United States v. Wiltberger

THIS was an indictment for manslaughter, in the Circuit Court of Pennsylvania. The jury found the defendant guilty of the offence with which he stood indicted, subject to the opinion of the Court, whether this Court has jurisdiction of the case, which was as follows: The manslaughter charged in the indictment, was committed by the defendant, on board of the American ship the Benjamin Rush, on a seaman belonging to the said ship, whereof the defendant was master, in the river Tigris, in the empire of China, off Wampoa, and about 100 yards from the shore, in four and a half fathoms water, and below the low water mark, thirty-five miles above the mouth of the river. The water at the said place where the offence was committed, is fresh, except in very dry seasons, and the tide ebbs and flows at, and above the said place. At the mouth of the Tigris, the government of China has forts on each side of the river, where customhouse officers are taken in by foreign vessels to prevent smuggling. The river at the mouth, and at Wampoa, is about half a mile in breadth. And thereupon, the opinions of the Judges of the Circuit Court, being opposed as to the jurisdiction of the Court, the question was by them stated, and directed to be certified to this Court. Feb. 14th. Mr. C. J. Ingersoll, for the United States, argued, that by the Constitution the judicial power extends to all cases of admiralty and maritime jurisdiction, and Congress is invested with authority to define and punish piracies and other felonies committed on the high seas. The judiciary act of 1789, c. 20. s. 11. gives jurisdiction over these offences to the Circuit Court. The act of April 30th. 1790. c. 36. for the punishment of certain crimes against the United States, s. 12 provides for the punishment of manslaughter committed on the high seas.a But it is understood

a The sections of this act commented on in the argument, are as follows:

b 1 Bro. Civ. & Adm. Law, 422; Ibid. 460. any person convicted of manslaughter, shall be punished in the manuer provided by the act, the common law may be referred to for a definition of the offence.c Neither robbery, murder, mayhem, nor many other offences, made punishable by the statute laws of the United States, are defined by those laws. The distinctions of homicide, as marked out by the common law, are unknown to the civil or Roman law. But when jurisdiction is given of murder committed on the high seas, &c. to a Court of Admiralty, the law defining the crime is to be derived from the common, and not from the civil law.d It is also objected, 2. That the local jurisdiction of the Chinese empire over the offence charged by the indictment, if found by the jury to have been committed within its territorial limits, necessarily excludes the jurisdiction of the Courts of this country over the offence.

c The United States v. Palmer, 3 Wheat. 626.

d The United States v. M'Gill, 4 Dall. 426. 429. To this objection, it is answered, that by the principles of universal law, a qualified national jurisdiction and immunity extends to the ships of the nation, public and private, wherever they may be. As to public vessels, this immunity is unquestionable.e And even private vessels, though from the necessity of the case, subject to the revenue laws of the country where they may be, are yet in many respects exempted from the local jurisdiction. Minor crimes, which do not offend the safety or dignity of the local sovereignty, are usually left to the cognizance of the government to whose subjects the vessel belongs. Nor does this, in the slightest degree, affect the eminent domain and sover ignty of the foreign nation over its harbours and rivers.f But China herself disclaims jurisdiction in such cases, and renvoys them to the forum of the offending party.g The offence here, being

e Vattel, L. 1. c. 19, s. 216. The Exchange, 7 Cranch, 116. Case of Nash, alias Robbins, Bee's Adm. Rep. 266. Vide APPENDIX, Note I.

f 1 Mason, 147. United States v. Hamilton, 1 Mason, 152.

g Sir George Staunton's Translation of the Laws of China, 36. 523. The following extracts from this work were read at the argument, and it is thought their insertion here will not be unacceptable to the learned reader. committed by a citizen of the United States upon another citizen, on board a merchant vessel of this country, lying in the waters of a foreign country, which expressly disclaims jurisdiction of the case, it is dispunishable, unless it be punishable in the Courts of this country; and it appears at least questionable, whether there is any constitutional power in Congress to punish it, except in the mode already provided for, as an offence committed on the high seas. This brings us to the 3d objection, which is, that the offence was not committed 'on the high seas,' within the true intent and meaning of the act of April, 1790. c. 36. s. 12. In answer to this objection, it is insisted, that before the adoption of the present constitution, the admiralty and maritime jurisdiction extended every where on tide waters below low water mark.h The same extension has been given to the admiralty jurisdiction under the constitution.i The opposite argument is founded on the expression 'high seas,' as contradistinguished from that portion of the sea, where the tide ebbs and flows, but which is enclosed by head lands, or forms parts of rivers above their mouths. But the celebrated statutes of Richard II., regulating the admiralty jurisdiction, allow the Admiral to have cognizance of things done on the sea, 'sur le meer,' without the addition of high. The stat. 27 Eliz. uses the expression 'main sea.' The 28 Hen. VIII. c. 15., concerning the trial of crimes committed within the admiralty jurisdiction, uses the terms, 'in and upon the sea, or in any other haven, creek, river, or place, where the Admiral hath, or pretends to have, power, authority, or jurisdiction.'j The act of Congress of 1790. c. 9. uses the terms promiscuously, 'high seas,' (s. 8. s. 9.) 'the seas,' (s. 10.) 'the sea,' (s. 11.) 'high seas and seas,' (s. 12.) The term 'sea' is water, as contradistinguished from land. The term 'high sea,' does not necessarily import deep sea; although the classical writers frequently use the correspondent Latin word in that figurative sense; as altum aequor, altissimum flumen, &c. It is a common expletive applied, in both languages, to 'sea,' 'road,' 'crime,' and many other things. The contrary acceptation of the term 'high sea,' would exclude bays, arms of the sea, coves, belts, straits, estuaries, great rivers, and lakes. There is no other limit to the sea, but that where the tide ceases to ebb and flow, whether on the sea coast, or in bays and rivers. Even the English statutes of Richard II., made to restrict the admiralty jurisdiction, and in derogation of its ancient authority, give it cognizance of murders, &c. committed on board great ships in the streams of great rivers below the first bridges. So the French law gives the admiralty the same jurisdiction, as to rivers, for which we contend.k The case of the United States v. Bevans,l does not stand in our way, for the point now in question was not determined in that case.

m The United States v. Bevans, 3 Wheat. 336. 386.

n The Exchange, 7 Cranch, 116. Speech of Mr. (now Chief Justice) MARSHALL, in the case of Nash alias Robbins APPENDIX, Note I. of a temporary allegiance, and are, in all respects, amenable to the laws of the country in which they are found; to its penal laws especially. The ocean, the high seas, are a common domain; and every ship, private as well as public, is there upon the territory the her sovereign; and amenable to no laws, but the laws of her sovereign, and the law of natious. It is from this principle that every nation derives its jurisdiction over the persons on board its ships: the spot they occupy in the common domain, is its own territory, and it has a right to give the law to it.o 2. The national character of the offender, or of the person offended, makes no difference. If the crew had all shipped in England, and been English subjects, they would have been equally entitled to protection, and equally amenable to our laws. If, upon the ocean, or high seas, a foreigner had been murdered, his death would have been equally avenged by our laws. If a foreigner on board this ship, had committed an offence, he would equally have been liable. It is not correct, then, to say, that personal jurisdiction is universal, as to citizens; nor that it does in no case extend to foreigners. 3. In the next place, the extent or true nature of the constitutional power is wholly immaterial in this case. That instrument had in view, 1st. To partition powers between the Union and the States; 2dly. To distribute powers among the different branches of the national government. The judicial power, in its exercise, is subordinate and auxiliary to the power of Congress. The whole

o 1 Sir L. Jenkins' Works, 91. jurisdiction has never been exercised. But the principle, in its application to the very case, has been decided in the case of the United States v. Bevans.p It follows, therefore, that the judicial authority is of no avail, unless there be a corresponding power in Congress; that as the judicial authority is unavailing without a legislative act, it is to the act of Congress alone we must look for the extent of the jurisdiction. When, therefore, the authority of the judiciary is declared to extend to all cases of 'admiralty and maritime jurisdiction,' it is to be extended only to such cases as Congress have power to provide for. The same power might be exercised through the medium of the State Courts, or omitted altogether. It follows, also, most indubitably, that the powers exercised by Congress, can receive no illustration from the powers given to the judiciary by the constitution; and we are thus happily relieved from the necessity of exploring the distant speculation of the ancient jurisdiction of the admiralty. 4. What, then, is the true meaning of the terms, on the 'high seas,' as used in the act of Congress? In their ordinary sense, they mean the open ocean, as distinguished from creeks, rivers, ports, and other bodies of water, inclosed and infra-territorial. The flow of the tide cannot be the true test; for then the sea would flow to the falls of Schuylkill and Delaware, and would comprehend a vessel moored at the wharf. If we refer to the authorities

p 3 Wheat. 336. 386. of the English law, they are clear and uniform. The common lawyers never at any period denied the admiralty jurisdiction upon the 'high seas.' The civilians claimed a jurisdiction beyond what was conceded to them by the common lawyers, beyond the 'high seas;' in rivers, bays, &c. Thus, the very contest, in its origin, admitted that the 'high seas' were distinguishable from other waters. The statute 13 Richard II. confined the admiralty to things done upon the 'sea.'q The 15 Richard II. gave it criminal jurisdiction in homicide and mayhem on great rivers, &c.r The 27 Eliz. c. 11. is conclusive of the question.s Sir Leoline Jenkins makes the distinction expressly.t So, also, we have the authority of Lord Hale in many places;u and all the authorities agree that the divisum imperium is only upon the sea coast. The distinction is also perfectly understood and maintained in our own legislation; and the act now in question furnishes the clearest recognition of it, as will appear by a comparison of the 8th with the 12th section. In the 8th section, the distinction is made between the 'high seas,' and 'a river, haven, basin, or bay.' The latter expressions can never, by any fair rule of construction applied to penal statutes, be transferred from the 8th to the 12th section. In criminal cases, a strict construction is always to be preferred; and if there be doubt, that is of itself conclusive. In Bevan's case, the distinction between the high seas and other enclosed parts of the sea, was not denied by the counsel for the United States, and the Court do not even mention it as at all doubtful.v But, it is asked, whether the criminal jurisdiction of the admiralty is not as extensive as the civil? To which it is answered, that the criminal jurisdiction depends upon the place where the offense is committed; the civil, upon the nature of the subject; and there can, therefore, be no comparison of their extent.

SEC. I. That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted, on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. SEC. II. And be it enacted, That if any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal, and not as soon as may be disclose and make known the same to the President of the United States, or some of the Judges thereof, or to the President or Governor of a particular State, or some one of the Judges or Justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars. SEC. III. And be it enacted, That if any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons, on being thereof convicted, shall suffer death. SEC. VI. And be it enacted, That if any person or persons, having knowledge of the actual commission of the crime of wilful murder, or other felony, upon the high seas, or within any fort, arsenal, dockyard, magazine, or other place or district of country, under the sole and exclusive jurisdiction of the United States, shall conceal, and not, as soon as may be, disclose and make known the same to some one of the Judges, or other persons in civil or military authority under the United States, on conviction thereof, such person or persons shall be adjudged guilty of misprision of felony, and shall be imprisoned not exceeding three years, and fined not exceeding five hundred dollars. to be objected, 1. That the civil, or Roman law, which is the admiralty code, does not recognise SEC. VII. And be it enacted, That if any person or persons shall, within any fort, arsenal, dockyard, magazine, or other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of manslaughter, and shall be thereof convicted, such person or persons shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars. SEC. VIII. And be it enacted, That if any person or persons shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or, if any captain or mariner of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or merchandize, to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defence of his ship, or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken, and adjudged to be, a pirate and felon, and being thereof convicted, shall suffer death: and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may first be brought. SEC. IX. And be it enacted, That if any citizen shall commit any piracy or robbery, aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under colour of any commission from any foreign prince or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of authority, be deemed, adjudged, and taken to be, a pirate, felon, and robber, and on being thereof convicted, shall suffer death. (continued on p. 80) or define the offence of manslaughter.b To which it is answered, that Congress, having declared that SEC. X. And be it enacted, That every person who shall either upon the land or seas, knowingly and wittingly aid and assist, procure, command, counsel or advise, any person or persons to do or commit any murder or robbery, or other piracy aforesaid, upon the high seas, which shall affect the life of such person, and such person or persons shall thereupon do or commit any such piracy or robbery, then all and every such person, so as aforesaid aiding, assisting, procuring, commanding, counselling, or advising the same, either upon the land or the sea, shall be, and they are hereby declared, deemed, and adjudged to be, accessary to such piracies before the fact, and every such person, being thereof convicted, shall suffer death. SEC. XI. And be it enacted, That after any murder, felony, robbery, or other piracy whatsoever, aforesaid, is or shall be committed by any pirate or robber, every person who, knowing that such pirate or robber has done or committed any such piracy or robbery, shall, on the land or at sea, receive, entertain, or conceal, any such pirate or robber, or receive or take into his custody any ship, vessel, goods, or chattels, which have been, by any such pirate or robber, piratically and feloniously taken, shall be, and are hereby declared, deemed and adjudged, to be accessary to such piracy or robbery, after the fact; and on conviction thereof, shall be imprisoned, not exceeding three years, and fined, not exceeding five hundred dollars. SEC. XII. And be it enacted, That if any seaman or other person shall commit manslaughter upon the high seas, or confederate, or attempt or endeavour to corrupt any commander, master, any goods, wares, or merchandize, or to turn pirate, or to go over to or confederate with pirates, or in any wise trade with any pirate, knowing him to be such, or shall furnish such pirate with any ammunition, stores, or provisions, of any kind; or shall fit out any vessel, knowingly, and with a design, to trade with or supply or correspond with any pirate or robber upon the seas; or if any persons shall any ways consult, combine, confederate, or correspond, with any pirate or robber on the seas, knowing him to be guilty of any such piracy or robbery; or if any seaman shall confine the master of any ship or other vessel, or endeavour to make revelt in such ship; such person or persons, so offending, and being thereof convicted, shall be imprisoned, not exceeding three years, and fined, not exceeding one thousand dollars. Mr. Sergeant, contra, stated, that the indictment in this case, pursuing the words of the act, charges the offence to have been committed upon the 'high seas.' It is of no consequence what may be the extent of the power given by the constitution to the government of the Union. The question is, to what extent has the power so given been exercised? It is not necessary, therefore, to inquire whether this was an offence within the admiralty jurisdiction. The only question is, whether it is within the true meaning of the act of Congress.m The offence in question, if committed at all, was not committed upon the high seas: whether these terms be considered in their ordinary sense; as used in foreign authorities of the law; as employed in acts of Congress; as used in the act in question; or as expounded by our own judicial decisions. 1. The national character of the ship or vessel in which the offence was committed, makes no difference in this case. A public armed vessel is a part of the national sovereign force, clothed with the sovereign character, and wherever she goes entitled to immunity. She is subject only to the jurisdiction of her sovereign, and is a part of his territory;n is exempt from visition and search, and governed by such laws as her sovereign may choose to give her. The immunity she enjoys does not depend upon the civil or admiralty law; but, like the privilege of an ambassador, or the immunity of troops on their passage, depends upon the law of nations. Every sovereign may refuse admission, but having admitted, is bound to respect. Still, it does not follow, that the Courts of her own country have jurisdiction on board of her. Be this as it may, a private ship has no such immunity. On the ocean she is bound to submit to visitation and search. In port, she is bound to submit to the local jurisdiction, and entitled to the benefit of the laws of the place. Those who are on board of her, incur the obligation The Attorney General, in reply, insisted, that although penal laws are, to be construed strictly, the intention of the legislature must govern in their construction. If a case be within the intention and reason, it must be considered as within the letter, of the statute. This act having been passed by Congress on the first organization of the government, it must have been their intention to make the exercise of their power co-extensive with their jurisdiction; and to punish all the crimes enumerated, in every place within their jurisdiction. The act must, therefore, be construed so as to engraft the words of the 8th section, descriptive of the place in which murder may be committed, on the 12th section, which describes the place in which manslaughter may be committed. After expressing themselves fully in the previous section as to the places in which one of the crimes intended to be punished by the act must be committed, it was natural that the legislature should suppose the language engrafted into a subsequent section on a subject of the same class. Thus, the 1st section of the act defines the crime of treason, and provides, 'that if any person or persons owing allegiance to the United States of America, shall levy war,' &c. 'such person or persons shall be adjudged guilty of treason,' &c. The 2d section defines misprison of treason, and in specifying the persons who may commit the crime, omits the words 'owing allegiance to the United States,' and uses without limitation or restriction the general terms 'any person or persons.' Yet these general terms were obviously intended to be restrained by the words 'owing allegiance to the United States,' which are used in the preceding section. The crimes of murder and manslaughter are kindred offences, and are parts of the same general offence of homicide. Congress must have intended to make the same provision for their punishment, as to the places within which they must be committed in order to give jurisdiction to the Courts of the Union. Thus, the 3d section of the act describes the places on land in which murder must be committed in order to give those Courts jurisdiction of the offence; and the 7th section describes in the very same terms the places on land in which manslaughter must be committed in order to give them jurisdiction. Observe the consequences of a contrary construction as to murder alone. The 9th section extends the guilt of the offences enumerated in it to a citizen of the United States committing them under colour of a foreign commission. But this section, in describing the place where the offence may be committed, omits the words 'in any river, haven, basin, or bay,' and uses the words 'high seas' only. It is incredible that it was the legislative intention to distinguish between the same crime, committed under the pretext of authority by a foreign commission, on the high seas, and on the waters of a foreign State, or of the United States. So, also, the 10th section provides, 'that every person who shall, either upon the land or the seas, knowingly and wittingly aid and assist, procure, command, counsel, or advise, any person or persons, to do or commit any murder or robbery, or other piracy, aforesaid, upon the seas, which shall affect the life of such person, shall,' &c. Here Congress cannot have intended to exempt from punishment those persons who shall be accessaries before the fact to a murder or robbery committed 'in a river, haven, basin, or bay,' &c. A similar argument is applicable to the 11th section. As to the 12th section, beside the offence of manslaughter, the other offences which it enumerates are all accessorial to those mentioned in the 8th. It is, therefore, evidently connected with the 8th. Feb. 18th. Mr. Chief Justice MARSHALL delivered the opinion of the Court.