisdiction. Holdsworth, History of English
Law (3d Ed.) vol. I, 550-552; Hale, Pleas of the Crown, vol. II,
17; Stephen, History of Criminal Law of England, vol. II, 16-23;
cf. Brooks, Trial of Captain Kidd, 40, 57. There is
evidence that, during the seventeenth century, the courts of
Virginia and Maryland tried felonies and piracies which, in
England, would have been within the jurisdiction of the Admiralty
Commissioners.
See Crump, Colonial Admiralty Jurisdiction
in the Seventeenth Century, 68. The practice under the statute, 28
Henry VIII, c. 15, was extended to the Colonies in cases of
"piracy, felonies and robberies," by statute 11 and 12 William III,
c. 7.
See 2 Stephen,
supra, 20. In Virginia, very
shortly before the enactment of this statute, an act was passed
adopting the provisions of the statute of Henry VIII. 3 Hening,
Statutes at Large of Virginia, 176. For instances of minor offenses
prosecuted in the Colonial Courts of Vice-Admiralty in the
eighteenth century,
see Hough's Cases in Vice-Admiralty
and Admiralty:
King v. Booth (1730), p. 12;
King v.
Burgess (1748), p. 56;
King v. White (1954), p. 81.
Eighteenth century Vice-Admiralty commissions in the Colonies
contain verbal grants of jurisdiction over crimes within the
admiralty jurisdiction. Publications of Colonial Society of
Massachusetts, vol. II, 237, 238; Benedict on Admiralty (5th Ed.)
787-811; Record Book of Maryland Court of Vice-Admiralty in
Manuscripts Division of the Library of Congress, fols. 74, 82. And
there is evidence of the trial of piracies in the Colonies,
see Jameson, Privateering and Piracy in the Colonial
Period, pp. 143, 278, note 1, 286, note 1,
and see 577 to
580.
Compare Rhode Island: Letters from Governors in
America, 1756, P.R.O.: CO.5.:17, p. 639 (Ms. copy in Library of
Congress), which indicates a trial at Providence for murder on the
high seas in a special admiralty court constituted under the
statute 11 and 12 William III. Captain Kidd, who was arrested in
Boston prior to 1700 for murder and piracy on the high seas, was
transported to England for trial before an admiralty court
organized pursuant to royal commission (
see 14 Howell's
state Trials, 123, 147, 191), and this practice may well have
continued after the statute of William III.
[
Footnote 6]
In
United States v. M'Gill, 4 Dall. 426 [omitted], Mr.
Justice Washington, sitting in the Circuit Court in a case where
the offense charged was murder committed on a vessel lying in the
haven of Cape Francois, held that the statute did not apply where
the mortal stroke was given on the vessel but the death occurred on
shore, since the murder was not committed on the high seas or any
river, basin, or bay. He doubted whether the offense thus committed
was cognizable in admiralty in the absence of statute, but stated
he had no doubt of the power of Congress to provide for it.
[
Footnote 7]
By § 5, the provisions of the Act of 1825 were specifically made
applicable to any offense
"committed on board of any ship or vessel, belonging to any
citizen or citizens of the United States, while lying in a port or
place within the jurisdiction of any foreign state or sovereign, by
any person belonging to the company of said ship, or any passenger,
or any other person belonging to the company of said ship, or any
other passenger. . . ."
This language was not, in terms, incorporated in the Revised
Statutes.
Daniel Webster, Chairman of the House Committee having in charge
the bill which became the Act of 1825, pointed out in introducing
it that the offenses for which it provided punishment had actually
occurred upon our ships while lying in the harbors of foreign
nations, and had gone unpunished for want of such legislation. Gall
& Seaton's Register of Debates in Congress, Vol. 1, cols, 154,
158.
[
Footnote 8]
That the jurisdiction in admiralty "extends as far as the tide
ebbs and flows" was a convenient definition of its limits in the
historic controversy over the conflicting claims of jurisdiction of
the English courts of common law and admiralty over waters within
the realm (
see De Lovio v. Boit, 7 Fed.Cas. 418, 428;
compare 46 U. S.
Clarke, 5 How. 441,
46 U. S. 453;
United States v.
Commbs, 12 Pet. 72;
Manchester v.
Massachusetts, 139 U. S. 240), a
conflict which was but an aspect of the struggle for supremacy of
the common law and the prerogative courts.
Cf. Julius
Goebel, Cases and Materials on the Development of Legal
Institutions (1931) 225. But it is a very different question
whether the traditional jurisdiction of admiralty conferred upon
the United States by the Constitution extends to nontidal waters.
In England, public navigable waters are tidal, and with respect to
them the terms have been used interchangeably. But there is nothing
in the nature of maritime transactions or the maritime law, which
is concerned with the affairs of vessels and those who sail, own,
use, or injure them, which need limit its application to tidal
waters.
See Benedict on Admiralty (5th Ed.) §§ 39, 43.
This was recognized and acted upon by the Vice-Admiralty Courts in
the Colonies.
See Waring v. Clarke, supra, 46 U. S.
454-456. In
Queen v. Anderson, L.R. 1 Crown
cases Reserved 161, Mr. Justice Blackburn, in upholding the
admiralty jurisdiction over manslaughter committed on a British
ship forty-five miles up the River Garronne, said, p. 169, that
"the jurisdiction of the Admiralty extends over vessels not only
when they are on the open sea, but also when in places where great
ships do generally go."
And in
Rex v. Allen, 1 Moody C.C. 494, the judges of
England upheld the admiralty jurisdiction of the crime of larceny
committed on a British vessel on a Chinese river, twenty or thirty
miles from the sea, although it did not appear that the water was
tidal. Following the decision in
The
Genesee Chief v. Fitzhugh, 12 How. 443, that there
was constitutional power in Congress to extend the admiralty
jurisdiction to nontidal waters of the United States navigable in
fact, civil jurisdiction of admiralty over a collision occurring in
the nontidal waters of the Detroit River within the territorial
jurisdiction of Canada was sustained in
The
Eagle, 8 Wall. 15, and a like jurisdiction over a
crime defined and punished by Act of Congress was sustained in
United States v. Rodgers, 150 U.
S. 249.
See also Jackson v. The
Magnolia, 20 How. 296;
The Hine
v. Trevor, 4 Wall. 555, and
In re Garnett,
141 U. S. 1,
141 U. S. 17-18,
where Mr. Justice Bradley said that
"we have no hesitation in saying that the Savannah River, from
its mouth to the highest point to which it is navigable, is subject
to the maritime law and the admiralty jurisdiction of the United
States."
[
Footnote 9]
"It is natural to consider the vessels of a nation as parts of
its territory, though at sea, as the state retains its jurisdiction
over them, and, according to the commonly received custom, this
jurisdiction is preserved over the vessels even in parts of the sea
subject to a foreign dominion. This is the doctrine of the law of
nations, clearly laid down by writers of received authority, and
entirely conformable, as it is supported, with the practice of
modern nations. If a murder be committed on board of an American
vessel by one of the crew upon another or upon a passenger, or by a
passenger on one of the crew or another passenger, while such
vessel is lying in a port within the jurisdiction of a foreign
sovereignty, the offense is cognizable and punishable by the proper
court of the United States in the same manner as if such offense
had been committed on board the vessel on the high seas. The law of
England is supposed to be the same. It is true that the
jurisdiction of a nation over a vessel belonging to it, while lying
in the port of another, is not necessarily wholly exclusive. We do
not so consider or so assert it. For any unlawful acts done by her
while thus lying in port, and for all contracts entered into while
there, by her master or owners, she and they must, doubtless, be
answerable to the laws of the place. Nor, if her master or crew,
while on board in such port, break the peace of the community by
the commission of crimes, can exemption be claimed for them. But,
nevertheless, the law of nations, as I have stated it, and the
statutes of governments founded on that law, as I have referred to
them, show that enlightened nations, in modern times, do clearly
hold that the jurisdiction and laws of a nation accompany her ships
not only over the high seas, but into ports and harbors, or
wheresoever else they may be water-borne, for the general purpose
of governing and regulating the rights, duties, and obligations of
those on board thereof, and that, to the extent of the exercise of
this jurisdiction, they are considered as parts of the territory of
the nation herself."
6 Webster's Works, 306, 307.
[
Footnote 10]
That the doctrines are not in conflict was pointed out by
Webster in his letter to Lord Ashburton, quoted
supra,
note 9 See also Hall,
International Law, 8th ed., 255, 256.