
    (Constitutional Law.)
    The United States v. Bevans.
    Admitting 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.
    Quixre, 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
    
    ■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.
    
      Ti* ¿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.
    Congress 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.
    The 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 the 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.
    ,The jury found a verdict that the prisoner, William Bevans, was guilty of th'e offence as; charged in the indictment.
    Upon the foregoing statement of facts, which was stated and made under the direction of the court, the prisoner, by his counsel, after verdict, moved for a new trial, upon which motion two questions occurred, which 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.
    Feb. 26th.
    Mr. Webster, for the defendant.
    The 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 case, 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.” 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 lawyers, 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.
      
       “ 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.” 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.
    
      u Insula portum
    
    .Efficit objéctu iaterum : ^uibusomnis ab alto Frangitur, inque sinus scindit sese jinda- reductos!”
    The 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,
      
       and some other dicta. The statute 13 Rich ard 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.” 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-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.” 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 ©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. 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-.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 great $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.” 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 floes not appear that the civilians who were consul; éd «a the occasion, Dr. Paul and Sir Edmund Isham, doubted of this. 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. 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. admiralty, '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.
    Mr. Wheaton, for the United- States.
    The •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 prohibition, 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. 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. 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.
      Grotius comes more directly to the 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.” 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. The case of the Exchange, determined in this court after a.most learned, able, and eloquent investigation puts the seal to thé doctrine. 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 
      asient 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. In the memorable case of the frigate Chesapeake, the pretension of searching public ships for deserters was solemnly disavowed by 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. 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.
      All 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 sovereign. 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, 
      those 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 jurisprudence 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. 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,” '&c
      
       But if this construction should not be tenable, it may be shown that an offence committed in the place 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. -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.
      
       On this- branch of'the cáse it
    
      •would be useless.to do more than refer to the opinion of one of the learned judges of this court, in which all the learning on the civil and criminal jurisdiction of the admiralty is collected- together, and concentrated in a blaze of luminous reasoning, to prove that this tribunal, before the statutes of Richard II. had 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. &f admiralty in Scotland, .. France,, and the other conntries of Europe possess the extent of jurisdiction we contend for. 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 navigable from the sea, &c. shall be causes of admirally an<^ maritime jurisdiction. And in the cáse, of the Vengeance,
      
       and 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. 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 1790, 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.
    The Attorney-General on the same side.
    If 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. 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¿ 
      locus 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. 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* courts 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 embrace “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. The war between them would never have been terminated, but by the overruling authórily of the *n c^an<^^ A temporary suspension of hostilities had been effected by a previous agreement of
    
      the judges of tíre ting’s bench and the admirpity, made in 1575;. but that agreement was soon violated, the common law c ourts. So that the limits of the admiralty jurisdiction in- England, as fixed at the time the United States^ constitution was established, could . - , , , ,- , ’ not be ascertained by. the common law- alone.. Kesort 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 The 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 
      by 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.
      The observation of Mr. Justice Buller, in Smart v, Wolff, 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” ííiinal 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 jurisdiction. .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 ■ 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.
    Mr. Webster, in reply.
    The 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. that 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 are 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' been 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. 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, on 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 holden 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. The next is the Sally, ‘ 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, 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, have been 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. 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 execution 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.” 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.” 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 body 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.
      
       '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-plantations, 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. 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. 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 Wade. 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* fore, 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.
    Feb. 21st.
    
      
      
         Hale, De'Jure Maris. ch. 4.
    
    
      
      
         Exton, 146.
    
    
      
      
         2 Hale’s P. C. ch. 3.
    
    
      
      
         Owen, 123,
    
    
      
      
         Life of Sir L. Jenkins, Vol. 1. p. 77.
    
    
      
      
         Exton, 100.
    
    
      
      
         6 State Trials, 795.
    
    
      
      
         Hale's P. C. ch. 3.
      
    
    
      
      
         Dodson's Life of Sir Michael Foster, p. 4.
    
    
      
       The United States v. Collidge, 1 Gallis, 488.
    
    
      
      
         The Daroline, 6 Rob. 463.
    
    
      
      
         Droit des Gens, L. 2 ch. 7 s. 80
    
    
      
      
         Id. L. 1 ch. 19 s. 216, 217.
    
    
      
      
         De Jur. Bel. ac Pac. L. 2 c. 3 § 13.
    
    
      
      
         Dis. 174. 136.
    
    
      
      
         7 Cranch. 116.
    
    
      
      
         Tytler's Military Law, 153.
    
    
      
      
         Mr. Canning’s Letter to Mr. Monroe, August 3d, 1807. 5 Waites' Documents, 89.
    
    
      
      
         Bee's Adm. Rep. 266. The. Edinburgh Review for October, 1807, art. 1. contains an examination of this subject,in which the writer deduces the following propositions
      1. That the right to search for deserters on board of merchant ships rests on the same basis as the riglis to search for contraband goods. The ground of t-liis right being in each ca e the injury done to the belligerent — which can only be known by a search, and redressed" by immediate impressment. IP. 9.
      . II. That this right must be1 confined to merchant ships,and. is wholly inapplicable to ships of war of any nation. That in case of the pioteeting of deseTters by such ships the only remedy lies in negotiation and if that fails,in war. p. 9. iff.
      The non-existence cf the right to search national ships is inferred from the following arguments.
      1. The great inconvenience^ of the exercise of the right— the tendency to create dissention,
      2. The silence of all public jurists on the subject,thou«h occasions have arisen in which its existence would have settled the question in dispute at once.
      For example, the case of the Swedish convoy. The judgment of Sir W. Scott thereon. Dr. Croke’s remarks on Schlegel’s Work. Letters of Sulpicius. Lord Grenville’s , speech on the Russian treaty, November, 1810, p* 11.
      . III. The language of all treaties, in Which the subject of searcli is mentioned,, where it is always confined to merchant ships. Consolato del Mare, ch. 273. Treaty of Whitehall, 1661, art. 12. Treaty of Copenhagen, 1670, art. 20. Treaty of Breda, 1667, art. 19. Treaty of Utrecht, 1713, art. 24. Treaty of Commerce with France, 1786, art. 26. Treaty with America, 1795, art. 17, 18, 19. So, in the language of jurists, the tight is always confined to merchant ships. Vattel, liv. 3, ch.7. s. 113 and 114. Mar. tens on Privateers, ch. 2. s. 20. Hubner, de la Saisie des batimens neutres, 1 vol. part 1. ch. 8. s. Whitlock’s mem. p. 654. Molloy, de Jur. Mar. book 1. ch. 5.
      IV.That the territory of’ an independent state is invio-. lable, and cannot be entered into to search for deserters, Vattel, li b 2. ch. 7. s. 93. s. 64, and s. 79.
      That the same principle of inviolability applies to the na* tional ships, and that these ffoiting citadels are as much, a part- of the té rit.ory as cas* ties on dry. land. They are public property, held by public men in the public service, and governed by martial law. Moreover the supreme power of the state resides in them,' the sovereign is represented in them, and every act • done by them is done in bis name,
      V.From the analogical cas.e of the rights and privileges of ambassadors, every reason for which applies strongly to the present exemption. Vattel, lib. 4. ch. 7 and 8. Grotius, de Jure Belli, 17. 4. 4.
      VI.From the absurdity.of determining the claims .of sovereign states in thé tribunals of one of them: when these claims can only be deci«fed by. the parties themselves, Yet if search in such case be resisted, the admiralty would-oH capture be the judge. All jurists agree, that there is no human court in.which the dispuios of nations can be tried, And no provisions are made in any treaty for a trial of this nature, p. 15.
      VII. That the naval supremacy- of Great Britain affords no a.-gilment for the right.
      That this naval supremacy was never admitted ' by other nations, generally, though it was by Holland. That it is confined to the British seas, and that even in them it only respects the mere right of* salute, and no more. See Grotius, lib. 2. ch. 3. s. 8. 13. Puffendorff, de Jury Gent. lib. 4. ch. 5. s. 7. Seld. Mar. Claus. lib. ch. 14. Ibid, lib, 2. ch. Molloy. b. 1. ch. 5. Treaty of peace and alliance with Holland, 1654. art. IS. Treaty of Whitehall, 162, art. 10. Treaty of Breda, 1667, art. 19. Treaty of Westminster, 1674, art. 6. Treaty of Paris, 1784, with Holland art. 2. Vattel, liv. 1. ch. 23. s. 289. p. 17, 18.
      VIII. Two instances only .exist of an attempt to claim the right, and these were of Holland. In the negotiation of the peace of 1654, Cromwell endeavoured to obtain from the Dutch the right to search for deserters in their vessel» of war within the British seas. But this was rejected, and the, right of salute only acknowledged. Soon after that peace (1654) -the question was discussed in consequence of a Dutch convoy being searched as td the merchant ships in the channel-. The Dutch gbvernment, on this occasion, gave public instructions to their commanders to allow the merchant ships to be searched, but never to allow the ships df war. Thurloe. 2. v. p. 503. p. 19, 20.
    
    
      
      
         1 Bl. Com. 407, 108.
    
    
      
       De Lovio v. Boit, 2 Gallis. 470. Note 47.
    
    
      
      
         Roughton’s Articles in Clerk's Praxis, 99, et infra, Exton, Book 12 and 13. Selden, De Dominio Maris, Book 2. ch. 24. Zouch’s Jurisdiction of the Admiralty assorted, 96. Hall’s Adm. Practice, XIX. Spelman's Works, 226, Ed. 1727.
    
    
      
      
         Nota, Que chescun ewe, que flow et reflew est appel brás de meer ci taut aunt come el iflowe.” 22 Assise, 93.
      Choke, J. ‘‘Si jeo ay terre adjoint ál mere issint que le there Wbbe et flbw sur ma terre, quaint il flowe chescun ppetpischer en le ewe-.que est flow sur ma tere, ear donques il est parcel de le mere, et .en • le mere chescun Roinme, poit. pis'cher de common, droit.” Year Book, 8 Edw. 4. 19, a. S. C., cited 6 Co. Rep. 107
      “It was resolved-that Where the sea flows and has plenitu~ dem team, the. admiral shall have jurisdiction of every thing done oh the water between the high water mark by the natural course of the *ea ; yet, when Jhe sea ebbs,’ the land may belong to a subject, and every thing done on the land, when the sea is ebbed, shall be tried at the common law, .for il is then parcel of the county and infra corpus comelqtus, and therewith agrees 8Edw. 4. 19. a. Sbnote that below the low watermark the admit al hath the sole and absolute jurisdiction ; between the high"water mark- and low. water mark, the common law and the admiral have dioisum imperium, as is aforesaid, scilicet one super acquam and the other super terram Sir Henry Constable’s case, 5 Co. Rep. 106, 107.
      “The place absolutely subject to thejurisdiction of the admiralty is -the sea, which seemeth to comprehend public rivers, fresh waters, creeks and surrounded places whatsoever, within the ebbing and flowing of th'e sea. at the highest water, the shores or banks adjoining, from all the first bridges sea ward, for in these the admiralty hath full jurisdiction in all causes criminal and civil, except treasons ¿nd right of' wreck.” Spelman, of the Admiralty Jurisdiction, Works, 226. Ed. 1727.
      “The court was of opinion, that the contract being iaidito be made infra fluxlitn >et , re~ fluxutn maris, it.'might be upon the high.sea;' and was so, if the water was at high water mark, for in that case' there is divisum imperjurn between the common law and the admiralty jurisdiction, according as tliQ water was high or low.” Barber v, Wharton, 2 Ld. Raym. 1452.
      The ancient commission issued under the statute 28 Henry VIII.'ch. 15, concerning the trial of crimes committed within the admiralty jurisdiction, contains the following words, descriptive.' of the criminal jurisdiction of the court:. “Tam in aut super mari, aUt in aliquo porta, rivo,, Aqua dulcí, creca, seu, loco quocunque infra fluxum maris ad plenitude.m a quibuseunque primus pontibus verses mare, quam super littu3 maris, et alibi abicunque infra jurisdictionem nostram' maritimam, aut limites Admiralitalis Regninostri, et dominium nostrorum.” Zouch, 112, 2 Hale’s P. C. ch. 3, Lord Hale, speaking of this statute,- 28 Hen. -VIII. ch. • 15, quoting the words' which define the' locality of the jurisdiction given to the high commission court, viz. “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.” this seems to me to extend to great rivers, where the sea flows and.re-flows below the first bridges, and also in creeks of the sea at full water, where the sea flows and re-’flows, and upon high watei upon the shore, though these possibly be within the body of the county; for there at least, by thb-plalute of Rich. II. they have a jurisdiction; and thus, accordingly, it has been constantly used 'in all times, even when judges-of the common law have been named and set in their com* mission; but we are not to extend the words “pretends to have” to such a pretence.as is without any right at all, and therefore, although the adwiral pretends t.o- nave jrkisdiction upon the shore wher the water is re-flowed, yet he.hath no cognizance of -a felony committed there,” &c.. Sic. 2 Hate’s P. C. ch. 3.
      The navy mutiny act of the 22 Geo. TI. ch. 33, see. 4, thus defines the jurisdiction of a navy court martial, to wit*' “Nothing contained in the at-tides of war shall' extend or he construed to extend, to:empower, any court martial.in virtue of this act, to proceed to the punishment -or trial of any of the offences specified in the several articles, (olher than the offences specified in the 5th, 34th and 35 articles and Orders,) which shall not' be committed upon. the main sea, or in great rivers only, beneath the bridges of the said rivers nigh to the sea, or in fhe .haven, river, or creek within 
        
        thejurisdictiof of the admiralty,” &.c. In the 25th section of the act is the' following proviso: "Provided always, ■that nothing in this act shall extend, or be construed to extend, to take away from the ' Lord High Admiral of Great Britain, or the commissioners for executing the office of Lord High Admiral of Great Britain, or. any vice-admiral, or any judge or judges'of the .admiralty, or his (or their deputy or deputies, or any other officers or ministers of the admiralty, or others hav? ing or claiming any admiralty power, jurisdiction, or author rity within the realm, or any other of the king’s dominions,, or from any person or court whatsoever,' any power, right» jurisdiction, pre-eminence, q-.r authority, which he, or they» or any of them, lawfully hath» have, or- had, or ought to have and enjoy, before the making of this act, so as the same person shall not be punished twice for ths same offence.” 1 M‘Arthur on Courts Martial 174. 348. 4th Ed,
    
    
      
       De Lovio v. Boit, 2 Gallis, 398.
    
    
      
      
         In Scotland, the delegate of the high admiral, who holds the court of admiralty, “is declared to b;e the king’s justice general upon the seas, or fresh water, within flood and mark, and in all harbours and creeks,” &c. 2 Bro. Civ. and Adm. Law. 30. 490. Erskine's Institutes, 34. 10th ed. “In Scotland,(as Wclwood,a Scottish man, writes,)' the admiral and judge of the admiralty hath power within the sea-flood, over all sea-faring men, and in all sea-faring causes and debates, civil and criminal: So that no other judge of any degree may meddle therewith, but only by way of assistance, as it was found • in the action brought by Anthony dd la Tour against Christian Martens, November 6, 1542.” Zonch. 91.
      “Connoitront (les jugos de Pamiraute) paréillemerrt. des pillages- et piratenes, tions des equipages, et generalemeiit de tous . crimes et debts commis say mer,ses ports, havres, et rivages.” Ordonnance de la Marins, L. 1. t. 2.. art. 10, de la Competence, “L’amiraute eloitune veritable jurisdiction ayant le droit do glaive et consequemment de juger los personnes tant au. criminel qu’au civil, et certaines dioses qui par leur nature etoient purement maritimes, ce qui resulte $iu titfe de la competence, art. 2 et 10. Le tribunal des juges consuls jugoient les chódes commerciales; d’ou il resul;-toit que les amiraubts connois&ent de tousles protesj-aptions. et contrita: su- Vf-mUs ppflr veotéle navires na ífíages, dpsur nces, etc. et! les , tribunauX .'consulcirps de toi -i lbs actes ¿fe coiúmqrcfc pi rerpeijt mercarftile'.” ' Boucher, Brbit Mqrilir. -e. 72.7
      
    
    
      
       3 Dall. 297.
    
    
      
       The Fabius, 2 Rob. 245.
    
    
      
      
         Colony Laws, ed. 1672. title Courts, 36, 37
    
    
      
      
         2 Hawkins, ch. 9. s. 14. 2 East’s P. C. 84.
    
    
      
      
         Martin v. Hunter, 1 Wheat. 333. 337.
    
    
      
      
         M evolution upon thecases of Admiral Jurisdiction. Whitehall, . 18th February. Present, the king's most excellent majesty.
      Lord Keeper,
      Lord Ab. of York,
      ..Lord Treasurer,
      Lord Privy Seal,
      Earl Marshall,
      Lord Chamberlain,
      E arl Of Dorset,
      Earl of Carlisle,
      Earl of Holland,
      Earl of Denbigh, ‘
      Lord .Chancellor of Scotland.
      Earl of Morton,
      Lord V. Wimbleton,
      Lord V. Wentworth,
      Lord V. Falkland,
      Lord Bishop of. London,
      Lord Cottington,
      Lord Newburgh,
      Mr. Treasurer,
      Mr. Comptroller,
      Mr. Vice Chamberlain,
      Mr.. Secretary Colee.,
      Mr. Secretary Windebatik,
      
        • “This day the king being present in Council,- the articles and proposition following, for the accommodating and setting the difference concerning prohibitions, arising between bis majesty’s courts at Westminster, arid his court of admi.raity, were fully debated and .resolved by the board; and •were' then likewise, upon reading the same, as well before the judges of his majesty’s said courts at ^Westminster, as before the judge of his said court ©£ admiralty, and his attorney-general -agreed,unto, and subscribed by them all in his majestv’8 presence, vá.
      ' -‘1. If suit should be com•menced in the court of admirally upon contracts made, or other things personal done beyond the sea, or upon the. sea, no prohibition is to be awarded.
      “2. If suit be before the admiralfor freight or mariner wages, or for breach pf charter-parties, fcr wqges tc be made beyond the seas ; though the charter party happen to be made within the realm; so • as the penalty be not demanded, a prohibition is not to be granted. But if the suit be for the penalty, or-if the question be made,' whether the charter -party be made, or not; -or y. haáiér .the plaintiff did release, or otherwise discharge the same within the realm : this is to he tried in the king’s courts, and not in' the admirally.
      “3. If suit be in the court of admiralty, for building» amending, saving, or. necessary victualling of a ship, against the ship itself, and not against any party by name,.but such as.for his interest makes him— self a party ; no prohibition is tobe granted, though this be done within the realm,
      . “4. Although of some causes arising upon the Thaipes beneath the bridge, and divers other rivers beneath the first bridge, the king’s courts have cognizance; yet the admiralty hath also jurjsdiction there in the point specially mentioned in the statute of Décimo quinto Richardí r,'*undi, and also by exposition and equity thereof, he may inquire of and réckgss all annoyances and. obstructions in those rivers, that are any impediment to navigation or passage to or from the sea; and no prohibition is to be granted in such cases.
      “5. If any be imprisoned? and, upon habeas corpus brought, il'be certified, that any of these be the’ cause of his imprisonment, the party shall be remanded.
      “Subscribed 4th February, 1632, by all the judges ofboth benches.” Cro. Cur. 296, London Ed. of 1657. By Sir Harbottle Grimstone. These resolutions are inserted in the early editions of Croke's reports, but left out in the latter, seemingly ex industria. 2 Bfown's Cii>. éfJHui. Litio. 79.
    
    
      
      
         “12/& of' May, l’57o.
      “The request of the judge of the admiralty to the lord chief justice of her admiralty’s bench, and his colleagues with their answers to the same.
      “1st. Request. That after judgment or sentence given in the court of admiralty, in any catise or appeal filaáefrom the same to the high court of chancery,- it may please them to forbear tire granting of any writ of prohibition,’ either to the judge of said court or to her majesties delegates, at the sute of him by whom such appeal shall be made, seeing by choice of remedy in that way? in reason he ought to be con — 1 tented therewith, and not to be relieved any other way,
      “ Jlnswer. It is agreed by the lord chief justice and his-’ colleagues, that after sentence given in the delegates,, no prohibition shall be granted. And if there he no sentence? if a prohibition; be not. sued for within theifcext tern) following sentence in the admiralty-court or within two terms after at the farthest’, no prohibition-shall pass to the delegates.'
      “ 2d Request. That- prohibitions hereafter be not granted upon bare suggestions -or surmises, without summary examination and proof thereof, wherein it may be lawful to the judge of the admiralty, and the party defendant to have counsel, and.to plead for the stay thereof, if there shall appear cause;
      
        “Ansuier. They lia-ve agreed that the judge of the admiralty and the party defendant shall have counsel in court, and to plead to stay, if there may appeer evident cause.
      
        “3d Request. That the judge of the admiralty,, according to such an ancient- order as .bath been taken by king Edward the first and his council, and according to the letters patent of the lord admiral for the time- being, and allowed by other kings of the land .ever sitiüe, and by custom -time out of the memory of man, may have and enjoy cognition of all contracts, and other things, -rising as well beyond, as upon the, sea, without let, or próhi-bition.
      
        “Answer. This is agreed upon by the said lord chief justice, and his colleagues.
      
        «4Ih Reqiiest. That the said judges may have and enjoy the knowledge of the breach of charter-parties, made betwixt masters of ships and merchants for voyages to be made to the paits beyond, the. sea, and to be performed upon and beyond the sea, according as it hath been accustomed time out of mind,and according to the good meaning of the 32d of Henry 8 c.- l4 thouglr-the same charter- parties be made within the realm-
      
        “Answer.. This is likewise* agreed upon, for things to-be performed, either upon or beyond the sea, though the-charter party bp- made upon-the land, by the statute of the-32d of Henry 8. chop. 14.
      
        “5tk Request. That writs of corpus cum causa. be not directed to the said judge,1 in-causes of the nature aforesaid, and if any happen to -be directed, that it may, please them’to accept of the return-thareof, with the cause, and not the body,-as it hath always been accustomed,
      
        “Answer. If -any writ of this nature be directed in the causes before specified, they are content to return the hot dies again to the lord admiral’s gaol, upon -certificate of the cause to Be such, or if it be for contempt or disobedience tó the court in any such cause.” Zouck’s Jurisdiction of the Admiralty of England Asserted. 12!.
      Extract from “ The complaint of the- lord admita! of England, to- the- king’s most excellent majesty, against the Judges of the realm, concerning prohibitions granted'to-the court of admiralty, 11 February, penúltimo die Termini Hillarii, Anno 8. Jac. Regis : &c.”
      “5. To the end that the admiral jurisdiction may receive all manner of impeachment and interruption, thfe riversbeneafh the first bridge where it ebbeth and floweth, and the ports and creeks» are by the judges of the common law ¡UUrmed to be no part of the seas, nor within the admiral jurisdiction: And whereupon prohibitions are usually awarded upon actions depending. in that eourt, for contraes and other things done in those places ; notwithstanding that by -use and practice time out pf mind, the admiral court have had jurisdiction within such ports, creeks, and rivers.
      “ 7. That the agreement made anno domini 1575, between the judges of the king’s' bench and the court of admiralty for the more certain and-quiet execution of admiral jurisdiction, is not observed as-it ought to be.'” Zouch. Pre face. The last of the above articles of complaint was answered by Sir Edward Coke in the name of the common-law judges as follows-:'
      “ Answer.. The supposed agreement mentioned -in this article hath not as yet been delivered unt'p us, but having heard the' same read over before his majesty (out of a paper not subscribed with the-hand of any judge) we answer, that for so much thereof as difiereth from these answers, it is against the laws' and.sts tutes of the realm ;• and there fore the judges of the king’s ■ bench never assented .thereunto, neither doth the phrase thereof agree with the terms-of the law of the realm..”
    
    
      
      
         “At the admiralty sessions holdenat the Old Bailey in the year 1312, Jqhn Britce was tried before Lord Ellenborough, Chi ,J. for the wilful murder of .a ferry boy of the name of James Dean.
      “ Tiie evidence of the fact was extremely clear, and was fully confessed by the prisoner himself at the trial,' and the jury found him guilty. But it appeared also, that the.place in,which this murder was committed is a part of Milford Haven, nt the passage over the same, between Búlwell and the opposite shore, near the town of Milford, the passage there being about three, miles over. It was about seven or eight miles from the mouth of the river or' open, sea, and about sixteen miles below any bridges over the river: the water there, which was always perfectly salt, was generally above twenty-three feet deep, and the place was, excepting at very low tides indeed, never known to be dry. Men of war of seventy-four guns were ihen building near an inlet close by the place. In spring tides, sloops -aWd1 cutters of one hundred tons" buthon, are navigable where the body was found, which ii also nearby opposite to where men of war ride. The depu*. ty Vice Admiral of Pembroke-shire said, that he had pf lpí$ employed his water bailiffs to execute process in that part of the haven, but there was no - evidence either way, as to the . execution of the common-law process there,
      *? The court upon, this evi-, dence left the case to tbo jury, with observations as .Jo ■ the situation of the place, whether it was within the jurisdiction or not, and the jury found the prisoner guilty ; but the case was saved for theopir nionof the twelve judges.
      “ The • question was, whether the place where the mui*. der was committed was to bo considered as within the limita to which commissions granted under the statute 28 Henrv VIII. c. 1-5, for the trial of the offences therein mentioned, “committed in or upon the sea, or in any other haven, river,' creelt, or place, where the admiral or admirals have or •pretend to have power, authority or jurisdiction,” do by Jaw extend.
      “Thejudges, with the exception of‘Mr. Justice Grose, all assembled ■ on the 23d of D.ecemoer, 1812, at Lord Elleriborough’schambers, to consider this question, and they were unanimously of opinion, that the trial was properly had. and that there -was no objection to the conviction,bn the ground' of any supposed want- of jurisdiction, in the commissioners appointed by-commission, under the statute 28 Hen.'VIII. e. 15. in respect of the place where 'the offence was committed, During the discussion of this point, the construction of this statute by Lord Hale in his Pleas of the crown, was much preferred to the doctrine of Lord Coke in his Institutes, and most, if not all the judges’ seemed to think that the common law had a concurrent jurisdiction in this haven ; and in other havens, creeks and rivers in this realm.” 2 Leach'* Crown Case*, 1093. Case 353-4th ed. 1815.
    
    
      
      
         3 T. R. 348.
    
    
      
       The Exchange, 7 Cranch, 144.
    
    
      
      
         In the matter of Stacey, 10 Johns. Rep. 310.
    
    
      
       3 Dall. 297.
    
    
      
      
         2 Cranch, 406.
    
    
      
      
         4 Cranch, 443.
      
    
    
      
       1 Wheat. 9. 20.
    
    
      
      
         Reeve's Hist. Law of Ship. 45.
    
    
      
      
         Reeves, 55.
      
    
    
      
      
         Id. 57.
      
    
    
      
      
         Id. 70.
    
    
      
      
        . Chalmers' Opinions of Eminent Lawyers, 187, 193.
    
    
      
      
         Bro. Civ. & Adm. Law, 492. 2 Rob. 248.
    
   Mr. Chief Justice Marshall

'delivered thb opinion of th«r court. The question proposed by. the circuit court, which will be first considered,'is,

Whether the offence charged in this indictment was, according to the statement'of facts which accompanies the question, “within the jurisdiction' or cognizance of the circuit court of the United States for. the districhof Massachusetts ?’?

The indictment appears tó be founded on the 8th sec. of the “act for the punishment of certain crimes against the United .States.”- That section gives the courts of th>2 union cognizar ce of certain offences committed on the high sens, or in any river,, haven, basin, or bay, oiit of the jurisdiction of any particular state.

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

What thfenis the extent of jurisdiction which a state possesses ?

Weanswer, without hesitation,' the jurisdiction «C a síate is co-extensive with its territory ; jo-extensive with its legislative power. _

_ The place described is unquestionably within the origirial territory of Massachusetts!: It is then within the jurisdiction of-Massachusetts, unless that; jurisdiction has been ceded by the United States. ,

It is contended to have, been ceded by-that article in the constitution which declares, that “the' judicial power shall extend to all cases of admiralty and maritime jurisdiction.” The argument is, that the power thus granted is exclusive ; and that the murder com mitted by the prisoner is a case of admiralty and maritime j urisdiction.

Let this be admitted. . It proves the power of congress to legislate in the case; not, that pdngress has exercised that power. It has been argued,-and the argument in a favour of, as well as that against the proposition deserves great consideration, that courts of comipon law have concurrent jurisdiction with courts of admiralty, over murder committed in bays, which are inclosed parts of the sea ; and that for this reason the offence is within the jurisdiction of Massachusetts. But in construing the act of. congress, {he ' court ber lieves it to be unnecessary to.pursue the investigation which has been so, well made at the- bar -respecting the jurisdiction of these'rival coürts.

To bring the offence within the jurisdiction of the courts of the union, it must have bean committed in-a' river, &c. out of the jurisdiction of any state. It is not the offence committed, but the bay in which it is committed, which must be out of the jurisdiction, of the state. If, then, it should be true that Massachusetts Can ta^e n0 cogn^zance of"the offence.; yet, unless the place itself be out of her jurisdiction, congress has not given cognizance of that offence to its courts. If there be a common jurisdiction, the-crime .cannot be punished the courts of the union.

■Can the cession of all cases of admiralty and raaritime furisdiction be construed into a cession ofthe waters on which those cases may arise.

This is a question on which th3 court is incapable of feeling a doubt. The article which describes thejudicial power of the United States is not intended for the cession, of territory ,or of general jurisdiction. It •is obviously designed for other purposes. It is in the 8th section of the 2d article, we are to look for cessions ,of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent -ofthe legislature of the state in which the same shall be; cfor the erection of forts, magazines, arsenals, dock. yards, and'other needful buildings.

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

It is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty •and maritime jurisdiction, is in the-government of the union. Congress may pass all laws which are nec.es • sary and proper for giving the most complete effect to this power. Still, the general jurisdiction over, the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given- away. The residuary powers of legislation are still in Massachusetts. Suppose for example the power of regulating trade had not been given to the general government* Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction, have devested Massachusetts of the power to regulate the trade of her bay? Aá the powers of the respective, governments now stand, if two’ citizens of Massachusetts step into shallow water when the tide flows, and fight a duel,-are they not within the jurisdiction, and .punishable by the laws of Massachusetts'? If these ques- ' tions must be answered in the' affirmative, and we believe they must, then the bay in which this murder was committed, is not out of the jurisdiction of á state, and .the circuit court of Massachusetts is not authorized, by the section under consideration, to take cognizance of the'murder which had been committed.

It may he deemed within the scope of the question certified to this court, to inquire whether any other part of the act has given cognizance of this.murder to the circuit court of Massachusetts'?

The third section enacts, “that ifany .person or. persons shall, within any fort, arsenal, dockyard, maga- ’ zine, or in any other place, or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wPful murder,' such person or persons, on being thereof convicted, s*hall suffer death.”

Although the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war om the deck of which it was Committed,.is, it has been said, “a place wilhin'thé sole -and exclusive jurisdiction of the United States,” whose courts may ■ consequently take cognizance of the offence.

That a government which possesses the broad power of war; which “may provide and maintain a navy;” ,which “may make rules' for the government and regulation of th.e land and navel forces,” has power to punish an offence committed by a marine on board'a ship of w.ar, wherever t-hat ship may lie, is a jw&pposition never to be questioned in this court. On this section, as on the 8th, thfe inquiry respects, not the extent of the power of Congress, but the extent to. which-that power has been exercised.

\ The objects with which the word “place” is associated,.are all, in their nature,'fixed and territorial. A fort, an arsenal, a dock-yard,' a magazine, are all of this character. When the sentence proceeds with the words, “or in any other place or district of country under' the sole and exclusive 'jurisdiction of the United States;” the construction seems irresistible that, by the words “other place” was intended another place of a similar character' with those previously enumerated, and with that which follows. Congress might have omitted, in its enumeration, eotaé •-similar place within its exclusive jurisdiction ■which was not comprehended by any of the terms em* ployed to which some other name, might he given ; and, therefore, the words, “other place,” or “district of country,” were added;. But the context shows the mind of the legislature to have Been, fixed on territorial ob* jects of a similar character.

This construction's strengthened by the fact (hatv at the time of passing.this law, the United States did not possess a single.ship of war. It may, therefore, be reasonably supposed, that a provision for the punishment' of crimes'in the navy might be postponed until some provision for a navy should be made. While taking; this view of the subject, it is not entirely unworthy of remark, that afterwards, when a navy was created, ánd1. congress did not proceed to make'rules for its. regulation and governmeutj no jurisdiction is given, to the' courts of the United States, of any crime committed in a ship’of war,'wherever it miy be’ stationed. . Upon these reasons the court is ,of opinion, that a murder committed on board a ship of -war, ■ lying within the ^arbour of' Boston, is not cognizable in the circuit: court for the district Of Massachusetts ; ]¡vhich opinion is to be certified to that court.

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

Certificate accordingly.. 
      
       Ths, it is conceived, refers to the ordinary courts of the United States, proceeding according to the law of the land. The crime of murder; when committed by any officer, seaman, or marine, belonging to' any public'ship or vessel of tile U fitted States, without the territorial jurisdiction of the same, may be punished with death by the sentence ofa court martial. Act.ofl80S for the better government the rnvy, di. 187 (33,) sect. Í, art. 21. But the case at bar was not cognizable by a navy court martial, being committed within the territorial ju_ risdictioU ofthe United State»-
     
      
      
        Comyn’s Dig. Admiralty, E. Bac. Abr. Court of Admiralty, A. 2 East's Crown Law, 803.
     