The term "high seas," as used in the provision in Rev.Stat., §
5346, that
"every person who, upon the high seas, or in any arm of the sea,
or in any river, haven, creek, basin, or bay, within the admiralty
jurisdiction of the United States, and out of the jurisdiction of
any particular state, on board any vessel belonging in whole or
part to the United States, or any citizen thereof, with a dangerous
weapon, or with intent to perpetrate any felony, commits an assault
upon another shall be punished,"
etc., is applicable to the open, unenclosed waters of the Great
Lakes, between which the Detroit River is a connecting stream.
The courts of the United States have jurisdiction, under that
section of the Revised Statutes, to try a person for an assault
with a dangerous weapon, committed in a vessel belonging to a
citizen of the United States, when such vessel is in the Detroit
River, out of the jurisdiction of any particular state, and within
the territorial limits of the Dominion of Canada.
The limitation of jurisdiction by the qualification that the
offenses punishable are committed on vessels in any arm of the sea,
or in any river, haven, creek, basin, or bay "without the
jurisdiction of any particular state," which means without the
jurisdiction of any states of the union, does not apply to vessels
on the "high seas" of the lakes, but only to vessels on the waters
designated as connecting with them, and so far as vessels on those
seas are concerned, there is no limitation named to the authority
of the United States.
In February, 1888, the defendant, Robert S. Rodgers, and others,
were indicted in the district court of the United States
Page 150 U. S. 250
for the Eastern District of Michigan for assaulting, in August,
1887, with a dangerous weapon, one James Downs, on board of the
steamer
Alaska, a vessel belonging to citizens of the
United States, and then being within the admiralty jurisdiction of
the United States, and not within the jurisdiction of any
particular state of the United States,
viz., within the
territorial limits of the Dominion of Canada.
The indictment contained six counts, charging the offense to
have been committed in different ways, or with different intent,
and was remitted to the Circuit Court for the Sixth Circuit of the
Eastern District of Michigan. There, the defendant, Rodgers, filed
a plea to the jurisdiction of the court, alleging that it had no
jurisdiction of the matters charged, as appeared on the face of the
indictment, and to the plea a demurrer was filed. Upon this
demurrer, the judges of the circuit court were divided in opinion,
and they have transmitted to this Court the following certificate
of division:
"
Certificate of Division of Opinion"
"United States of America. The Circuit Court of the United
States for the Sixth Circuit and Eastern District of Michigan."
"The United States"
"vs."
"Robert S. Rodgers"
"The defendant in this cause was indicted on the twenty-fourth
day of February, in the year of our Lord one thousand eight hundred
and eighty-eight, in the District Court of the United States for
the Eastern District of Michigan, together with John Gustave Beyers
and others, charged, under section 5346 of the Revised Statutes of
the United States, with having made an assault with dangerous
weapons upon one James Downs, the assault having taken place on the
steamer
Alaska, a vessel owned by citizens of the United
States, while such vessel was in the Detroit River, out of the
jurisdiction of any particular state of the United States and
within the territorial limits of the Dominion of Canada, and the
said Robert S. Rodgers, and the others indicted with him, having
first, after
Page 150 U. S. 251
the assault, come into the United States in the Eastern District
of Michigan."
"On the 20th day of September, in the year of our Lord one
thousand eight hundred and eighty-nine, the defendant, Rodgers, was
arrested, and on the same day the indictment was on motion of the
United States attorney for the Eastern District of Michigan, and by
order of the district court for such district, remitted to the
circuit court for such district and, with all proceedings
theretofore taken, certified to such circuit court."
"On the twenty-third day of September, in the year of our Lord
one thousand eight hundred and eighty-nine, the defendant, on being
called upon to plead in the Circuit Court of the United States for
the Eastern District of Michigan, by permission of the court,
pleaded in abatement to the jurisdiction of the court, claiming
that, under section 5346 of the Revised Statutes of the United
States, the courts of the United States have no jurisdiction of
offenses committed in the Detroit river on a vessel of the United
States within the territorial limits of the Dominion of
Canada."
"The United States, by C.P. Black, United States attorney, and
Charles T. Wilkins, Assistant United States Attorney for the
Eastern District of Michigan, demurred to such plea, and the
defendant joined on demurrer."
"The matter of the plea of the jurisdiction coming on to be
heard in the Circuit Court of the United States for the Eastern
District of Michigan on the 3d day of October, in the year of our
Lord one thousand eight hundred and eighty-nine, before the circuit
and district judges, and the defendant being present in court, the
said circuit and district judges were divided in opinion on the
question:"
" Whether the courts of the United States have jurisdiction,
under section 5346 of the Revised Statutes of the United States, to
try a person for an assault with a dangerous weapon committed on a
vessel belonging to a citizen of the United States, when such
vessel is in the Detroit River, out of the jurisdiction of any
particular state and within the territorial limits of the Dominion
of Canada."
"And so, at the request of the defendant and of the United
Page 150 U. S. 252
states attorney for this district, the circuit and district
judges do hereby at the same term, state this point upon which they
disagree, and hereby direct the same to be certified, under the
seal of the Circuit Court of the United States for the Eastern
District of Michigan, to the Supreme Court of the United States at
its next session, for its opinion thereon."
"Howell E. Jackson,
Circuit Judge"
"Henry B. Brown,
District judge"
Section 5346 of the Revised Statutes, upon which the indictment
was found, is as follows:
"SEC. 5346. Every person who, upon the high seas, or in any arm
of the sea, or in any river, haven, creek, basin, or bay, within
the admiralty 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,
with a dangerous weapon, or with intent to perpetrate any felony,
commits an assault on another shall be punished by a fine of not
more than three thousand dollars and by imprisonment at hard labor
not more than three years."
The statute relating to the place of trial in this case is
contained in section 730 of the Revised Statutes, which is as
follows:
"SEC. 730. The trial of all offenses committed upon the high
seas or elsewhere, out of the jurisdiction of any particular state
or district, shall be in the district where the offender is found
or into which he is first brought."
MR. JUSTICE FIELD, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Several questions of interest arise upon the construction of
section 5346 of the Revised Statutes, upon which the indictment
Page 150 U. S. 253
in this case was found. The principal one is whether the term
"high seas," as there used, is applicable to the open, unenclosed
waters of the Great Lakes, between which the Detroit River is a
connecting stream. The term was formerly used -- particularly by
writers on public law and generally in official communications
between different governments -- to designate the open, unenclosed
waters of the ocean, or of the British seas, outside of their ports
and havens. At one time it was claimed that the ocean, or portions
of it, were subject to the exclusive use of particular nations. The
Spaniards, in the sixteenth century, asserted the right to exclude
all others from the Pacific Ocean. The Portuguese claimed, with the
Spaniards, under the grant of Pope Alexander VI, the exclusive use
of the Atlantic Ocean west and south of a designated line. And the
English, in the seventeenth century, claimed the exclusive right to
navigate the seas surrounding Great Britain. Woolsey on
International Law § 55.
In the discussions which took place in support of and against
these extravagant pretensions, the term "high seas" was applied in
the sense stated. It was also used in that sense by English courts
and law writers. There was no discussion with them as to the waters
of other seas. The public discussions were generally limited to the
consideration of the question whether the high seas -- that is, the
open, unenclosed seas, as above defined -- or any portion thereof,
could be the property or under the exclusive jurisdiction of any
nation, or whether they were open and free to the navigation of all
nations. The inquiry in the English courts was generally limited to
the question whether the jurisdiction of the admiralty extended to
the waters of bays and harbors, such extension depending upon the
fact whether they constituted a part of the high seas.
In his treatise on the Rights of the Sea, Sir Matthew Hale
says:
"The sea is either that which lies within the body of a county
or without. That arm or branch of the sea which lies within the
fauces terrae, where a man may reasonably discern between
shore and shore, is, or at least may be, within the body of a
county, and therefore within the jurisdiction of the
Page 150 U. S. 254
sheriff or coroner. That part of the sea which lies not within
the body of a county is called the 'main sea' or 'ocean.' De Jure
Maris c. iv. By the 'main sea,' Hale here means the same thing
expressed by the term 'high sea,' -- '
mare altum,' or
'
le haut meer.'"
In
Waring v.
Clarke, 5 How. 440,
46 U. S. 452,
this Court said that it had been frequently adjudicated in the
English common law courts, since the restraining statutes of
Richard II. and Henry IV., "that "high seas" mean the portion of
the sea which washes the open coast." In
United States v.
Grush, 5 Mason 290, it was held by Mr. Justice Story in the
United States circuit court that the term "high seas," in its usual
sense, expresses the unenclosed ocean, or that portion of the sea
which is without the
fauces terrae on the seacoast, in
contradistinction to that which is surrounded or enclosed between
narrow headlands or promontories. It was the open, unenclosed
waters of the ocean, or the open, unenclosed waters of the sea,
which constituted the "high seas" in his judgment. There was no
distinction made by him between the ocean and the sea, and there
was no occasion for any such distinction. The question in issue was
whether the alleged offenses were committed within a County of
Massachusetts on the seacoast, or without it, for in the latter
case they were committed upon the high seas, and within the
statute. It was held that they were committed in the County of
Suffolk, and thus were not covered by the statute.
If there were no seas other than the ocean, the term "high seas"
would be limited to the open, unenclosed waters of the ocean. But
as there are other seas besides the ocean, there must be high seas
other than those of the ocean. A large commerce is conducted on
seas other than the ocean and the English seas, and it is equally
necessary to distinguish between their open waters and their ports
and havens, and to provide for offenses on vessels navigating those
waters, and for collisions between them. The term "high seas" does
not in either case indicate any separate and distinct body of
water, but only the open waters of the sea or ocean, as
distinguished from ports and havens and waters within narrow
headlands
Page 150 U. S. 255
on the coast. This distinction was observed by Latin writers
between the ports and havens of the Mediterranean and its open
waters, the latter being termed the "high seas." [
Footnote 1] In that sense, the term may also
be properly used in reference to the open waters of the Baltic and
the Black Sea, both of which are inland seas, finding their way to
the ocean by a narrow and distant channel. Indeed, wherever there
are seas in fact free to the navigation of all nations and people
on their borders, their open waters outside of the portion
"surrounded or enclosed between narrow headlands or promontories"
on the coast, as stated by Mr. Justice Story, or "without the body
of a county," as declared by Sir Matthew Hale, are properly
characterized as "high seas," by whatever name the bodies of water
of which they are a part may be designated. Their names do not
determine their character. There are, as said above, high seas on
the Mediterranean (meaning outside of the enclosed waters along its
coast) upon which the principal commerce of the ancient world was
conducted, and its great naval battles fought. To hold that on such
seas there are no high seas within the true meaning of that term --
that is, no open, unenclosed waters, free to the navigation of all
nations and people on their borders -- would be to place upon that
term a narrow and contracted meaning. We prefer to use it in its
true sense, as applicable to the open unenclosed waters of all
seas, than to adhere to the common meaning of the term two
centuries ago, when it was generally limited to the open waters of
the ocean, and of seas surrounding Great Britain, the freedom of
which was then the principal subject of discussion. If it be
conceded, as we think it must be, that the open unenclosed waters
of the Mediterranean are high seas, that concession is a sufficient
answer to the claim that the "high seas" always denote the open
waters of the ocean.
Whether the term is applied to the open waters of the
Page 150 U. S. 256
ocean, or of a particular sea, in any case will depend upon the
context, or circumstances attending its use, which in all cases
affect, more or less, the meaning of language. It may be conceded
that if a statement is made that a vessel is on the high seas,
without any qualification by language or circumstance, it will be
generally understood as meaning that the vessel is upon the open
waters of one of the oceans of the world. It is true also that the
ocean is often spoken of by writers on public law as "the sea," and
characteristics are then ascribed to the sea generally which are
properly applicable to the ocean alone, as, for instance, that its
open waters are the highway of all nations. Still the fact remains
that there are other seas than the ocean, whose open waters
constitute a free highway for navigation to the nations and people
residing on their borders, and are not a free highway to other
nations and people except there be free access to those seas by
open waters or by conventional arrangements.
As thus defined, the term would seem to be as applicable to the
open waters of the Great Northern Lakes as it is to the open waters
of those bodies usually designated as seas. The Great Lakes possess
every essential characteristic of seas. They are of large extent in
length and breadth; they are navigable the whole distance, in
either direction, by the largest vessels known to commerce; objects
are not distinguishable from the opposite shores; they separate, in
many instances, states, and in some instances constitute the
boundary between independent nations, and their waters, after
passing long distances, debouch into the ocean. The fact that their
waters are fresh and not subject to the tides does not affect their
essential character as seas. Many seas are tideless, and the waters
of some are saline only in a very slight degree.
The waters of Lake Superior, the most northern of these lakes,
after traversing nearly 400 miles, with an average breadth of over
100 miles and those of Lake Michigan, which extend over 350 miles,
with an average breadth of 65 miles, join Lake Huron, and, after
flowing about 250 miles, with an average breadth of 70 miles, pass
into the River St. Clair; thence, through the small Lake of St.
Clair, into the Detroit
Page 150 U. S. 257
River; thence, into Lake Erie, and, by the Niagara River, into
Lake Ontario, whence they pass, by the River St.Lawrence, to the
ocean, making a total distance of over 2,000 miles.
Ency.Britannica, vol. 21, p. 178. The area of the Great Lakes, in
round numbers, is 100,000 square miles. Ency.Britannica, vol. 14,
p. 217. They are of larger dimensions than many inland seas which
are at an equal or greater distance from the ocean. The waters of
the Black Sea travel a like distance before they come into contact
with the ocean. Their first outlet is through the Bosphorus, which
is about 20 miles long, and for the greater part of its way less
than a mile in width, into the sea of Marmora, and through that to
the Dardanelles, which is about 40 miles in length, and less than
four miles in width, and then they find their way through the
islands of the Greek archipelago up the Mediterranean Sea, past the
Straits of Gibraltar to the ocean -- a distance also of over 2,000
miles.
In
The Genesee Chief
Case, 12 How. 443, this Court, in considering
whether the admiralty jurisdiction of the United States extended to
the Great Lakes, and speaking through Chief Justice Taney of the
general character of those lakes, said:
"These lakes are, in truth, inland seas. Different states border
on them on one side, and a foreign nation on the other. A great and
growing commerce is carried on upon them between different states
and a foreign nation, which is subject to all the incidents and
hazards that attend commerce on the ocean. Hostile fleets have
encountered on them, and prizes been made, and every reason which
existed for the grant of admiralty jurisdiction to the general
government on the Atlantic seas applies with equal force to the
lakes. There is an equal necessity for the instance and for the
prize power of the admiralty court to administer international law,
and if the one cannot be established, neither can the other."
P.
53 U. S.
453.
After using this language, the Chief Justice commented upon the
inequality which would exist, in the administration of justice
between the citizens of the states on the lakes if, on account of
the absence of tidewater in those lakes, they were not entitled to
the remedies afforded by the grant of
Page 150 U. S. 258
admiralty jurisdiction of the Constitution, and the citizens of
the states bordering on the ocean, or upon navigable waters
affected by the tides. The Court, perceiving that the reason for
the exercise of the jurisdiction did not in fact depend upon the
tidal character of the waters, but upon their practicable
navigability for the purposes of commerce, disregarded the test of
tidewater prevailing in England as inapplicable to our country,
with its vast extent of inland waters. Acting upon like
considerations in the application of the term "high seas" to the
waters of the Great Lakes, which are equally navigable, for the
purposes of commerce, in all respects with the bodies of water
usually designated as seas, and are in no respect affected by the
tidal or saline character of their waters, we disregard the
distinctions made between salt and fresh water seas, which are not
essential, and hold that the reason of the statute, in providing
for protection against violent assaults on vessels in tidal waters
is no greater, but identical with the reason for providing against
similar assaults on vessels in navigable waters that are neither
tidal nor saline. The statute was intended to extend protection to
persons on vessels belonging to citizens of the United States not
only upon the high seas, but in all navigable waters of every kind
out of the jurisdiction of any particular state, whether moved by
the tides or free from their influence.
The character of these lakes as seas was recognized by this
Court in the recent
Chicago Lake Front Case, where we
said:
"These lakes possess all the general characteristics of open
seas except in the freshness of their waters and in the absence of
the ebb and flow of the tide. . . . In other respects,"
we added,
"they are inland seas, and there is no reason or principle for
the assertion of dominion and sovereignty over and ownership by the
state of lands covered by tidewaters that is not equally applicable
to its ownership of, and dominion and sovereignty over, lands
covered by the fresh waters of these lakes."
Illinois Central Railroad v. Illinois, 146 U.
S. 387,
146 U. S.
435.
It is to be observed also that the term "high," in one of its
significations, is used to denote that which is common, open,
Page 150 U. S. 259
and public. Thus, every road or way or navigable river which is
used freely by the public is a "high" way. So a large body of
navigable water other than a river, which is of an extent beyond
the measurement of one's unaided vision, and is open and
unconfined, and not under the exclusive control of any one nation
or people, but is the free highway of adjoining nations or people,
must fall under the definition of "high seas" within the meaning of
the statute. We may as appropriately designate the open, unenclosed
waters of the lakes as the high seas of the lakes, as to designate
similar waters of the ocean as the high seas of the ocean, or
similar waters of the Mediterranean as the high seas of the
Mediterranean.
The language of section 5346, immediately following the term
"high seas," declaring the penalty for violent assaults when
committed on board of a vessel in any arm of the sea, or in any
river, haven, creek, basin, or bay, within the admiralty
jurisdiction of the United States, and out of the jurisdiction of
any particular state, equally as when committed on board of a
vessel on the high seas, lends force to the construction given to
that term. The language used must be read in conjunction with that
term, and as referring to navigable waters out of the jurisdiction
of any particular state, but connecting with the high seas
mentioned. The Detroit River, upon which was the steamer
Alaska at the time the assault was committed, connects the
waters of Lake Huron (with which, as stated above, the waters of
Lake Superior and Lake Michigan join) with the waters of Lake Erie,
and separates the Dominion of Canada from the United States,
constituting the boundary between them; the dividing line running
nearly midway between its banks, as established by commissioners
pursuant to the treaty between the two countries. 8 Stat. 276. The
river is about 22 miles in length, and from one to three miles in
width, and is navigable at all seasons of the year by vessels of
the largest size. The number of vessels passing through it each
year is immense. Between the years 1880 and 1892, inclusive, they
averaged from thirty-one to forty thousand a year, having a tonnage
varying from sixteen to twenty-four
Page 150 U. S. 260
millions. [
Footnote 2] In
traversing the river, they are constantly passing from the
territorial jurisdiction of the one nation to that of the other.
All of them, however, so far as transactions had on board are
concerned, are deemed to be within the country of their owners.
Constructively they constitute a part of the territory of the
nation to which the owners belong. While they are on the navigable
waters of the river, they are within the admiralty jurisdiction of
that country. This jurisdiction is not changed by the fact that
each of the neighboring nations may in some cases assert its own
authority over persons on such vessels, in relation to acts
committed by them within its territorial limits. In what cases
jurisdiction by each country will be thus asserted, and to what
extent, it is not necessary to inquire, for no question on that
point is presented for our consideration. The general rule is that
the country to which the vessel belongs will exercise jurisdiction
over all matters affecting the vessel, or those belonging to her,
without interference of the local government unless they involve
its peace, dignity, or tranquility, in which case it may assert its
authority.
Wildenhus' Case, 120 U.
S. 12; Halleck on International Law, c. vii, § 26, p.
172. The admiralty jurisdiction of the country of the owners of the
steamer upon which the offense charged was committed is not denied.
They being citizens of
Page 150 U. S. 261
the United States, and the steamer being upon navigable waters,
it is deemed to be within the admiralty jurisdiction of the United
States. It was therefore perfectly competent for Congress to enact
that parties on board, committing an assault with a dangerous
weapon, should be punished when brought within the jurisdiction of
the district court of the United States. But it will hardly be
claimed that Congress, by the legislation in question, intended
that violent assaults committed upon persons on vessels owned by
citizens of the United States in the Detroit River, without the
jurisdiction of any particular state, should be punished, and that
similar offenses upon persons on vessels of like owners upon the
adjoining lakes should be unprovided for. If the law can be deemed
applicable to offenses committed on vessels in any navigable river,
haven, creek, basin, or bay, connecting with the lakes, out of the
jurisdiction of any particular state, it would not be reasonable to
suppose that Congress intended that no remedy should be afforded
for similar offenses committed on vessels upon the lakes, to which
the vessels on the river, in almost all instances, are directed,
and upon whose waters they are to be chiefly engaged. The more
reasonable inference is that Congress intended to include the open,
unenclosed waters of the lakes under the designation of "high
seas." The term, in the eye of reason, is applicable to the open,
unenclosed portion of all large bodies of navigable waters, whose
extent cannot be measured by one's vision and the navigation of
which is free to all nations and people on their borders, by
whatever names those bodies may be locally designated. In some
countries, small lakes are called "seas," as in the case of the sea
of Galilee in Palestine. In other countries, large bodies of water,
greater than many bodies denominated "seas," are called "lakes,"
"gulfs," or "basins." The nomenclature, however, does not change
the real character of either, nor should it affect our construction
of terms properly applicable to the waters of either. By giving to
the term "high seas" the construction indicated, there is
consistency and sense in the whole statute, but there is neither if
it be disregarded. If the term applies to the open unenclosed
waters of the lakes, the application
Page 150 U. S. 262
of the legislation to the case under indictment cannot be
questioned, for the Detroit River is a water connecting such high
seas, and all that portion which is north of the boundary line
between the United States and Canada is without the jurisdiction of
any State of the union. But if they be considered as not thus
applying, it is difficult to give any force to the rest of the
statute without supposing that Congress intended to provide against
violence on board of vessels in navigable rivers, havens, creeks,
basins, and bays without the jurisdiction of any particular state
and intentionally omitted the much more important provision for
like violence and disturbances on vessels upon the Great Lakes. All
vessels in any navigable river, haven, creek, basin, or bay of the
lakes, whether within or without the jurisdiction of any particular
state, would sometime find their way upon the waters of the lakes,
and it is not a reasonable inference that Congress intended that
the law should apply to offenses only on a limited portion of the
route over which the vessels were expected to pass, and that no
provision should be made for such offenses over a much greater
distance on the lakes.
Congress, in thus designating the open unenclosed portion of
large bodies of water extending beyond one's vision, naturally used
the same term to indicate it as was used with reference to similar
portions of the ocean, or of bodies which had been designated as
seas. When Congress, in 1790, first used that term, the existence
of the Great Lakes was known. They had been visited by great
numbers of persons in trading with the neighboring Indians, and
their immense extent and character were generally understood. Much
more accurate was this knowledge when the act of 1825 was passed, 4
Stat. 115, c. 65, and when the provisions of section 5346 were
reenacted in the Revised Statutes in 1874. In all these cases, when
Congress provided for the punishment of violence on board of
vessels, it must have intended that the provision should extend to
vessels on those waters, the same as to vessels on seas,
technically so called. There were no bodies of water in the United
States to any portion of which the term "high seas" was applicable
if not to the open
Page 150 U. S. 263
unenclosed waters of the Great Lakes. It does not seem
reasonable to suppose that Congress intended to confine its
legislation to the high seas of the ocean, and to its navigable
rivers, havens, creeks, basins, and bays without the jurisdiction
of any state and to make no provision for offenses on those vast
bodies of inland waters of the United States. There are vessels of
every description on those inland seas now, carrying on a commerce
greater than the commerce on any other inland seas of the world.
And we cannot believe that the Congress of the United States
purposely left, for a century, those who navigated and those who
were conveyed in vessels upon those seas without any
protection.
The statute under consideration provides that every person who,
upon the high seas or in any river connecting with them, as we
construe its language, within the admiralty jurisdiction of the
United States, and out of the jurisdiction of any particular state,
commits, on board of any vessel belonging in whole or in part to
the United States, or any citizen thereof, an assault on another
with a dangerous weapon, or with intent to perpetrate a felony,
shall be punished, etc. The Detroit River, from shore to shore, is
within the admiralty jurisdiction of the United States, and
connects with the open waters of the lakes, high seas, as we hold
them to be, within the meaning of the statute. From the boundary
line near its center to the Canadian shore, it is out of the
jurisdiction of the State of Michigan. The case presented is
therefore directly within its provisions. The Act of Congress of
September 4, 1890, 1 Supp.Rev.Stat. c. 874, p. 799, providing for
the punishment of crimes subsequently committed on the Great Lakes,
does not, of course, affect the construction of the law previously
existing.
We are not unmindful of the fact that it was held by the Supreme
Court of Michigan in
People v. Tyler, 7 Mich. 161, that
the criminal jurisdiction of the federal courts did not extend to
offenses committed upon vessels on the lakes. The judges who
rendered that decision were able and distinguished, but that fact,
while it justly calls for a careful consideration of their
reasoning, does not render their conclusion
Page 150 U. S. 264
binding or authoritative upon this Court. Their opinions show
that they did not accept the doctrine extending the admiralty
jurisdiction to cases on the lakes and navigable rivers, which is
now generally -- we might say, almost universally -- received as
sound by the judicial tribunals of the country. It is true, as
there stated, that as a general principle the criminal laws of a
nation do not operate beyond its territorial limits, and that to
give any government, or its judicial tribunals, the right to punish
any act or transaction as a crime, it must have occurred within
those limits. We accept this doctrine as a general rule, but there
are exceptions to it as fully recognized as the doctrine itself.
One of those exceptions is that offenses committed upon vessels
belonging to citizens of the United States, within their admiralty
jurisdiction -- that is, within navigable waters -- though out of
the territorial limits of the United States, may be judicially
considered when the vessel and parties are brought within their
territorial jurisdiction. As we have before stated, a vessel is
deemed part of the territory of the country to which she belongs.
Upon that subject, we quote the language of Mr. Webster, while
Secretary of State, in his letter to Lord Ashburton of August,
1842. Speaking for the government of the United States, he stated
with great clearness and force the doctrine which is now recognized
by all countries. He said:
"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 supposed, 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
state or sovereignty, the offense is cognizable and punishable by
the proper court of the United States in the same manner as if such
offense had
Page 150 U. S. 265
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 waterborne, 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, pp. 306, 307.
We do not accept the doctrine that because, by the treaty
between the United States and Great Britain, the boundary line
between the two countries is run through the center of the lakes,
their character as seas is changed, or that the jurisdiction of the
United States to regulate vessels belonging to their citizens
navigating those waters, and to punish offenses committed upon such
vessels, is in any respect impaired. Whatever effect may be given
to the boundary line between the two countries, the jurisdiction of
the United States over the vessels of their citizens navigating
those waters and the persons on board remains unaffected. The
limitation to the jurisdiction by the qualification that the
offenses punishable are committed on vessels in any arm of the sea,
or in any river, haven, creek, basin, or bay "without the
jurisdiction of any particular state," which means without the
jurisdiction of any State of the union, does not apply to vessels
on the "high
Page 150 U. S. 266
seas" of the lakes, but only to vessels on the waters designated
as connecting with them. So far as vessels on those seas are
concerned, there is no limitation named to the authority of the
United States. It is true that lakes, properly so called -- that
is, bodies of water whose dimensions are capable of measurement by
the unaided vision -- within the limits of a state are part of its
territory, and subject to its jurisdiction; but bodies of water of
an extent which cannot be measured by the unaided vision, and which
are navigable at all times in all directions and border on
different nations or states or people, and find their outlet in the
ocean, as in the present case, are seas in fact, however they may
be designated, and seas in fact do not cease to be such and become
lakes because by local custom they may be so called.
In our judgment, the District Court of the Eastern District of
Michigan had jurisdiction to try the defendant upon the indictment
found, and, it having been transferred to the circuit court, that
court had jurisdiction to proceed with the trial, and the demurrer
to its jurisdiction should have been overruled. Our opinion, in
answer to the certificate, is that
The courts of the United States have jurisdiction, under
section 5346 of the Revised Statutes, to try a person for an
assault with a dangerous weapon, committed on a vessel belonging to
a citizen of the United States when such vessel is in the Detroit
River, out of the jurisdiction of any particular state, and within
the territorial limits of the Dominion of Canada, and it will be
returned to the Circuit Court of the United States for the Sixth
Circuit and Eastern District of Michigan, and it is so
ordered.
[
Footnote 1]
"Insula
portum"
"Efficit objectu laterum, quibus omnis ab
alto"
"Frangitur, inque sinus scindit sese unda reductos."
"
The Aeneid, Lib. 1, v. 159-161"
[
Footnote 2]
The following statement, furnished by Col. O. M. Poe, of the
Engineer Corps, shows the traffic through Detroit River for the
years indicated:
image:a
Col. Poe adds:
"This statement does not include Canadian vessels, a large
number of which use this channel, nor does it include any vessels
not clearing from the various customhouses. Were these included, a
considerably greater showing could be made. They are not included
because the statistics cannot be obtained."
MR. JUSTICE GRAY, dissenting.
The opinion of the majority of the Court is avowedly based upon
the hypothesis that the open waters of the Great Lakes are "high
seas" within the meaning of section 5346 of the Revised Statutes,
on which the indictment in this case is founded.
That hypothesis I am unable to accept. It appears to me
Page 150 U. S. 267
to be inconsistent with the settled meaning of the term "high
seas" in our law and in common speech, and especially as used in
the Crimes Act of the United States as heretofore uniformly
expounded by this Court and by the justices thereof.
According to all the authorities, without exception, "the high
seas" denote the ocean, the common highway of all nations --
sometimes as including, sometimes as excluding, bays and arms of
the sea, or waters next the coast, which are within the dominion
and jurisdiction of particular states -- but never as extending to
any waters not immediately connecting with the sea.
The first Crimes Act of the United States provided, in section
8, for the punishment of murder or other capital offense committed
"upon the high seas, or in any river, haven, basin or bay, out of
the jurisdiction of any particular state," and, in section 12, for
the punishment of any person who should "commit manslaughter upon
the high seas," but not mentioning in that section any other
waters. Act April 30, 1790, c. 9, 1 Stat. 113, 115. In
United
States v. Wiltberger, decided by this Court in 1820, it was
adjudged that manslaughter committed by the master upon one of the
seamen on board a merchant vessel of the United States,below low
water mark of a river flowing into the sea in China was not
"manslaughter upon the high seas," nor within the act of 1970, and
Chief Justice Marshall, in delivering judgment, said:
"If the words be taken according to the common understanding of
mankind, if they be taken in their popular and received sense, the
'high seas,' if not in all instances confined to the ocean which
washes a coast, can never extend to a river about half a mile wide
and in the interior of a country."
18 U. S. 5 Wheat.
76,
18 U. S. 94.
In
United States v. Brailsford, this Court held that
the words, "out of the jurisdiction of any particular state," in
section 8 of the act of 1790, meant a State of the union, and not a
foreign state, and that a ship lying at anchor in an open
roadstead, within a marine league of a foreign shore, and not in a
river, haven, basin, or bay, might be found by a jury to be on the
high seas. 5 Wheat.
18 U. S. 184,
18 U. S. 189,
18 U. S. 200. A
similar
Page 150 U. S. 268
decision had been previously made by Mr. Justice Story.
United States v. Ross, 1 Gallison 624.
In
United States v. Hamilton, Mr. Justice Story held
that larceny in an enclosed dock within the ebb and flow of the
tide in a foreign port was not larceny "upon the high seas," under
section 16 of the act of 1790. 1 Mason 152. In
United States v.
Morel, it was held by Mr. Justice Baldwin and Judge Hopkinson
that an indictment on the same section was not sustained by proof
of stealing in a landlocked harbor of one of the Bahama Islands,
the court saying:
"The open sea, the high sea, the ocean, is that which is the
common highway of nations, the common domain within the body of no
country, and under the particular right or jurisdiction of no
sovereign, but open, free, and common to all alike, as a common and
equal right."
13 American Jurist 279, 282. And in
United States v.
Jackson, a like decision was made by Mr. Justice Thompson and
Judge Betts as to larceny in the harbor of Vera Cruz, because "the
high seas were, properly speaking, within the territory of no state
or country." 2 N.Y.Leg.Obs. 3, 4.
In
United States v. Robinson, 4 Mason 307, which was an
indictment on the Act of March 26, 1804, c. 40, 2 Stat. 290, for
destroying a vessel "on the high seas" with intent to defraud the
underwriters, Mr. Justice Story held that a landlocked bay in
Bermuda could not be considered as the high seas. And, under the
same statute, Mr. Justice Nelson and Judge Betts held that a vessel
in the East River or western extremity of Long Island Sound was not
upon the high seas.
United States v. Wilson, 3 Blatchford
435.
The Crimes Act of March 3, 1825, c. 65, was drafted by Mr.
Justice Story to supply the defects of former acts. 1 Story's Life
of Story 297, 437, 439-440; 2 Story's Life of Story 402. That act,
in sections 4, 6-8, 11, and 22, provided for the punishment of
murder, of assaults with a dangerous weapon or with intent to kill,
and of various other crimes, "upon the high seas, or in any arm of
the sea, or in any river, haven, creek, basin or bay," thus
covering all tidewaters, including a dock or basin, or a landlocked
bay, in which the tide ebbs and flows from
Page 150 U. S. 269
the sea, though in a foreign state, if "within the admiralty
jurisdiction of the United States, and out of the jurisdiction of
any particular state" of the union. 4 Stat. 115-118, 122.
In
United States v. Grush, 5 Mason 290, which was an
indictment on the provision of section 22 of the act of 1825,
reenacted in the very section of the Revised Statutes now in
question, for an assault with a dangerous weapon and with intent to
kill, Mr. Justice Story, in deciding that a place in Boston harbor
within the body of a county was a bay or haven or arm of the sea,
but was not the high seas, said:
"There cannot, I think, be any doubt as to what is the true
meaning of the words 'high seas' in this statute. Mr. Justice
Blackstone, in his Commentaries, 1 Com. 110, uses the words 'high
sea' and 'main sea' (
altum mare or
le haut meer)
as synonymous, and he adds 'that the main sea begins at the low
water mark.' But though this may be one sense of the terms, to
distinguish the divided empire which the admiralty possesses
between high water and low water mark, when it is full sea, from
that which the common law possesses when it is ebb sea, yet the
more common sense is to express the open unenclosed ocean, or that
portion of the sea which is without the
fauces terrae on
the seacoast, in contradistinction to that which is surrounded or
enclosed between narrow headlands or promontories."
And, after referring to
United States v. Wiltberger,
above cited, and other authorities, he concluded:
"From this view of the subject, I am entirely satisfied, as well
upon the language of the authorities as the descriptive words in
the context, that the words 'high seas' in this statute are used in
contradistinction to arms of the sea, and bays, creeks, etc.,
within the narrow headlands of the coast, and comprehend only the
open ocean, which washes the seacoast, or is not included within
the body of any county in any particular state."
5 Mason 297-299.
Here we have the deliberate opinion of Mr. Justice Story, who
had drafted the act, who had taken part in all the previous
decisions of this Court upon the subject, and who had often
considered it at the circuit, that the words "high seas" in the
very enactment now before us, "comprehend only the
Page 150 U. S. 270
open ocean, which washes the seacoast, or is not included within
the body of any county in any particular state."
So Chancellor Kent says:
"The 'high seas' mean the waters of the ocean without the
boundary of any county, and they are within the exclusive
jurisdiction of the admiralty, up to high water mark when the tide
is full. The 'open ocean, which washes the seacoast' is used in
contradistinction to arms of the sea enclosed within the
fauces
terrae, or narrow headlands and promontories, and under this
head are included rivers, harbors, creeks, basins, bays, etc.,
where the tide ebbs and flows."
1 Kent Com. 367.
If we turn to the principal American dictionaries, we find the
following definitions of "high seas:" "In Worcester,
high
seas, the open ocean." In Webster, "
high seas (law),
the open sea; the part of the ocean not in the territorial waters
of any particular sovereignty, usually distant three miles or more
from the coast line." In the Century Dictionary,
high seas
are defined as "the open sea or ocean; the highway of waters;" and,
in law, either (1) the waters of the ocean to high water mark or
(2) those
"not within the territorial jurisdiction of any nation, but the
free highway of all nations, the waters of the ocean exterior to a
line parallel to the general direction of the shore, and distant a
marine league therefrom,"
and it is added, "the Great Lakes are not deemed high seas."
A fortnight after the passage of the act of 1825, this Court,
speaking by Mr. Justice Story, decided that the general admiralty
jurisdiction of the courts of the United States was limited to
tidewaters.
The Thomas
Jefferson, 10 Wheat. 428. That decision was
followed, in 1833, in
Peyroux v.
Howard, 7 Pet. 324; in 1827, in
The
Orleans, 11 Pet. 175, and in 1847, in
Waring v.
Clarke, 5 How. 441. For more than half a century
after the adoption of the Constitution, Congress took no step
towards extending the admiralty jurisdiction beyond such waters. In
the Act of February 26, 1845, c. 20, extending that jurisdiction,
in matters of contract and tort, "upon the lakes and the navigable
waters connecting the same," Congress clearly treated those lakes
and waters as distinct from, and not included within "the high seas
or tidewaters." 5 Stat. 726.
Page 150 U. S. 271
And Congress never indicated any intention to extend the
criminal jurisdiction of the courts of the United States "to the
Great Lakes and the connecting waters" until three years after the
assault alleged in the indictment in this case. Act of September 4,
1890, c. 874, 26 Stat. 424.
The judgment of this Court, in 1851, in
The
Genesee Chief, 12 How. 443, overruling
The
Thomas Jefferson and the cases which followed it and holding
the act of 1845 to be constitutional did not proceed upon any
assumption that the Great Lakes were high seas, but upon the broad
ground that "the lakes and the waters connecting them are
undoubtedly public waters," and therefore "within the grant of
admiralty jurisdiction in the Constitution of the United States."
12 How.
53 U. S. 457.
Chief Justice Taney, in delivering that judgment, clearly
distinguishes the Great Lakes from the high seas. This appears in
his statement of the question whether
"the admiralty jurisdiction, in matters of contract and tort,
which the courts of the United States may lawfully exercise on the
high seas can be extended to the lakes under the power to regulate
commerce,"
as well as in his pregnant observations, "these lakes are, in
truth, inland seas. Different states border on them on one side,
and a foreign nation on the other." 12 How.
53 U. S.
452-453.
So, in
The Eagle, 8
Wall. 15, in which it was decided that the admiralty jurisdiction
over all navigable waters, having been declared in
The Genesee
Chief to depend upon the Constitution, and not upon any act of
Congress, extended to the British side of the Detroit River, Mr.
Justice Nelson, speaking for this Court, observed the same
distinction, saying that the district courts could take cognizance
of
"all civil causes of admiralty jurisdiction upon the lakes and
waters connecting them, the same as upon the high seas, bays, and
rivers navigable from the sea."
8 Wall.
75 U. S. 21.
The lakes are not high seas, for the very reason that they are
inland seas, within the exclusive jurisdiction and control of those
countries within whose territories they lie, or between whose
territories they are the boundary, and therein essentially differ
from "the high seas, where the law of no particular
Page 150 U. S. 272
state has exclusive force, but all are equal." Bradley, J., in
The Scotland, 105 U. S. 24,
105 U. S.
29.
The distinction is familiar and well established in
international law.
As was said by Sir William Scott:
"In the sea, out of the reach of cannon shot, universal use is
presumed; in rivers flowing through conterminous states, a common
use to the different states is presumed."
The Twee Gebroeders, 3 C. Rob. 336, 339.
In a case in which a municipal seizure under the Customs Act of
March 2, 1799, c. 22, § 29, 1 Stat. 649, in the St. Mary's River,
then forming the boundary between the United States and the Spanish
territory, of a vessel bound up that river to the Spanish waters
and Spanish possessions, was held unlawful, Mr. Justice Story,
speaking for this Court, said that,
"upon the general principles of the law of nations, the waters
of the whole river must be considered as common to both nations,
for all purposes of navigation, as a common highway, necessary for
the advantageous use of its own territorial rights and
possessions,"
and he distinguished the waters of the river, common to the two
nations between whose dominions it flowed, from "the ocean, the
common highway of all nations."
The
Apollon, 9 Wheat. 362,
22 U. S.
369-371.
Vattel says: "The open sea is not of a nature to be possessed,
no one being able to settle there, so as to hinder others from
passing over it." Vattel, lib. 1, c. 23, § 280. "No nation
therefore has the right to take possession of the open sea, or to
claim the sole use of it, to the exclusion of other nations." §
281.
"Every lake entirely included in a country belongs to the nation
owning the country, which, in possessing itself of a territory, is
considered as having appropriated to itself everything included in
it; and, as it seldom happens that the property of a lake of
considerable size falls to individuals, it remains common to the
nation. If this lake is situated between two states, it is presumed
to be divided between them at the middle, so long as there is
neither title, nor constant and manifest custom, to determine
otherwise."
C. 22, § 274.
Wheaton says:
"The sea cannot become the exclusive property
Page 150 U. S. 273
of any nation, and consequently the use of the sea for these
purposes [navigation, commerce, and fisheries] remains open and
common to all mankind."
Wheaton's International Law (8th ed.) § 187.
"The territory of the state includes the lakes, seas, and rivers
entirely enclosed within its limits. The rivers which flow through
the territory also form a part of the domain, from their sources to
their mouths, or as far as they flow within the territory,
including the bays or estuaries formed by their junction with the
sea. Where a navigable river forms the boundary of conterminous
states, the middle of the channel is generally taken as the line of
separation between the two states, the presumption of law being
that the right of navigation is common to both; but this
presumption may be destroyed by actual proof of prior occupancy,
and long, undisturbed possession, giving to one of the riparian
proprietors the exclusive title to the entire river."
§ 192.
Phillimore, after observing that "no difficulty can arise with
respect to rivers and lakes entirely enclosed within the limits of
a state," and discussing the rights in rivers which flow through
more than one state, and the rights in the open sea, in narrow seas
or straits, and in portions of the sea next the coast or between
headlands, says:
"With respect to seas entirely enclosed by the land, so as to
constitute a salt water lake, the general presumption of law is
that they belong to the surrounding territory or territories, in as
full and complete a manner as a freshwater lake. The Caspian and
the Black Sea naturally belong to this class."
And he proceeds to show that the rights of other nations than
Turkey and Russia to navigate the Black Sea from the Mediterranean
rest upon treaties, only. 1 Phillimore's International Law (3d ed.)
c, 5, § 155; c. 8, §§ 205, 205A.
See also Wheaton § 182,
and note; Treaty of 1826 of the United States with the Ottoman
Empire, art. 11, 12 Stat. 1216.
The Mediterranean Sea, opening directly into the Atlantic Ocean
at the Straits of Gibraltar and washing the shores of many
countries of different sovereigns has, excepting such portions
thereof as the Gulf of Venice or the Straits of Messina,
Page 150 U. S. 274
been recognized and considered by all nations for centuries as
part of the high seas, free to all mankind. Martens, Precis du
Droit des Gens, § 42; Wheaton § 190. And it was the one sea
familiarly known to the ancients as "
altum mare," the deep
sea, or "high sea," or simply "
altum," the deep.
The freedom of the Baltic Sea, and of the sound connecting it
with the North Sea, long and earnestly controverted, was finally
established in 1857 by a treaty of the five powers whose
territories bordered thereon with other European nations, and by a
separate treaty between the United States and Denmark. Wheaton §§
183-185, 187, note; 1 Phillimore.c. 5, §; c. 8 § 206; 11 Stat.
719.
As to the Great Lakes of North America, there has never been any
doubt. They are in the heart of the continent, far above the flow
of the tide from the sea. Lake Michigan is wholly within the limits
and dominion of the United States and of those states of the union
which surround it.
Illinois Central Railroad v. Illinois,
146 U. S. 387; 6
Opinions of Attorneys General 172. The middle line of Lakes
Superior, Huron, Erie, and Ontario and of the waters connecting
them forms part of the boundary between the United States and the
State of Michigan and other states of the union, on the one hand,
and the British possessions in Canada, on the other. Treaties of
Paris in 1783, art. 2, and of Ghent in 1814, art. 6, and decision
of commissioners under this article, 8 Stat. 81, 221, 274; Charters
and Constitutions, 994, 1453, 2026. No other nation has the right
to navigate them except by the permission and subject to the laws,
of the United States and Great Britain, respectively. The
controversy between the United States and Great Britain as to the
right of navigating the River St.Lawrence turned upon the effect to
be given to the fact that one side of the Great Lakes, and of the
waters connecting them, belonged to each country, as against the
fact that both shores of the St.Lawrence below belonged to Great
Britain, and it was never suggested that any third nation had a
free and common right of navigation of the lakes and their
connecting waters. On the contrary, the exclusive right of the
United States and Great Britain to navigate the lakes was
Page 150 U. S. 275
made the basis of the American claim to the navigation of the
river. On June 19, 1826, Mr. Clay, Secretary of State under
President John Quincy Adams, in a letter to Mr. Gallatin, then
minister to England, said:
"The United States and Great Britain have, between them, the
exclusive right of navigation the lakes. The St.Lawrence connects
them with the ocean. The right to navigate both (the lakes and the
ocean) includes that of passing from the one to the other through
the natural link."
Congressional Documents, 1827-28, No. 43, p. 19; Wheaton § 205.
The right of citizens of the United States to navigate the
St.Lawrence, as well as a right to British subjects to navigate
Lake Michigan, was secured by treaties between the two countries in
1854 and 1871. 10 Stat. 1091; 17 Stat. 872.
See also Act
July 26, 1892, c. 248, 27 Stat. 267; 1 Wharton's International
Digest §§ 30, 31.
No instance has been produced in which the words "high seas"
have been used to designate fresh inland waters, the entire
jurisdiction and control of which belong to those nations within
whose territories they lie, or between whose territories they form
the boundary.
The conclusion seems to me inevitable that no part of the Great
Lakes can be held to be "high seas" within the meaning of section
5346 of the Revised Statutes.
The language of this section, immediately following the term
"the high seas," is, "or in any arm of the sea, or in any river,
haven, creek, basin or bay." It is quite clear that the Detroit
River is not an "arm of the sea," or a "haven, creek, basin or
bay." Is it a "river," within the meaning of this enactment?
Upon this point, I agree with the rest of the Court that the
language used must be read in conjunction with the term "the high
seas," and as referring to waters connecting with the high seas
mentioned, and that Congress cannot be supposed to have intended to
include fresh water rivers, and not to include the lakes from or
into which they flow, and which, together with them, form a
continuous passage for vessels. But if the lakes are not "high
seas," nor included in the act, the consequence would seem to be
that the word "river" cannot be held to include a river connecting
two of the lakes.
Page 150 U. S. 276
The question now before the Court is not one, arising in a civil
proceeding, of the extent of the general and comprehensive grant in
the Constitution of "admiralty and maritime jurisdiction" to the
courts of the United States. But it is a question, arising in a
criminal prosecution, of the construction of particular words in a
penal statute, which cannot be extended by the court to a similar
or analogous case not within their natural and obvious meaning.
The place in the Detroit River within the territorial limits of
the Dominion of Canada where this offense is alleged to have been
committed was doubtless "within the admiralty jurisdiction of the
United States" under the decision in
The Genesee Chief,
and was "out of the jurisdiction of any particular state" under the
decision in
United States v.
Brailsford, 5 Wheat. 184, already cited. Nor is
there any doubt of the power of Congress to punish crimes committed
on American vessels, wherever they may be afloat.
United
States v. Furlong, 5 Wheat. 184,
18 U. S. 194;
Crapo v.
Kelly, 16 Wall. 610,
83 U. S.
624-626.
But in order to come within the statute, it is not enough that
the offense was committed "within the admiralty jurisdiction of the
United States," and "out of the jurisdiction of any particular
state" of the union, and upon a vessel belonging in whole or in
part to the United States, or to a citizen thereof. It must also be
covered by the description "upon the high seas, or upon any arm of
the sea, or in any river, haven, creek, basin or bay."
The leading words of this description are applicable to nothing
but the ocean and its adjacent waters within the ebb and flow of
the tide; every word in the description aptly designates
tidewaters; all the words, taken together, point to tidewaters, and
no other waters come within their natural and obvious meaning in
the connection in which they are used. The evident intention of
Congress, to be collected from the words it employed, was to punish
offenses upon the sea, and upon any waters forming part of the sea
or immediately connecting with it as far as high water mark and not
within the jurisdiction of any state of the union, and the whole
object
Page 150 U. S. 277
and effect of adding, after "the high seas," the words, "or in
any arm of the sea, or in any river, haven, creek, basin or bay"
were to cure the defects of earlier statutes in this respect and to
include all waters within the ebb and flow of the tide, which are
estuaries or approaches of the high seas or open ocean.
Upon this part of the case, the decision of this Court in
United States v.
Bevans, 3 Wheat. 336, is much in point. That was an
indictment for a murder committed by a marine upon another enlisted
man on a ship of war of the United States lying in the harbor of
Boston, and so within the territorial jurisdiction of the State of
Massachusetts, and therefore, as the Court held, not coming within
the description in section 8 of the Act of April 30, 1790, c. 9,
"upon the high seas, or in any river, haven, basin or bay, out of
the jurisdiction of any particular state." But the jurisdiction of
the circuit court of the United States was also sought to be
maintained under the provision of section 7 of the same act, for
the punishment of murder committed "within any fort, arsenal,
dockyard, magazine, or other place or district of country under the
sole and exclusive jurisdiction of the United States." 1 Stat. 113.
It was argued that a ship of war of the United States was "a place
under the sole and exclusive jurisdiction of the United States,"
and therefore within the act. But this Court, speaking by Chief
Justice Marshall, held otherwise, and, while waiving a decision of
the question whether any court of Massachusetts would have
jurisdiction of the offense, and recognizing as unquestionable the
power of Congress to punish an offense committed by a marine on
board a ship of war, wherever she may be, nevertheless held that
Congress had not exercised that power by the provision last quoted,
because the objects with which the word "place" was associated --
"fort, arsenal, dockyard, magazine," and "district of country" --
being all fixed and territorial in their character,
"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,"
and "the context shows the mind of the legislature
Page 150 U. S. 278
to have been fixed on territorial objects of a similar
character." 3 Wheat.
16 U. S.
390-391.
Applying the same rule of construction,
noscitur a
sociis, to the enactment now before the Court, the conclusion
seems irresistible that as the preceding words, "upon the high
seas, or in any arm of the sea," as well as the succeeding words,
"haven, creek, basin or bay," designate tidewaters of or adjoining
the ocean, the words "any river" must be held to designate waters
of a similar character -- that is to say those rivers only where
the tide ebbs and flows and which are immediately connected with
the sea, or with one of the other waters enumerated, and cannot be
extended to a fresh-water river in the interior of the continent,
because the context shows the mind of the legislature to have been
fixed on tidewaters.
Should there be any doubt of the soundness of this construction,
that doubt, in interpreting a penal statute, should be solved in
favor of the defendant.
In
United States v. Wiltberger, cited at the beginning
of this opinion, in which, as in
United States v. Bevans,
just cited, and in the case at bar, the question was of the meaning
of words, not defining the elements of the crime itself, but only
describing the place of its commission, Chief Justice Marshall
expounded the rule of construction of penal statutes as
follows:
"The rule that penal laws, are to be construed strictly is
perhaps not much less old than construction itself. It is founded
on the tenderness of the law for the rights of individuals, and on
the plain principle that the power of punishment is vested in the
legislative, not in the judicial, department. It is the
legislature, not the court, which is to define a crime and ordain
its punishment. . . . Though penal laws are to be construed
strictly, they are not to be construed so strictly as to defeat the
obvious intention of the legislature. The maxim is not to be so
applied as to narrow the words of the statute to the exclusion of
cases which those words, in their ordinary acceptation, or in that
sense in which the legislature has obviously used them, would
comprehend. The intention of the legislature is to be collected
from the words they employ. . . . To determine that a case is
within the intention of a statute,
Page 150 U. S. 279
its language must authorize us to say so. It would be dangerous
indeed to carry the principle that a case which is within the
reason or mischief of a statute is within its provisions so far as
to punish a crime not enumerated in the statute because it is of
equal atrocity or of kindred character, with those which are
enumerated."
5 Wheat.
18 U. S. 95-96.
And in answer to the suggestion made in that case (which has been
repeated in this) of "the extreme improbability that Congress could
have intended to make those differences with respect to place,
which their words import," the Chief Justice said:
"We admit that it is extremely improbable. But probability is
not a guide which a court, in construing a penal statute, can
safely take. We can conceive no reason why other crimes which are
not comprehended in this act should not be punished. But Congress
has not made them punishable, and this Court cannot enlarge the
statute."
5 Wheat.
18 U. S.
105.
For these reasons, with all deference to the opinion of my
brethren, I am constrained to conclude that the question certified
should be answered in the negative.
MR. JUSTICE BROWN dissenting.
I am also constrained to dissent from the opinion of the Court
in this case, which appears to me to inaugurate a wholly new
departure in the direction of extending the jurisdiction of the
federal courts. It is a matter of regret to me that this departure
should be made in a case in which the defendant was represented
neither by brief nor oral argument, a fact which suggests at least,
an unusual decree of caution in dealing with the question
involved.
I had supposed that in criminal cases the accused was entitled
to the benefit of any reasonable doubt, not only with regard to the
evidence of guilt, but with regard to the jurisdiction of the court
-- in other words, that penal statutes should be construed strictly
-- and that the facts that the Supreme Court of Michigan, in a very
carefully considered case, some thirty years ago,
People v.
Tyler, 7 Mich. 161, had decided that the criminal jurisdiction
of the federal courts did not
Page 150 U. S. 280
extend to the lakes; that the same question had been decided the
same way by Judge Wilkins in
Miller's Case, Brown Adm.
156; that the federal courts upon the lakes had uniformly
acquiesced in these decisions, and that no case is reported to the
contrary, would, of itself, make a case of reasonable doubt, to the
benefit of which the prisoner would be entitled.
I fully concur in all that has been stated in the opinion of the
Court with regard to the magnitude of the commerce upon the lakes,
and, if that question were pertinent here, it would doubtless be
controlling. Having lived for thirty years within sight of this
commerce, it would ill become me to depreciate its importance; but
it occurs to me that if this were a consideration at all, it would
be equally applicable to our jurisdiction over the Hudson, the
Ohio, and the Mississippi, upon all of which the commerce is of
great magnitude. I had assumed that the question at issue involved
simply the construction of a statute, and not the magnitude of the
commerce upon the lakes.
My own views on this question were so fully set forth in the
case of
Byers, 32 F. 404, that I can add but little to
what was there said. Rev.Stat. § 5346, under which this indictment
was framed, limits the jurisdiction of the district court to
"cases arising upon the high seas, or in any arm of the sea, or
in any river, haven, creek, basin, or bay within the admiralty
jurisdiction of the United States,
and out of the jurisdiction
of any particular state."
The first question which arises, then, is as to whether the
lakes are "high seas," and as to that I had supposed, until reading
the opinion of the Court in this case, there could be but one
answer.
The term "high seas" has never been regarded by any public
writer, or held by any court, to be applicable to territorial
waters, and, like the word "highways," presupposes the right of the
public to make free use of them, and excludes the idea of private
ownership. Of the sea, Lord Hale says (
De Jure Maribus, c.
4):
"The sea is either that which lies within the body of the
county, or without. That arm or branch of the sea which lies within
the
fauces terrae, where
Page 150 U. S. 281
a man may reasonably discern between shore and shore, is, or at
least may be, within the body of a county, and therefore within the
jurisdiction of the sheriff or coroner. The part of the sea which
lies not within the body of a county is called the 'main sea' or
'ocean.'"
Azuni, an Italian publicist of the last century, in writing of
the maritime law of Europe, says (Part 1, c. 1, section 12):
"The sea belongs to no one. It is the property of all men. All
have the same equal right to its use, as to the air they breathe,
and to the sun that warms them. Seas are the great highways traced
by nature between the different parts of the world, to facilitate
and expedite communication between the various nations who inhabit
it. If a nation seizes on these highways, if it arrogates to itself
the exclusive privilege of traversing them without opposition and
repels, by the fear of being plundered, all those who wish to make
the same use of them, it is no better than a nation of
robbers."
Section 14:
"The liberty of navigation and of fishing is derived from
natural law and the law of nations, as well as from the civil law.
For these reasons, the high seas ought to remain as common to the
human race as air and light. The use of those elements
unquestionably can never belong to any one nation to the exclusion
of others."
Section 15:
"From these principles it follows that the right of prior
occupancy cannot give to a nation the absolute empire of the high
sea, and for the reason already mentioned, that this element is not
susceptible of individual appropriation."
Valin, in his commentary on the Marine Ordinance, observes:
"For, in short, the ocean belongs to no one, and the conclusion
undoubtedly to be drawn from this is that all nations are permitted
to navigate it."
So Vattel, in speaking of the sea, Book 1, c. 23, section 281:
"But this," speaking of private property,
"is not the case with the open sea, on which people may sail and
fish without the least prejudice to any person whatsoever, and
without putting anyone in danger. No nation, therefore, has a right
to take possession of the open sea, or claim the sole use of it, to
the exclusion of other nations. . . . Nay,
Page 150 U. S. 282
more, a nation which, without a legitimate claim, would arrogate
to itself an exclusive right to the sea, and support its
pretensions by force, does an injury to all nations; it infringes
their common right, and they are justifiable in forming a general
combination against it, in order to repress such an attempt."
So Chancellor Kent, in speaking of jurisdiction over the seas,
Part 1, Lecture 2, says:
"The open sea is not capable of being possessed as private
property. The free use of the ocean for navigation and fishing is
common to all mankind, and the public jurists generally and
explicitly deny that the main ocean can ever be appropriated. The
subjects of all nations meet there in times of peace on a footing
of entire equality and independence. No nation has any right of
jurisdiction at sea, except it be over the persons of its own
subjects, in its own public and private vessels."
From time immemorial, the term "high seas" has been used to
import the unenclosed and open ocean without the
fauces
terrae. In the
United States v.
Bevans, 3 Wheat. 336, a homicide had been committed
upon an American man-of-war lying at anchor in the main channel of
Boston harbor, to which there is at all times a free and
unobstructed passage to the open ocean. The language of the statute
was practically the same as in this case, but it was held by this
Court, speaking through Chief Justice Marshall, that to bring the
defendants within the jurisdiction of the courts of the union, the
murder must have been committed in a river, etc.,
out of the
jurisdiction of any state, and that, as the jurisdiction of a
state was coextensive with its territory and with its legislative
power, the courts of Massachusetts had exclusive jurisdiction of
the crime. It was further held that whatever might be the
constitutional power of Congress, it was clear that this power had
not been exercised so as to confer upon its courts jurisdiction
over any offenses committed within the jurisdiction of any
particular state. In
United States v.
Wiltberger, 5 Wheat. 76, it was held that the
courts of the United States had no jurisdiction of a manslaughter
committed on a merchant vessel of the United States lying in the
River Tigris, in the Empire of China. It
Page 150 U. S. 283
was held in this case that the homicide was not committed on the
"high seas."
In
United States v.
Jackalow, 1 Black 484, it was said by this Court
that to give a circuit court of the United States jurisdiction of
an offense not committed within its district, it must appear that
the offense was committed
out of the jurisdiction of any
state, and not within any other district of the United States.
This was applied to an offense committed in Long Island Sound, one
and one-half miles from the Connecticut shore at low water
mark.
So in
Miller's Case, 1 Brown's Adm. 156, it was held by
Judge Wilkins, of Michigan, that while it was within the
constitutional competency of Congress to define and punish
offenses, when committed upon other waters than the high seas, it
had not done so, and that Lake Erie was not a part of the high
seas. This was applied to a shocking case of an attempt to burn a
passenger steamer upon Lake Erie.
But it seems to me, without going further into the authorities,
that the term "high seas" is accurately defined by the statute
under which this indictment is framed as "waters within the
admiralty and maritime jurisdiction of the United States, and
out of the jurisdiction of any particular state."
The underlying error of the opinion of the Court in this case
appears to me to consist in a total ignoring of the last
qualification. That the term "high seas" extends to what are known
as the great oceans of the world there can be no doubt. I presume
it also extends to the Mediterranean Sea, for the reason that,
bordering so many nations as it does, a division of the waters
between these nations would be impracticable. Whether, as stated in
the opinion of the Court, the term also extends to the Black Sea
there seems to be grave doubt, but if it does, it is because the
waters of the Black Sea are not proprietary waters -- are not
claimed by Russia or Turkey as being a part of their territory. The
very idea of giving to the courts of all nations jurisdiction over
the high seas arises primarily from the fact that they belong to no
particular sovereignty. If it be true that the lakes are high seas,
it logically follows that any European power may punish a crime
committed
Page 150 U. S. 284
upon the lakes in their own courts, whenever it is able to lay
hands upon the offender. It would also follow that other nations
than England and America would have the right to navigate these
seas without any local restrictions, and even to send their fleets
there, and perhaps to engage in hostilities upon its waters. In the
case of
The Genesee
Chief, 12 How. 443, this Court did not hold that
the lakes were high seas, but that the limitation of the admiralty
jurisdiction in civil cases to tidewaters did not apply to this
country, or to the interior lakes -- a doctrine in which I fully
concur, and one that has met with the practically unanimous
approval of the profession.
The difficulty of applying the term "high seas" to the lakes
arises not from the fact that they are not large enough, that the
commerce which vexes their waters is not of sufficient importance,
but from the fact that they are within the local jurisdiction of
the states bordering upon them. By the treaty of peace between this
country and Great Britain of 1783, the boundary line between the
United States and Canada was fixed in the middle of Lake Ontario,
Niagara River, Lake Erie, Detroit River, Lake Huron, St. Mary's
River, and Lake Superior, and by the Treaty of 1814 this line was
recognized, and subsequently designated by commissioners appointed
for that purpose. So in the acts admitting Illinois, Wisconsin, and
Michigan into the union, the boundary lines of these states were
fixed at the middle of Lake Michigan, and as to the State of
Michigan at the boundary line between the United States and Canada.
Acting upon this theory, the State of Michigan has assumed
jurisdiction of all crimes committed upon her side of the boundary
line, and provided for their punishment in certain counties
irrespective of the question whether the crimes were committed
within the limits of a particular county.
But even if the lakes were to be considered as high seas, that
term, surely, cannot be applied to a river twenty-two miles in
length and less than a mile in width, connecting the two lakes.
The further question then arises whether the locality in
Page 150 U. S. 285
question is covered by the words
"in any arm of the sea, or in any river, haven, creek, basin, or
bay within the admiralty jurisdiction of the United States, and out
of the jurisdiction of any particular state."
As the western half of the Detroit and St. Clair Rivers is
within the territorial jurisdiction of Michigan, it only remains to
consider whether the fact that the eastern half of these rivers is
within the territorial jurisdiction of Canada meets the
requirements of the statute. I may say that this question was
elaborately considered by the Supreme Court of Michigan in the case
of
People v. Tyler, 7 Mich. 161, which was also the case
of an assault committed on the Canadian side of the boundary line,
in which the federal court, without an investigation of the
question, had convicted Tyler. The Supreme Court of Michigan were
unanimous in the opinion that the jurisdiction did not exist.
Separate opinions were delivered by three of the judges in which
every possible case bearing upon the question was cited and
criticized. I have no doubt whatever of the power of Congress to
extend its jurisdiction to crimes committed upon navigable waters.
Indeed, since the decision in
Byers' Case, and on
September 4, 1890, Congress did pass an act providing for the
punishment of crimes committed anywhere upon the lakes. 1
Supp.Rev.Stat. 799.
But, considering that at the time the act of Congress in
question was passed,
viz., in 1790, the lakes were far
beyond the bounds of civilization, and possessed no commerce except
such as was carried on in canoes, it seems impossible to say that
Congress could have intended that the words "arm of the sea, or
river, haven, creek, basin, or bay" should apply to the lakes, when
the word "lakes" might just as well have been used had the interior
waters of the country been included. It seems to me entirely clear
that the words alluded to, following immediately the words "high
seas," apply only to such waters as are connected immediately with
the high seas, and have no application to the Great Lakes. This was
evidently the view taken by Congress in the enactment of 1890.
I may add in this connection that the act of 1790, under
Page 150 U. S. 286
which this indictment was framed, was before Congress at the
time of the passage of the Crimes Act of 1825, and also at the time
of the adoption of the Revised Statutes, and no effort was made to
change the language of the act by inserting the word "lakes," and
no such change was ever made until after the offense in this case
had been committed.
The conclusion seems to me irresistible that, considering the
words high seas are followed by the words
"in any arm of the sea, or in any river, haven, creek, basin, or
bay within the admiralty jurisdiction of the United States and out
of the jurisdiction of any particular state,"
they should be limited to such waters as are directly connected
with the high seas. It is incredible that if Congress had intended
to include the lakes in either of these acts, it would have drawn a
line through the center and given to the federal courts
jurisdiction upon one side of that line and not upon the other,
when it was equally within its competency to confer full
jurisdiction over all crimes committed upon American vessels upon
the entire lakes. Especially is this true in view of the fact that
it is often impossible to locate the ship, at the time the crime is
committed, upon one side or the other of the boundary line.
It is beyond question in this case that the crime charged was
committed within the waters of the Province of Ontario; that the
courts of such province had jurisdiction of the cause, and, in my
opinion, such jurisdiction was exclusive.