United States v. Bevans

¶1(Constitutional Law.)

¶2Admitting that the 3d article of the constitution of the United States, which declares that “ the judicial power shall extend to all cases ot admiraltv and maritime jurisdiction,” vests in lh6 United Stale* exclusive jurisdiction of'.all such cases, and that a murder commit» ted in the waters of áltate where the tide ebbs and flows, is a case of admiralty and maritime jurisdiction ; Congress have not, in the 8th section of the act of 1790, ch. 9; for the punishment of certain offences againBt the United States,” so exercised this power as to confer on the courts of the United States jurisdiction over such murder.

¶3Quixre, whether courts of common law have concurrent jurisdiction with the admiralty over murder committed in bays, A®, which are enclosed parts of the sea 1

¶4■Congress having, in the 8ih section of the act of 1790, ch. 9, provided for the'punishment of murder, &c. committed ‘‘upon the high seas, .or in any river, haven, .basin, or hay, out of the jurisdiction of any particular state,”’ it is not the offence committed, but the bay, Ac, in which it is committed, that must b* oat of. the jurisdiction of the slate.

¶5*337Ti* ¿rant to the Un'ted States iil the constitution, of all cases of admiralty and maritime jurisdiction, does not extend'to a cession of the Waters in which those cases may arise, or of a general jurisdiction over the same. Congress may pass ail laws which are necesssary for giving the most complete effect to the exercise'of the admiralty and maritime jurisdiction granted-to the government of the Union. But the ¿enéral jurisdiction over the place, subject to this grant, adheres to' tito territory as a portion of territory not yetgivén away:'and the’.residua* ry powers of legislation still remain in the state.

¶6Congress have power to provYe for the punishment of Offences commit-' ted by persons serving on board a ship of war of the United States, wherever that ship may lie. But congress have not exercised that power in the case of a ship, lying in the waters of theUnited States; the words “within any fort, arsenal, dock-yard, magazine,, or in any other ' place or district of country under the sole and exclusive jurisdiction! of the United 'Slates;” in the third section of the act of 1790, ch. 9.' not' extending to a ship of war, but only tó objects in their hatur# - fixed and territorial.

¶7The defendant, William Bevans, was ihdicted foi tnurder in the circuit court for the district of Massachusetts. The indictment was founded' on the 8th Section of the act of congress of the *30th of April, 1790, ch. 9. and wás tried tipon the plea of not' guilty. At the trial, it appeared in evidence that the offence charged in the indictment, was committed by the prisoner on the sixth day of November, 1816, ón board the United States ship of war Independence, rated á ship of the line of seventy-four guns, then in commission, and in the actual service of the United States, under the command of Commodore Bainbridge. At the' same time, Wilf un Bevans was a marine, duly enlisted, and in the service Of the United. States, and was acting as sentry regularly posted on board of said ship?, and Peter Leitistrum (the deceased, named in the indictment) waá at the same time duly enlisted and in *338the service of the United Slates as cook’s mate on board sa’^ ship. The said ship was at the same time lying at anchor in the main channel of Boston harbours in waters of a sufficient depth at all times of tide for ships of the' largest class and' burden, and to which there is at all times a free and unobstructed passage to the open sea or ocean. The nearest land at low water mark to the position where the ship then lay, on various sides is as follows, viz: The end' of the long wharf so called in the town of Boston, bearing south-west by south, half south at the distance of half a mile ; the western point .of William’s Island,, bearing north by. west,, at the distance between one quarter and one third of 'a mile;-the navy yard of the United States'at Charles-town, bearing north-west half-west, at the distance of three quarters of a mile, and Dorchester point so called, bearing south southeast, at the distance of two miles and one quarter, and the nearest point of Governor’s Island so .called, (ceded to the United States,) bearing southeast half-east, at the distance of one mile and three quarters. To andbeyond the position or place thus described, the civil and criminal processes of the courts of the -state of Massachusetts, have hitherto constantly been served and obeyed. The prisoner was frst apprehended- for the offence in. the district of Massachusetts.

¶8,The jury found a verdict that the prisoner, William Bevans, was guilty of th'e offence as; charged in the indictment.

¶9Upon the foregoing statement of facts, which was *339stated and made under the direction of the court, the prisoner, by his counsel, after verdict, moved for a new trial, upon which motion two questions occurred, which als.o occurred at the trial cf the prisoner. 1. Whether, upon the foregqing statement of facts, the offence charged in the indictment, and committed on board the said ship as aforesaid, was within the jurisdiction of the state of Massaeht setts, ' or of any court thereof. 2d.- Whether the offence charged in the indictment, and committed on board the said ship, as aforesaid, was within the jurisdiction or cognizance of the circuit court of the United States, for. the district of Massachusetts. Upon which questions, the judges of the said circuit court were at the trial, and upon the motion fora new trial, opposed in. opinion; and thereupon, upon the request of the district attorney of the United States, the same questions were ordered by the said court to be certified under the seal of the court to the supreme court, to be finally decided.

¶10Mr. Webster, for the defendant.

¶11The ground of the motion for a new trial in this case is, that on the facts proved, the offence is not within the jurisdiction of the circuit court of the United Stales. The indictment is founded on the 8th section of the act of congress, for the punishment of certain crimes ; by which act, murder is made cognizable in the courts of the United States, if committed “upon the high seas, or in any river, haven, bason or bay, out of the jurisdiction of any particular state.” To sustain the jurisdiction, in this *340case, then it must appear,- either that the plac«. where the murder was committed was the “high seas,” or that it was a river, bay, or bason, .not within the jurisdiction' of any state.. 1, The murder, was not committed on the high seas, because it was commit- - ted'in a port, or harbour;-; and ports and . har bours are not parts of the high seas. To some purposes, they may be considered as parts of the sea, but not of the high sea: Lord Halo says, “the sea is either that which lies within the body of a county or without. The ' part of the sea which •lies not within the body- of a county, is called the main sea or ocean.”a By the “main sea” Lord Hale undoubtedly means ,lhe same as is expressed by “high sea,” “mare altwnor ule haut meer” There is a distinction between the mean-» ing of these last terms, and the meaning of the S.ea. And this distinction does not consist merely-in •this, that is “high sea” to low water mark on.,v and sea to high water warlc, wheii the tide is full. A more obvious ground of distinction • is, • that the high seas import the unenclosed and open ocean, Without the fauces, terra, So Lord Hale piust. be understood in the passage cited. Ports Sind harbours are, by the common law, Within the bodies of counties; and that being the high sea .which lies not within the body of any county, ports &nd harbours are, consequently, not part of the high seas. Exton, one of the distinguished advocates. of £he admiralty jurisdiction, sneers at the Common *341lawyers, for the alleged absurdity of supposing' ships to ride a$ ancher, or to sail, within the body of the emmty. The common " lawyers might retort, the greater incongruity of supposing ports and harbours to be found on the high seas.a“ Touching treason or felony,” says Lord Hale, “ committed on the high sea, as the law' now stands, it is not determinable by the common law courts,. But if a felony be commit, ted in a navigable arm of the sea, the common law' hath a concurrent jurisdiction.”b A navigable arm of the sea, therefore, is not the high sea. The common and obvious meaning of the expression, “ high seas.,” ' is also the true- legal meaning. The expression describes the open ocean, where the dominion of the winds and waves prevails without check or control.- Ports an'd harbours, on the contrary, are places' of. refugp, in which protection and shelter are sought from this turbulent dominion, within the inclosures and projections, of the ' land. The high sea, and havens, instead of being of siniilar import, are always terms -of opposition.

¶12u Insula portum

¶13.Efficit objéctu iaterum : ^uibusomnis ab alto Frangitur, inque sinus scindit sese jinda- reductos!”

¶14The distinction is not only asserted by the common, lawyers, but recognised by the most distinguished civilians,' notwithstanding what is said in the case tn Qwm,cand some other dicta. The statute 13 Rich *342ard II. ch. 5, allows the'admiral to entertain jurisdiction of things done on the sea, “ sur le mter.” The civilians contend, that by this* expression, the admiralty has jurisdiction in ports and havens, becau.se the admiral is limited to such things as are done on the sea, and ■ not to such only as are done on the high sea. In remarking upon this, and other statutes relating to the admiralty, hvbis argument for the jurisdiction of that court, delivered' in the house of lords, Sir Leoline Jenkins says : “ The admiral being a judex ordinarias, (as Bracton calls such as have their- jurisdiction . fixed, perpetual, and. natural,), for .100 years before this, statute: it shall 2©t be intended to restrain him any further thán the words do necessarily and unavoidably import. For instance, the statutes say, that the admiral shall intermeddle only with things done upon the sea ; it will be too hard a construction to remove him further, and to keep , him only super altum mare: if-he had, jurisdiction before in havens, ports, and creeks, he shall have it still ; because all derogations to an antecedent right are odious,' and ought to be strictly taken.”a This argument evidently proceeds, on the-ground of an acknowledged distinction between thesae, and the' high sea ; the former including ports and. harbour's, the latter excluding them. Exton’s comment on the same statute, 13 Richard II. ch. 5. is to the same effect. “ Heré,¡ sur lé meer,” says he, “ I hope shall not be taken for super altum mare; when a* the statute is so absolutely free from distinguish*343-ing any one part of the sea from the other, or limiting the' admiral’s jurisdiction unto one part thereof, more than to another; but leaveth all his cognizance. But this I am sure of, that-by the records throughout the reign [of Edward III.] the admirals were capitanei et admiralli omnium portuitm et locorum per co¿teram maris, (as hath been already'showed,) as- wéll as. of the main sea.”a This writer is here endeavoring to establish the jurisdiction of the admiralty over ports and harhours, not as they are parts of the high sea, -but as thejr are parts of the sea. He. contends, therefore, against that construction of the.statute by which jurisdiction on the sea would be confined to jurisdiction on-the high sea. Upon the authority therefore, of the civilian's themselves, as well as on that of the common law courts, ports and harbours must be considered as not included in the expression of the high seas. Indeed, the act of congress itself goes clearly upon the ground of this distinction. It provides for the punishment of murder and robbery committed on the high seas. It also provides for punishment of thé same offences, when committed in ports and harbours of a párticulur description. This additional provision would be absurd, but'upon the supposition that-ports and harbours were not parts of the high sea. 2 If this murder waá not committed on the high seas, was it committed in such havener harbour as is not within the jurisdiction of any state? The case states, that in point of fact, the jurisdiction. of Massachusetts has been constantly exercised *344©yétitlie place. ’Prima fade this is enough. It satis fies 'the intent of the act of Congress. It shows that . ' ,. . , , .... the crime' would not go unpunished,-, even if the authority of the United States court- should not interferé Ail actual jurisdiction in such case will be presumed .to be rightful.- Thus in the case, of Captain- Goodere,indicted for -the murder of his brother, Sir John Dinley Goodere,- in a ship, in Kihgroad, belo'vfc Bristol, the indictment being tried before the recorder of Bristol, and the murder being alleged- to have been committed within the body of the county of that city, witnesses were called to prove that the process of the' city government had frequently been served' and obeyedy where the ship- was lying when the murder was committed onboard? and this .was holden to be sufficient to show that thé offence was committed within the. jurisdiction of the city.a But the jurisdiction of Massachusetts, over the place where'this murder was-Committed can be shown to' be rightful-. It is true that-the judicial power of the United State's extends to-all cases ■ of admiralty and maritime jurisdiction;- and it--may be admitted, that this-power is exclusive, and that no state- can exercise any jurisdiction of that-sort. Still it will remain to'be shown, not only that this offence is one of which the admiralty has jurisdictioa/bufalsp, that it is one of which the admiralty-has exclusijurisdiction. For although the state' courts, and the courts of tne United States, cannot have. cDr\’u.rrent admiralty jurisdiction,, yet the-cokut. mon law and the admiralty may have concurrent ju-*345.xisdiction ; and the state court in the exercise of their common law jurisdiction, may have authority to try this offence, although it might also be subject to the concurrent jurisdiction of a court of admiral-’ ty, and might have been tried in the courts of the United States, if congress had seen fit to give .the courts jurisdiction in such cases. But the act only gives jurisdiction to the circuit court, in. cases where there, is no jurisdiction in the state courts. The state courts e'xeycise, in this respect, the entire commog law jurisdiction. If, therefore,, the common law has a jurisdiction in this case, either exclusive or concurrent, the'authority of the circuit court under the act does not extend to. it. In-order to. sustain this conviction, it must be shown, not only that it is a case of ex-:i elusive admiralty jurisdiction, but also that congress has conferred on the circuit court all ¿he admiralty jur risdiction that it could confer. But congress .has- not provided, that the admiralty jurisdiction, of the circuit court oyer offences of this nature shall he exercised, in any case’in which there is a concurrent common law jurisdiction in the, state courts. There is a jurisdiction, in this case, either exclusive or concurrent, in the common law; because the place where, the murder was committed- was a port or harbour, and áll' ports and harbours are takenj by the common law, to be within the bodies of counties. It is true, that by the statute 15 Rich* II. ch. 3. jurisdiction is given to-the admiral over murder and mayhem, committed in *346great $hips,' lying in the streams of great' rivers, be-0^ *be bridges near the sea. Lord Coke’s reading of this statute would altogether exclude the admiral’s .jurisdiction from ports and harbours'; bqt Lord Hale Holds the jurisdiction to be concurrent. “This statute first gave th.e admiral jurisdiction in any river Of creek within the body of a county. But' yet obsérve, this is not exclusive of the courts of common láW; ahd, therefore; the king’s bench, &c. have' herein á concurrent jurisdiction with the court of admiralty.”a And this doc tri ue of Lord Hale, is now sup* posed to be the settled law in England; viz. that the common law and the adniralty have ' concurrent jurisdiction over murder and 'mayhem, committed in great rivers, &e. beneath the bridges next the S£a, It i’s not doubted, certainly,'that the common law has' jurisdiction in such casé». In Goodére’s C£_sé, before mentioned, some question arose, about the' court in which the offender should be tried; The .opinion of the attorney and solicitor general, Sir Dudley Kidéf and Sir John Strange^ was that the ' trial must be in’ the county of the city of Bristol He was accordingly, tried before Sir Michael Foster, recorder óf thé -cityj and convicted. From the ierths in which the opinion of the attorney añd solicitor génerál was expressed, if might be' inferred! that the common law was thought fo have exc'usive jurisdiction of the casé, agrééably to the well-known opinion of Lord Coke. At any fate, it was admitted to have jurisdiction, either exclusive or concurrent, and it *347floes not appear that the civilians who were consul; éd «a the occasion, Dr. Paul and Sir Edmund Isham, doubted of this.a If, then, the common' law would have jurisdiction of this offence, in England, it has jurisdiction of it here; The admiralty will not . exclude the common > law in this case, unless it would exclude it in England, The extent of admiralty and maritime jurisdiction, to he exercised . under the constitution of the United Sfátes,must. be judged of by the common law. The constitution ¡musí bé construed, in this particular, by the same rule of interpretation which is applied to it in other particulars. It is impossible to understand or explain the constitution without applying to'it a common law construction. . It uses terras drawn . from that science, and in many cases would be unintelligible or insensible, bat for the aid of its interpretation.b The cases cited show, that the extent' of the equity powers .of the United States courts ought to be'measured by the extent of these powers, in the general system of the common law. The same reason applies to the admiralty jurisdiction. There may be exceptions,. founded, qn particular reasons, and extending as far as the. reaspps extend orTwhich they are founded. But as a i .general rule, the admiralty jurisdiction must be limited ns. the common law limits it; and .there is no. reason for .an exception in this case. There is no ground to believe that the framers of the constitution intended to revive the old contention between the common law and the. *348admiralty, 'Whatever. might have been the original of that question, it had become settled, and an -actual practical limit had been-fixed for a long course of year's. They cannot be supposed to Jrave intended to disturb this, from a general .impression that it might have been otherwise established- at first. • This then being, a casej'in which the common ,law has jurisdiction, according to established rules and usage, the act of congress has conferred no po wer to try the offence xm the courts pf the United. States.

¶15Mr. Wheaton, for the United- States.

¶16The •state'court had ,not jurisdiction of this • case, because .the offence was committed on board a. national ship of war,, which, together with the space of water she occupies, is extraterritorial even when in a port of a foreign country; a fortiori, when’in u pott of the Uni-, ted states. A. national ship is a part of the terri^to;ry of the sovereign or state to which she belongs. A state has nd jurisdiction In the territory of the United States. Therefore it has none in a ship of war belonging to th? "United States. The exemption of the territory of every sovereign from any foreign jurisdiction, is a fundamental principle of public law. This exemption is extended by comity, ’ by reason, and by justice, to. the eases, 1st. .Of a foreign sovereign himself1 going / into the' territory of another nation. ’ Representing the power, dignity, and all the ■sovereign attributes of his nation, and going mto th# territory of another state under the permission, which, in time of peace, is implied from the absence of any *349prohibition, he is not amenable to the civil or criminal jurisdiction of the country. 2 Of an ambassador stationed in a foreign country, as-the delegate of his sovereign, and to maintain the relations of peace and amity between .his. sovereign and the state where he resides. He is by the constant, usage of civilized nations, exempt from the local jurisdiction' of the country -where he resides. By a fiction of law., founded on this principle, he retains his national character unmixed' and his residence is considered ; as a continued residence in his own country.a 3d Of an army, or fleet, oí ship'of war marching through, sailing ever, or stationed in the territory of another sovereign. If a for* sign sovereign, or his minister, ora. foreign ship of war.,.stationed within the territorial limits of a particular state of the.union, is in contemplation of law, extraterritorial and independent of the, jurisdiction of that state, a fortiori must the' army and nsfvy ofthe United States be exempted from the same. jurisdiction. If •they were notj they would be in a worse situation than those -of a foreign power, who .are exempt both from the state and national jurisdiction, Vattel says that •the-territory af a nation comprehends every part of its just and lawful possessions.b He also considers the ships -of a nation generally portions of .Us territory, though he admits . the right of search for ga$*j$ ,in merchant vessels.cGrotius comes more directly to *350the point we have in view. He holds, that sovereign- ^ may acquired over a portion -of the sea, ,#tratime persmarum, ut si classis, qui maritimis est exercitus, aliquo in loco, m-a'ris se ha skat.”a So, also,- Casaregis, maintains the same doctrine* and fortifies his positions by multiplied citations from ancient writers of authority. He holds it as an undeniable and universally received principle of public law,- that a sovereign cannot claim the exercise • of jurisdiction in the seas/, adjacent to his territories, ilexceptis tamen J)ueihus Generalibus vel Generalise simis alicujus exercitus vpl classis maratimts vel ductoe ribus etiam alicujus navis militaris nam isti in sous milites gentem et naves libere jurisdictionem sive vor lunlariam sive contensios'am sive civilem, sive ■ criminaJem in alieno territorio quod occupant tamquam in suo proprio exercere possunt,” £fc.b The case of the Exchange, determined in this court after a.most learned, able, and eloquent investigation puts the seal to thé doctrine.c If, in that case, the exemption of foreign ships of war from the local jurisdiction, be pla_ céd. on the footing of implied or express assent; that may more naturally and directly be inferred in the case of a state of this Union, a member of the confederacy, than of a foreign power, unconnected by other ties, than those of peace and amity which prevail between distinct nations. The exclusive jurisdiction which the United States have in forts and dock-yards ceded to them, is derived from the express *351asient of the states by whom the cessions are made. It could be derived in no other mannerbecause . without it, the authority of the state would be su'preme and exclusive therein. But the exclusive ju* risdiclion of the United States on board their ships of war is not'derived ■ from the exp-ess assent of the individual states; because the United States have it in common- with oil other independent powers; they have-it by the public law of the world ; a concession of it in the constitution would have been merely de" claratofy Of that- law. The pówer granted to congress- by the constitution, “ to make rules for the government of the land- and-naval forces,” merely respects .the military police of the army arid navy,- to be maintained by articles of war which form the' military code. But this case is not within the grasp of that code, the offence being committed within thé jurisdiction of the United States. The power of a court' martial to punish murder, is confined to cases H without” the United States, by. the act of the 23d of April, 1800, for. the government of the navy, <ch_ 33. In England; murder, committed in the army. or navy, is friable, (not by court#.martial) but in.the ordinary criminal courts of the country. But in what courts? in the national courts. If committed on land, in the courts of common law: if committed within the limits of the admiralty jurisdiction, at the admiralty sessions.a In the memorable case of the frigate Chesapeake, the pretension of searching public ships for deserters was solemnly disavowed *352by the British government, and their immunity from gthe exercise of any jurisdiction but that of the sovereign power to which they belong was spontaneously recognized.a The principle that every- power has exclusive jurisdiction ovef offences committed ori board their own public ships,, wherever they may be?. is- also demonstrated in a speech of the present chief justice of the United States, delivered in the house of representatives on the celebrated case of Nash -alias Robbins; which argument though- made in another forum, and for another object, applies with irresistible force to every claim of jurisdiction over a public ship that' may be set up by any sovereign power other than that to' which such ship belongs.b*353All jurisdiction is founded on consent,; either the'consent of all the.'citizéns implied in the social compact . ,. , 1 „ , ,. r itself, or the express consent of the party or his so*354vereign. But in this case, so far- from there being any .consent, implied ór express, that the state courts should ■ take. cognizance of offences committed on board of "ships'of war belonging to the United' States, *355those ships, enter the ports of. the different stales untier the permission <jf the state governments, which is as much a waiver of jurisdiction as it would be in the case of a foreign ship entering by the same permission. A foreign ship would be exempt from the, local jurisdiction; and the sovereignty of the United States on board their own ships of war cannot . be less perfect while they remain in any of the ports of the confederacy, than if they were in a port wholly foreign. But we /have seén that when they are in a-foreign port -they are exempt from the jurisdiction of the couiitry. With still more reason must they be exempt from the jurisdiction of the local tribunals whén they are in a port of the Union, — 2. The state court had not jurisdiction, because the place in which the offence was committed, (even if it had not been committed on hoard a public ship of war.of the United States) is within the admiralty jurisdiction with which the federal courts are invested py the constitution and the laws. By the constitution, the judiciary power extends to “all cases of admiralty and maritime jurisdiction.” There can be no doubt that the technical common law terms used in the constitution are to be construed according to that law, such as “ habeas corpus,” “trial by jury,” &c. But this is a term of universal law, “ cases of admiralty and maritime jurisdiction not cases of' aémir.alty.jurisdiction only; but the amplest, broadest, and most expansive terms that could be used to grasp the largest sense relative to the subject matter. The framers of the constitution were not mere common lawyers only.. Their mind» were liberalized by a knowledge of universal *356jurisprudence and general policy. They may a# well: therefore, be supposed to have used the term admiralty and, maritime jurisdiction, as denoting the .jurisdiction of the admiralty in France, and in every country of the civilized world, as in England alone. But even supposing this not to have been the case, the statutes of Richard II-. at their enactment, could not have extended to this country, because the colonies ,aid not then exist. They could not after-wards x»n the discovery and colonization of this coun* try become applicable here, because they are geo^ graphically local Ur their nature. British statutes were not in force in the colonies, unless the colonies were expressly, or by inevitable implication, included therein.a We never admitted the right of the British parliament to bind us in any case, although they assumed the authority to bind us in all cases. ■■ It is, therefore,' highly probable that the framers ■ of the constitution had in view the jurisdiction of those1, admiralty courts with which they were familiar. The jurisdiction of the colonial admiralty courts extended, First. To all maritime contracts, wherever made and wherever to be executed. Secondly. To all revenue causes arising on navigable waters-. Thirdly. To all offences committed “on the sea shores, public streams, ports, fresh waters, rivers, ánd arms as well of the sea as of the rivers and coasts,” '&cbBut if this construction should not be tenable, it may be shown that an offence committed in the *357place where the record shows this crime was committed, is within the rightful jurisdiction of the admiralty, according to English statutes and English authorities. Before the statutes of Bichard II. the criminal jurisdiction of the admiralty extended to all offences committed on the high seas, and in the ports, havens, and rivers of the kingdom.a -Subsequently to the statutes of Richard, there has never been -any question in England, that the admiralty had jurisdiction on the sea coast within the ebb and flow of the ■ tide. The doubt has been confined to po$ts ■and ha*• vens. But “the sea,” technically so termed, includes ports and havens, rivers and creeks, as Well as the sea coasts■; and therefore the admiralty jurisdiction extends as , well to ¿Aese-(within the ebb and flow) hs to the sea coasts.bOn this- branch of'the cáse it

¶17*358•would be useless.to do more than refer to the opinion of one of the learned judges of this court,a in which all the learning on the civil and criminal jurisdiction *359of the admiralty is collected- together, and concentrated in a blaze of luminous reasoning, to prove that this tribunal, before the statutes of Richard II. *360had cognizance of all torts, and offences, on the high seas, and in ports and havens, as far as the ebb and gow tj^e. usuai common law i'n-j terpretation, abridging this jurisdiction, to transacions wholly and exclusively on the high seas, i? indefensible upon principle, and the decisions founded on it are irreconcilable with one another} whilst that of the civilians has all the consistency of truth itself; and that whether the Ehglish courts of com-. mon law be, or be not, bound by these decisions, so that they- cannot retrace their steps, yet that the courts of this country are unshackled by any such bonds, and may and ought to construe liberally the grant of admiralty and maritime jurisdiction contained in the constitution. To the authorities there cited, add those in the margin, showing that the courts. *361&f admiralty in Scotland, .. France,, and the other conntries of Europe possess the extent of jurisdiction we contend for.a The liberal construction of the constitution, for which we contend, is strongly fortified by the interpretation given to it by the .congress in an analogous case, which interpretation has- been confirmed by this court. The judiciary act declares, that -revenue suits, arising of seizures on waters *362navigable from the sea, &c. shall be causes of admirally an<^ maritime jurisdiction. And in the cáse, of the Vengeance,aand other successive, cases, the cohrt naa confirmed the constitutionality of this legislative provision. But neither the congress nor the court could make those suits cases of admiralty and maritime jurisdiction which were' not so by the constitution itself. The constitution is the supreme law, both for the legislature and for the court. The high tíourt of admiralty in England has no original jurisdiction of revenue causes whatever. But the colonial Courts of admiralty have always had, and that inherent, independent of, and pre-existent to, the statutes on this-, subject.b The inevitable conclusion thérefore is, that both the legislature and the' court Understood the term cases of admiralty and maritime jurisdiction, to refer, not to the jurisdiction of the high court of admiralty in England, as frittered down by the illiberal jealousy, and, unjust usurpations of the common law courts; but to the admiralty jurisdiction. as it had been exercised in this country from its. first colonization. Fut it has been already shown that this jurisdiction extended' to all crimes and offences committed in ports and Havens. It therefore follows that such was the- extent of the admiralty jurisdiction meant to be conferred upon the federal courts by the framers of the constitution. 3. By the judiciary act of 1789, ch 25. the circuit éourt nas jurisdiction of all crimes cognizable under, the authority of the United States. By the act of *3631790, ch. 9, it is provided that “if any person Cr persons shall commit upon the high seas, or.in any river, haven, basin or bay¿ out of the jurisdiction of any particular state, murder, &c. “he shall suffer death.” It appears by the face of the record itself, that this murder was committed, in fact, “in a river, haven, or bay,’! and it has already been shown that in law, it was committed out of the jurisdiction of .any particular .state.

¶18The Attorney-General on the same side.

¶19If the offence in question be not cognizable by the circuit court, it is entirely dispunishable. The harbour of Boston is bounded by three distinct counties, but not included in éither ; consequently the locus in quo iff not within the body of any county. These three counties are Suffolk, • Middlesex, and Norfolk; and are referred to as early as the year 1637, in the public acts of the colony of Massachusetts as then established.a It is not pretended that the place where the ship of war fey at the time this offence was committed is within the limits of the county of Middle-sex. By the act of the legislature of Massachusetts on the 26th of March, 1793, all the territory óf ¿he county of Suffolk not comprehended within the towns of Boston and Chelsea, was formed into a new county by the name of Norfolk. And by this act and.the subsequent acts of the 20th of June, 1793, and 18tlr of June, 1803, the county of Suffolk now compre, tends only the towns of Boston and Chelsea. The¿ *364locus in quo cannot be .within thé body of either of these, counties, or of the old county of Suffolk :for , ., „ there.is no positive law fixing the local, limits of the counties ■.emselv.es,' or of the towns included there-. in : and according to the facts stated on the record* it is at least doubtful whether a person on ,the land on ,one s[de of the waters of the harbour could discern wh,>" was- done on tne other side.a If the locus in quo be not within the body of any county, it Is confessedly within .the admiralty jurisdiction. That jurisdiction is exclusively vested in the United States* courtsb and therefore the' state court could' not take cognizance of this offence. To which ever forum, however, ;the cause be assigned, the accused is equally safe. In either .court the trial is by d jury¿ and there is the., same privilege -of process to .compel the ¡attendance of 'witnesses, &c. . The objection, commonly urged tp. the admiralty jurisdictionj, that' it; proceeds .according to the Course of the. civil law,-and without the intervention of a jury,, would, not apply. Resides, that objection is wholly unfounded,, even as applied to the court when. proceeding in ■ crimina] ca$es. according to.,,the ¡ancient law .of the admiralty, independent of'.statutes ; -when, thus proceeding, if never . acted without the, aid of a grand and petit' jusiy. There is no doubt the courts, of the United •States are courts óf limited jurisdiction, hut not limited as» to each general clasp of cases -of- which they take cognizance. The terms of the constitution *365embrace “ali cases of admiralty and' maritime jurisdiction 5 ” civil and criminal, and whether the same arise from the locality or from the nature of the.controversy. The meaning and extent of these ■ terms is to be sought for, not in the common lew, but in the civil law. Suppose the terms had been jus postliminii, or jactitation of marriage ; where else, but to the civil law, Gould resort be had in order to ascertain, their extent and import? It may be that the jurisdiction of the civil law courts is a subdivision of the great map of the common law ; but in order to ascertain its limits, ex • tent and boundaries, the map of this particular province must be minutely inspected. The common law had no imperial prerogative over the civil law courts by which, they could be controlled, or have been in fact controlled. The terrors of prohibition were disregarded, and the contest between these rival jurisdictions was continued with unabated hostility until the agreement signed by all the judges in 1632, and ratified by the king in council.a The war between them would never have *366been terminated, but by the overruling authórily of the *n c^an<^^ A temporary suspension of hostilities had been effected by a previous agreement of

¶20*367the judges of tíre ting’s bench and the admirpity, made in 1575;. but that agreement was soon violated, the common law c ourts.a So that the limits of the *368admiralty jurisdiction in- England, as fixed at the time the United States^ constitution was established, could . - , , , ,- , ’ not be ascertained by. the common law- alone.. Ke*369sort must have been had for this purpose to the resolutions of the king in council, in 1575 and 1632, and to the statutes of Richard II. ajjd Henry VIIL *370The framers tíf the constitution took a large and ^eral view of this subject. They were not ignorant of the usurpations of the common law .courts upon the admiralty jurisdiction, and therefore used, ex industria, the broad terms “"ab cases of admiralty arid maritime jurisdiction leaving the judiciary to'determine the limit of these terms, not merely ■ by the inconsistent decisions of the English common law courts, (which are irreeoncileable with erieh. other, and with the remains of'jurisdiction that aire by them acknowledged still to belong to the admiralty,) but by an impartial view of the whole matter, going back to its original foundations. What eases are “ of admiralty and maritime jurisdiction,” must be determined, either by their nature, or by th,e place where they arise. The first class includes all questions of prize, and. all maritime Contracts, wherever made, and wherever to be executed. .The second iucludes all torts and offences committed on the high seas, and in ports and rivers vt *hin .the ebb and flow of the fide. It is within the lau r bianch of the admiralty jurisdiction that the preseftt case falls. The jurisdiction of the admiralty all over Europe, and the countries conquered and colonized by Europe, extends to the sea,, and its, inlets, arms, rind ports ; wherever the .tide ebbs and flows. Even in England, this particular, offence, when u committed ini great ships, being hovering in the main stream of grérifc rivers, beneath the bridges of the same, nigh to the sea,-” is within the admiralty jurisdiction. The place- where this murder was- committed is precisely within the,jurisdiction- of the admiralty as expounded *371by Lord Hale in his commentary an the statute 28th Henry VIII, ch. 15. which has been preferred ^0 Lord Coke’s construction, by all the judges-of Eng* land in the very recent case of the King v. Bruce.a*372The observation of Mr. Justice Buller, in Smart v, Wolff,a that “ with respect to what is said relative to the admiralty jurisdiction in 4 Inst. 135., I think ,that part of Lord Coke’s .work has been always received .with great caution, and frequently contradicted* He seems ,to have entertained, 'not only a jealousy of,'but'an enmity against, that jurisdiction,” is sufficient, answer to any thing that depends on tire authority of Lord Coke as to this controversy. If then the locsis in qno be within the admiralty jurisdiction, it is “ out of the jurisdiction of any' particular state j” because all the states have surrendered, by the constitution, all.the. admiralty jurisdiction they formerly possessed to the United States. The cri” *373ííiinal branch of that jurisdiction has been given.by the United States to the circuit - court in the áct 1790, ch. 9. The locus in quo has not been shown to be within the state jurisdiction. Because the state process has been served therein is no proof of the. legality’, of such service ; and. the cáse does not state that such process had been, in any instance, served on board the public ships of war of the United States* Those ships are exempt even from a foreign jurisdiction ■; and, when- lying in the dominions of another nation, are not subject to its courts, but all civil and criminal causes arising on board óf, them are exclusively cognizable in the courts of the United States; This is a principle of public law which has its foundation in the equality and independence of sovereign states, and in the fatal inconveniences and confusion which any other Tule would introduce. The merchant vessels of a nation may be searched for contraband, for enemy’s property, or for.smuggled goods, and, as' some have contended, for deserters, whether they are on the high seas or in the ports of the searching power; but public ships of war maynot be . searched, whether on the high seas or in the ports of the power making the eearph'. Theyirsimay be searched any where,.except within .the jurisdiction of a neutral state. They jjqy be searched on the ocean ; because there all nátions have a common jurisdiction : They may be searched in the waters of the searching power ; because the .permission to resort to' its ports, (whether implied or express,) does not import any exemption from the local *374jurisdiction.a .The latter ( i. e. public vessels) may not searc^ec^ aiiy where, neither in the ports which they enter nor on the high seas. Not in the ports which they enter ; because the permission to enter implies an exemption .from the jurisdiction of the place. Nor on the high seas ; because the common jurisdiction which all nations have thereon does not extend to a public ship of war, which is subject only to the jurisdiction-of the sovereign' to which it belongs. Every argument by which this exemption is sustained','as to foreign states, applies with equal force as between the United States and every particulár state of the Union.; and it is fortified by other arguments drawn from the. peculiar nature and provisions of our own municipal consti-» tution. The sovereignty of the United States and of Massachusetts are not identical '; the former have a distinct soT hreignty; for separate purposes, from the latter. Among these is the power of raising and.mainteining fleets and armies for the common defence and the execution of the laws. If any particular state had it im its power to intermeddle with the police and government of an army or navy thus raised, upon any pre • text, there would be .an end of the exclusive authority of the:United States in this respect. Wars and othei •measures, unpopular in particular sections of the country, might be impeded in their prosecution, by the interference of the state authorities. Such a conflict of jurisdictions must terminate in anarchy and confusion. But the court will take care that no such conflict shall *375■ fiíisé. The judiciary act of-1789, ch. 20. s. 11; giving to the circuit courts cognizance of all crimes and offen8 . tt • j a eés ‘Cognizable under the authority of the United Sttifas and- the statute of 1790, ph. 9. declaring, that “if any person shall commit upon the High' seas, or in any river,- haven, basin, or bay, out of the jurisdiction of only particular state, murder, &c. he shall on conviction suffer death,” and'that “if any person or persons shall, Within any fort, &c. or in any other place or district of Country under the sole • and exclusive jurisdiction■ of the United States, commit the crime of wilful murder, such person or persons,- On being thereof cónvicted shall suf" fdf death,” and a public ship of war, as well as the space df water she-occupies, being, “out of thejurisdiction of any particular state,n and being uaplace’> under the sote and exclusive jurisdiction of ths United States; T il follows that the circuit court of Massachusetts district, had exclusive Cognizance of this offence, which Miad committed Out of the jurisdiction of any particu* lar-state, -and in a place under ’-the sole and exclusive jurisdiction of the United States.

¶21Mr. Webster, in reply.

¶22The argument on the part of the, United States is, that the circuit court ha» jurisdiction, first, because the murder was committed on board a national -ship of war, in which no state can exorcise jurisdiction; inasmuch as ships of war are considered as parts of the territory of the government to .which they belong, and nó other government can take cognizance of offences committed ip them. Two answers may be given to this argument. The first is. *376that the main inquiry beingj whether the circuit court has jurisdiction, and the .jurisdiction of that court be-nag Only such as is given to it by the act of congress, it is sufficient to say that no act of congress authorizes that court to take cognizance of any offences^ merely because committed on ships or war. Whefher congress might have done this, or might not, it is clear that it has not done it. It is the nature of the place ih which the ship lies, not the character of the ship itself, that decides the question of jurisdiction. Was the “haven” in which the murder was committed,- within the jurisdiction of Massachusetts,? If so, no provision is made by the act for punishing the offence in the circuit court. The lav? tioes not inquire into the nature of the employment or service in which the offender may have been engaged at the time of committing the offence 5 but only into the local situation or territory where' it. was committed. -. If committed within the ' territorial jurisdiction oí a state, it excludes the jurisdiction of the circuit court by express words of exception. If, therefore, it has been shown that this haven or harbour is .within the limits of Massachusetts, and under the general common law jurisdiction of that state,' the offence being committed ih that harbour, cannot be tried in the circuit court. The second, answer" is, that the’doctrine contended for is applicable only" between.one sovereign . powér and another; a relation in which the government of the United States, does notistand towards the state, governments. Whenever ships of War of the United States' are within the country, in the ports or harbours of any state, they *377are to be bonsidered as at home.. They are not then in foreign ports or harbours, ánd the jurisdiction óffüé states is, as to them, a domestic jurisdiction. If this be not so, persons on board such ships* though ip t.he bosom of their own country,, would be in most cases subject to no civil jurisdiction whatever. Even persons committing offences on land migjit flee on-board such ships, and escape punishment, if they^could not be followed by state process. The doctrine cohtended for would go to a great length. The eases cited speak ofrarmies., as well as ships of .war; and'thes doctrine if applicable in;the latter case, is equally so iii the former. How then .áre offences to he-punished, committed by persons attached to the army of the United States, while in their own country? It is admitted*that in England, such offenders are punished in the courts of common law; and the act of congress establishing the articles of war, also provides expressly, that any officer or soldier accused of a capital or other crime, such as is punishable by the known laws of the land, shall be delivered, to -the civil magistrate, in order to be brought to trial. What civil magistrate is here inten-. died? It must necessarily be such magistrate as. acts under state authority, because no provision is mad* for trial of such offenders in the 1 courts of the United-States. Perhaps such provision, might be made by con-gress, relative as well to offences committed by soldiers in the army,' as by seamen in the navy, under the general power to establish rúíes for the government the army and navy. But no such provision has hitherto been made. State processj on the contrary, has' *378been constantly served and obeyed in cases proper for of .the civil authority, both in the army and navy. Writs of Halms Corpus, issued by state -judges, have been served on, and obeyed1" by,; military, ‘officers in their camps and naval • commanders oil their quarter decks.a To tall these purposes the state courts are considered as parts of the general ■ ^rstem of judicature established in the country. They are not regained as foreign, but as domestic tribunals. The consequences, which it ,has been imagined might follow from the exercise of state jurisdiction in these cases, are hypothetical and possible only. Hitherto no inconvenience has been experienced. In most instances which might occur, this court would have a power of revision; and if, in other instances, inconvenience should be felt, it must be attributed to that distribution and partition of power, which the people have made between the general and state governments. It would be a strange inconsistency to hold the states to be foreign powers in relation to the go" vernment of the United States, and to apply, to them the principles of the cases cited, and to hold their courts to be judicatures existing under a foreign authority; when the judgments of those courts are not only tréated here as judgments of the courts of the United States are treated, but when, also congress has referred, to them the 'execution of many laws of the general government, and whfen appeals from their decision are constantly brought, in the provided cases, into this court by • writ of error. It is also insisted, *379on the . other side, that this is a case ,of admiralty and maritime jurisdiction, It is not a case of exclusive admiralty jurisdiction, if that, jurisdiction is to be define'd and limited in its application to the case, by the general principles of the English law. And not only must' the common law be resorted to, for the interpretation of the technical terms and phrases of that science, as used in the constitution, but also for ascertaining the bounds intended to be set to the jurisdiction of other courts. In -other words, the framers of the constitution must be supposed to have intendéd to establish courts of common law, of equity, and of admiralty, upon the same general foundations, and with similar powers,- as the courts of the same descriptions ' respectively) in that system of jurisprudence with which they were all acquainted. Is there any doubt what answer they- would have given, if they had been asked whether it was iheir purpose to include in the admiralty and maritime jurisdiction» such cases only as had been tried by the courts óf that jurisdiction for a -century, or whether they intehded to confer the admiralty jurisdiction, as the civilians contend it existed before the time of Richard the Second ? It is said, however, that there has been a practical construction given to this provision of tht constitution, as well by congress as the courts of law, which has, in one instance at least, -and that a very important one, departed from the limit assigned to the admiralty by the, corpmon law. This refers to seizures for the violation of the laws of trade and of the revenue ; which seizures, although made m ports and harbours, and within the bodies of counties, ara *380holden to be of admiralty jurisdiction, although suej* certainly is not the case in England, The existence of this exception must be admitted. The act to establish the judicial courts provides, th^t the district Court “shall have exclusive origipal cognizance of all eivil ca'uses of admiralty and maritime jurisdiction, including all seizures under laws o,f impost, navigation or trade, where'the seizures are made on waters navigable from tfie sea, &c.” Perhaps this act need not necessarily be so construed as to consider such seizures to be of admiralty jurisdiction, if they were not such before. The word “including” might refer to the general powers of the court, and not to the words immediately preceding, viz. “ admiralty and maritime jurisdiction.” But then such seizures, like' other civil causesj are, by'the constitution, to be tried by . jury, unless they be of admiralty and maritime jurisdiction ; and it must be admitted that this court has repeatedly decided, that they are of admiralty jurisdiction, and are not to be .tried by jury. The 'first case is that of La Vengeance. The opinion of •the court was delivered in this case, without giving the reasons upon which it was founded.a The next is the Sally,b ‘ Thife was decided without argument* and expressly on the authority of the preceding case. The point was, made again in-The United States v. The Betgey and Charlotte,c and decided as it had been before-; ■the court considering the law to be completely settled by the case' .of the The Vengeance. Two sub* sequent cases, the Samuel and the Octavia,d have *381been disposed of in the same manner. As was said in the argument of the case last cited, the arguments ged .against the doctrine, in all the-cases subsequent to the Vengeance, have always been answered by a reference to the authority of that case. As these cases have all been decided, without any exhibition of th,p grounds and reasons on which the decisions rest, they afford little" light for analogous cases. .They show, that in. one respect, admiralty jurisdiction fa here to be taken to be more comprehensive than it is in England. It will not follow, that it is to be so taken m all res-. pects. If this were to follow, it would be impossible to lind any bound or limit at all. . it is admitted, that this exception from the English doctrine of admiralty jurisdiction does exist here. But if distinct and satisfactory reasons for the exception can be shown,.this will Tather strengthen than invalidate the general position. Such reasons may, peihaps, be found in the history of the American colonies, and of the vice-admiralty courts established in them by the crown. Thf first and grand object of the English navigation apt, (12 Ch. II.) seems to have been the plantation trade.a It was provided by that act, that none but English ships should carry the plantation commodities; and that the principal articles should be carried only to the mother country. By the subsequent act. of 15 Ch. If, the supplying of the plantations with European goods was meant to be confined .wholly to the mother pountry. Strict rules were laid down to secure thp due *382execution of these acts, and heavy penalties imposed (on Such, as should vio),ate, them. Other statutes to enforce the provisions of these were passed, with other rules, and new penalties, . in- the subsequent years of the same reign» “In this manner was the trade tó ated from the plantations tied up, almost for, the sole and exclusive benefit of the mother country. Büt laws which-made the interest of a whole people subordinate to that of another, residing, at the distance of three thousand miless we're not likely to execute themselves very readily; nor was it easy to find many' upon the spot who Could be depended upon for carrying them into execution.”a in fact, these haws were, more or less, evaded or- restricted in all the colonies. To enforce (hern was the constant endeavour' of the government at hotne; and to prevent or elude their operation the constant object of the colonies. “But the laws of navigation were no where disobeyed and. contemned so openly as' in New-En§fland. The people of Massachusetts Bay were, from’ the first, disposed to ' act as if independent of the mother country} and having a governor and magistrates o^f their own choice, it was very „ difficult to enforce any regulations which came from the English’-parliament,-and were adverse to their colonial interest.”b No effectual means of enforcing the several acts of navigation and trade-had been found, wh^n, iii 1696, the act of 7 and 8 Will. Ill, ch. 22. was passed, for preventing frauds, and regulating abuses in the plantation trade’. This act gave a new *383body of regulations; and, among.other things, because greát difficulty had been experienced-m procuring victions, new. qualifications Were required for jurors, who should sit in’ causes of alleged violation of the laws ; and the officer or informer might elect to ‘ bring his prosecution in any county within the colony. All these correctives were of little force, so that thé government soon after, with the view of securing the execution of this and the other acts of trade ánd navigation, proceeded to institute courts of admiralty.a'These courts appear to.have.claimed jurisdiction in. causes of alleged violation of. the laws of trade and navigation, upon the construction of this act of 7 and 8 Will, III. In 1702',, the Board of .Trade, “being doubtful,” as they say, “of the true jurisdiction of the admiralty,” desired Jto be informed by the Attorney and Advocate General, (Sir Edward Northey and Sir John Cooke,) “whether the courts of admiralty, in the plantations; by virtue oi the-'7 and 8 of King William, or any other act, have there any further jurisdiction than is exercised in England ? Whether the courts of admiralty, in the plantations, can take cognizance of questions which arise .concerning the importation or exportation of any goods to or from them, or of frauds in matte; s of trade? And in cáse a vessel' sail up any river with prohibited goqds, intended for the use of the inhabitants, whether the -informer may choose in what court.he will prosecute— in the court of ' admiralty, or of common l^w?” The opinion of the Attorney General was, that “the act (7 and8 Will. III.) gave the admiralty court in the-*384plantations, jurisdiction of all penalties and forfeitures por un]awfu] trading, either in defrauding the king in . . b t. ® his customs, or importing into, or exporting out of, the plantations, prohibited goods; and of all frauds in matters of tráde, and offences against the acts of trade committed in the plantations and he mentions the case of Colonel Quarry, judge of the admiralty in Pennsylvania, then pending in the Queen’s Bench,, in which a judicial decision on the point might be expected. The opinion of.-the Advocate General wasrof course, equally favourable to the admiralty jurisdiction.a On this construction of the statute, the Courts of admiralty in, the colonies assumed jurisdiction over causes arising from violation of the laws of trade and of revenue ; “and from this time,” says Mr. Reeves, “there seems to have been a more general obedience to the acts of trade and navigaton.”" This jurisdiction continued to be exercised by the colonial courts of admiralty down to the period of the revblution ; and is still'exercised by the courts of those colonies, which retain their ■ dependence on the British crown.b This may he the ground on which it has been supposed that the states of the union, in forming.a new government^ and granting to it jurisdiction in admiralty and maritime causes, might be presumed to have included in the grant the authority to take cognizance of causes arising from the violation of the laws relative to customs, navigation, and *385Wade. All the colonies Had seen this authority exercised as matter of maritime jurisdiction. It was,not peculiar to the courts of any one of them, but common to all.. It had been engrafted on the original admiralty powers of these courts for ne<tf a century. They were familiar to the exercise of this jurisdiction, as an admiralty jurisdiction. It had been incorporated with their1 admiralty jurisdiction, by statute ; and they had long regarded it as a part of the: ordinary and established authority of such courts.There might be reason, then, for supposing, .that those-who made the constitution-,- intended tp. confer this-power as they found it. And if any other exception to the-English definition, and limitation of the power of courts of admiralty,, can be found to have been as-early adopted, as uniformly received, as long- practised upon, and as intimately interwoven with the system of" colonial jurisprudence, there will be equal reason to Believe that the framer's of the constitution had regard, to such exception also. Such exceptions do not .impeach the rule; Oh the contrary,, their effect is to'establish- it. If the exception when examined, appears to stand on grounds peculiar to itself, the inference is, that where no peculiar reasons exist for an exception,, such exception does not exist- In the case before the cpurt, no reason is given, to induce a belief that an exception does exist. No practice of" excluding 'the common law courts from- the, cognizance of crimes-committed in ports and harbours,, is shown to have eit* *$ted in any colony. There can be no doubt, these* *386fore, that, saving such exceptions as can be reasonably f°r-> the admiralty jurisdiction was intended. to be given to the courts of the United States, in the. extent, and subject to' the limits, which belonged to it in that system of jurisprudence with which those who formed the constitution were well acquainted.