rent power is retained by the states, because the subject-matter derives its existence from the constitution; and the authority of Congress to delegate it cannot be implied, for it is not necessary or proper in any constitutionl sense. But even if Congress could delegate it, it would still remain to be shown that it had so done. 70*] We have seen that this cannot be correctly deduced from the act of 1795; and we are, therefore, driven to decide, whether a state can, without such delegation, constitutionally assume and exercise it. It is not, however, admitted, that the laws of the United States have not enabled courtsmartial to be held under their own authority for the trial of these offenses, at least when there are militia officers acting in service in conjunction with regular troops. The 97th article of war gives an authority for the trial of militia in many cases; and the act of the 18th of April, 1814, ch. 141 (which has now expired), provided, as we have already seen, for cases where the militia was acting alone. To what extent these laws applied is not now necessary to be determined. The subject is introduced solely to prevent any conclusion that they are deemed to be wholly inapplicable. Upon the whole, I am of opinion that the courts-martial intended by the act of 1795 are not state courtsmartial, but those of the United States; and this is the same construction which has been already put upon the same act by the Supreme Court of Pennsylvania.' What, then, is the state of the case before the court? Congress, by a law, declare that the officers and privates of the militia who shall, when called forth by the President, fail to obey his orders, shall be liable to certain penalties, to be adjudged by a court-martial convened under its own authority. The legis lature of Pennsylvania inflict the same penalties 71*] for the same disobedience, and direct these penalties to be adjudged by a state courtmartial called exclusively under its own authority. The offense is created by a law of the United States, and is solely against their authority, and made punishable in a specific manner; the legislature of Pennsylvania, without the assent of the United States, insist upon being an auxiliary, nay, as the defendant contends, a principal, if not a paramount, sovereign, in its execution. This is the real state of the case; and it is said, without the slightest disrespect for the legislature of Pennsylvania, who, in passing this act, were, without question, governed by the highest motives of patriotism, public honor, and fidelity to the Union. If it has transcended its legitimate authority, it has committed an unintentional error, which it will be the first to repair, and the last to vindicate. Our duty compels us, however, to compare the legislation, and not the intention, with the standard of the constitution. It has not been denied that Congress may constitutionally delegate to its own courts exclusive jurisdiction over cases arising under its own laws. It is, too, a general principle in the construction of statutes, that where a penalty is prescribed to be recovered in a special manner, in a special court, it excludes a recovery in any other mode or court. The language is 1.-Er-parte Bolson,5 Hall's Amer. Law Journal, 476. deemed expressive of the sense of the legislature, that the jurisdiction shall be exclusive. In such a case, it is a violation of the statute for any other tribunal to assume jurisdiction. If, then, we strip the case before the court of all unnecessary appendages, it presents [*72 this point, that Congress had declared that its own courts-martial shall have exclusive jurisdiction of the offense; and the state of Pennsylvania claims a right to interfere with that exclusive jurisdiction, and to decide in its own courts upon the merits of every case of alleged delinquency. Can a more direct collision with the authority of the United States be imagined? It is an exercise of concurrent authority where the laws of Congress have constitutionally denied it. If an act of Congress be the supreme law of the land, it cannot be made more binding by an affirmative re-enactment of the same act by a state legislature. The latter must be merely inoperative and void, for it seeks to give sanction to that which already possesses the highest sanction. What are the consequences, if the state legislation in the present case be constitutional? In the first place, if the trial in the state courtmartial be on the merits, and end in a condemnation or acquittal, one of two things must follow, either that the United States courtmartial are thereby devested of their authority to try the same case, in violation of the jurisdiction confided to them by Congress; or that the delinquents are liable to be twice tried and punished for the same offense, against the manifest intent of the act of Congress, the principles of the common law, and the genius of our free government. In the next place, it is not perceived how the right of the President to pardon the offense can be effectually exerted; for if the state legislature can, as the defendant contends, by its own enactment, make it a state offense, the pardoning power of the state *can alone purge away such an offense. [*73 The President has no authority to interfere in such a case. In the next place, if the state can re-enact the same penalties, it may enact penalties substantially different for the same offense, to be adjudged in its own courts. If it possess a concurrent power of legislation, so as to make it a distinct state offense, what punishments it shall impose must depend upon its own discre tion. In the exercise of that discretion, it is not liable to the control of the United States. It may enact more severe or more mild punishments than those declared by Congress. And thus an offense originally created by the laws of the United States, and growing out of their authority, may be visited with penalties utterly incompatible with the intent of the national legislature. It may be said that state legislation cannot be thus exercised, because its concurrent power must be in subordination to that of the United States. If this be true (and it is believed to be so), then it must be upon the ground that the offense cannot be made a distinct state offense, but is exclusively created by the laws of the United States, and is to be tried and punished as Congress has directed, and not in any other manner or to any other extent. Yet the argument of the defendant's counsel might be here urged, that the state law was merely auxiliary to that of the United States; and that it sought only to enforce a public duty more effectually by other penalties, Upon the whole, with whatever reluctance, in aid of those prescribed by Congress. The I feel myself bound to declare that the clauses repugnancy of such a state law to the national of the militia *act of Pennsylvania now [*76 authority would, nevertheless, be manifest, in question, are repugnant to the constitutional 74*] since it would seek to punish an offense laws of Congress on the same subject and are created by Congress, differently from the de- utterly void; and that, therefore, the judgment clared will of Congress. And the repugnancy of the state court ought to be reversed. In this is not, in my judgment, less manifest where the opinion I have the concurrence of one of my state law undertakes to punish an offense by a brethren. state court-martial, which the law of the United States confines to the jurisdiction of a national court-martial. The present case has been illustrated in the argument of the defendant's counsel, by a reference to cases in which state courts under state laws exercise a concurrent jurisdiction over offenses created and punished by the laws of the United States. The only case of this description which has been cited at the bar, is the forgery of notes of the Bank of the United States, which by an act of Congress was punished by fine and imprisonment, and which under state laws has also been punished in some state courts, and particularly in Pennsylvania. In respect to this case, it is to be recollected that there is an express proviso in the act of Congress, that nothing in that act should be construed to deprive the state courts of their jurisdiction under the state laws over the offenses declared punishable by that act. There is no such proviso in the act of 1795, and, therefore, there is no complete analogy to support the illustration. Judgment affirmed. Cited 12 Wheat. 33; 11 Pet. 150; 12 Pet. 645; 14 Pet. 578, 592, 593; 16 Pet. 618, 654; 5 How. 313, 584, 607, 625; 7 How. 60, 77, 394, 498, 555, 556; 12 How. 319; 17 How. 515; 3 Wall. 730; 3 Otto, 141; 1 Wood. & M. 70, Blatchf. & H. 251; 5 Blatchf. 79; 7 Bank. Reg. 425, 373, 430, 42, 439; 2 Story, 466; 1 Abb. U. S. 45; 499; 17 Bank. Reg. 197; 2 Paine, 308; 3 Cliff. 386, 560. [CONSTITUTIONAL LAW.] THE UNITED STATES v. WILTBERGER. The courts of the United States have no jurisdiction, under the act of April 30th, 1790, c. 36, of the crime of manslaughter, committed by the master upon one of the seamen on board a merchant vessel of the United States, lying in the River Tigris, in the empire of China, 35 miles above its mouth, off Wampoa,about 100 yards from the shore, in four and a half fathoms water, and below low watermark. Though penal laws are to be construed strictly, yet the intention of the legislature must govern in That there are cases in which an offense par- the construction of penal, as well as other statutes, ticularly aimed against the laws or authority of and they are not to be construed so strictly as to the United States may, at the same time, be defeat the obvious intention of the legislature. In the act of April 30th, 1790, c. 36, the description directed against state authority also, and thus of places contained in the 8th section, within which 75*] be within the *legitimate reach of state the offenses therein enumerated must be commitlegislation, in the absence of national legislated, in order to give the courts of the Union juristion on the same subject, I pretend not to af- 12th section, so as to give those courts jurisdiction diction over them, cannot be transferred to the firm, or to deny. It will be sufficient to meet over a manslaughter committed in the river of a such a case when it shall arise. But that an foreign country, and not on the high seas. offense against the constitutional authority of HIS was an indictment for manslaughter, the United States can, after the national legis-Tin the Circuit Court of Pennsylvania. The lature has provided for its trial and punishment, be cognizable in a state court, in virtue of a state law creating a like offense, and defining its punishment, without the consent of Congress, I am very far from being ready to admit. It seems to me that such an exercise of state authority is completely open to the great objections which are presented in the case before us. Take the case of a capital offense, as, for instance, treason against the United States: can a state legislature vest its own courts with jurisdiction over such an offense, and punish it either capitally or otherwise? Can the national courts be ousted of their jurisdiction by a trial of the offender in a state court? Would an acquittal in a state court be a good bar upon an indictment for the offense in the national courts? Can the offender, against the letter of the constitution of the United States, be subject for the same offense, to be twice put in jeopardy of life or limb?" These are questions which, it seems to me, are exceedingly difficult to answer in the affirmative. The case, then, put by the defendant's counsel, clears away none of the embarrassments which surround their construction of the case at the bar of the court. 1. See White v. Commonwealth, 4 Binn. Rep. 418; Livingston v. Van Ingen, 9 Johns. Rep. 507, 567. jury found the defendant guilty of the offense with which he stood indicted, subject [*77 to the opinion of the court, whether this court has jurisdiction of the case, which was as follows: The manslaughter charged in the indictment was committed by the defendant on board of the American ship the Benjamin Rush, on a seaman belonging to the said ship, whereof the defendant was master, in the River Tigris, in the empire of China, off Wampoa, and about 100 yards from the shore, in four and a half fathoms water, and below the low water-mark, thirty-five miles above the mouth of the river. The water at the said place where the offense was committed is fresh, except in very dry seasons, and the tide ebbs and flows at, and Under the United States statute of 30th April, 1790, c. 9, s. 8, the "high seas" mean any waters on the sea-coast which are without the boundaries of low water-mark. U. S. v. Ross, 1 Gallis. 624; U. S. v. Hamilton, 1 Mason, 152. A vessel lying outside of the bar of a harbor of the United States, within three miles of shore, is on the high seas. U. S. v. Smith, 1 Mason, 147. So, a foreign open roadstead is upon the "high seas," within the above section. above the said place. At the mouth of the Tigris, the government of China has forts on each side of the river, where custom-house officers are taken in by foreign vessels to prevent smuggling. The river at the mouth, and at Wampoa, is about half a mile in breadth. And thereupon, the opinions of the judges of the Circuit Court, being opposed as to the jurisdiction of the court, the question was by them stated, and directed to be certified to this court. Mr. C. J. Ingersoll, for the United States, argued, that by the constitution the judicial power extends to all cases of admiralty and maritime jurisdiction, and Congress is invested with authority to define and punish piracies and other felonies committed on the high seas. The judiciary act of 1789, c. 20, s. 11, gives jurisdiction over these offenses to the Circuit Court. 78*] The act of April 30th, 1790, c. 36, for *the punishment of certain crimes against the United States, s. 12, provides for the punishment of manslaughter committed on the high seas.1 1.-The sections of this act commented on in the argument, are as follows: SEC. I. That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. SEC. II. And be it enacted, That if any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal, and not, as soon as may be, disclose and make known the same to the President of the United States, or some of the judges thereof, or to the President or Governor of a particular state, or some one of the judges or justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars. SEC. III. And be it enacted, That if any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons, on being thereof convicted, shall suffer death. SEC. VI. And be it enacted, That if any person or persons, having knowledge of the actual com U. S. v. Pirates, post. 184. To give jurisdiction to the United States courts, it is the river, haven, bay, &c., and not the offense, which must be out of the jurisdiction of the state. U. S. v. Bevans, 3 Wheat. 336. The words "out of the jurisdiction of any particular state" refer to the states of the Union. U. S. v. Pirates, post. 184. The courts of the United States have jurisdiction under the act of April 30, 1790, of a murder committed on the high seas, although not committed on board a vessel of the United States, but a vessel held by pirates or persons not sailing under the flag of any nation. U. S. v. Holmes, post. 412; U. S. v. Klintock, post. 144; 1 Wash. C. C. 463; 5 Mason, 28; 4 Mason, 505; 1 Gallis. 62. Under the statute of 1790, ch. 36, to give the United States courts jurisdiction of the crime of murder, not only the stroke, but the death must happen on the high seas. U. S. v. McGill, 1 Wash. C. C. 463; 4 Dall. 426. The state courts have jurisdiction of offenses committed on the arms of the sea, creeks, havens, basins and bays, within the ebb and flow of the tide, when those places are within the body of a county, in such cases the circuit courts of the United States have no jurisdiction under the act of 1825. U. S. v. Grash, 5 Mason, 290. An offense committed within the mouth of a | But it is understood *to be objected, 1. [*79 That the civil, or Roman law, which is the admiralty code, does not recognize *or de- [*80 fine the offense of manslaughter. To which it is answered, that Congress, having declared that any person convicted of man- [*81 slaughter shall be punished in the manner provided by the act, the common law may be referred to for a definition of the offense. Neither robbery, murder, mayhem, nor many other offenses, made punishable by the statute laws of the United States, are defined by those laws. The distinctions of homicide, as marked out by the common law, are unknown to the civil or Roman law. But when jurisdiction is given of murder committed on the high seas, &c., to a court of admiralty, the law defining the crime is to be derived from the common, and not from the civil law. It is also objected, 2.-1 Bro. Civ. and Adm. Law, 422; 2 Bro. 460. 3.-The United States v. Palmer, 3 Wheat. 626. 4. The United States v. M'Gill, 4 Dall. 426, 429. mission of the crime of willful murder, or other felony, upon the high seas, or within any fort, arsenal, dock-yard, magazine, or other place or district of country, under the sole and exclusive jurisdiction of the United States, shall conceal, and not, as soon as may be, disclose and make known the same to some one of the judges, or other persons in civil or military authority under the United States, on conviction thereof, such person or persons shall be adjudged guilty of misprision of felony, and shall be imprisoned not exceeding three years, and fined not exceeding five hundred dollars. SEC. VII. And be it enacted, That if any person or persons shall, within any fort, arsenal, dockyard, magazine, or other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of manslaughter, and shall be thereof convicted, such person or persons shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars. SEC. VIII. And be it enacted, That if any person or persons shall commit, upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offense, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or, if any captain or mariner of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or merchandise, to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, thereby to foreign river, a mile and a half wide, is within the act of Congress. U. S. v. Smith, 3 Wash. C. C. 78; note. The act of 1790 does not authorize the United States courts to convict for larceny committed on a vessel lying in a foreign_barbor, although where the tide ebbs and flows. U. S. v. Jackson, 2 N. Y. Leg. Obs. 3. Nor for larceny committed on ship lying in a port of one of the United States, although the property was carried on the high seas to another port. U. S. v. Davis, 2 N. Y. Leg. Obs. 35. The act of 1835 differs from the crimes act of 1790. Under the act of 1835, if the offense is committed on the high seas, or any other waters within the admiralty and maritime jurisdiction of the United States, the court has jurisdiction. In the act of 1790, the offense must have been committed in a place under the sole and exclusive jurisdiction of the United States, out of the jurisdiction of any particular state. U. S. v. Lynch, 2 N. Y. Leg. Obs. 51. Penal statutes to be strictly construed; never extended by implication. Andrews v. U. S., 2 Story, C. C. 202; Ferret v. Atwill, 1 Blatchf. 151; S. C. 4 N. Y. Leg. Obs. 215; U. S. v. Starr, Hempst. 469; The Enterprise, 1 Paine, 32; 4 Am. Law Journ. 115. 1820 2. That the local jurisdiction of the Chinese empire over the offense charged by the indictment, if found by the jury to have been committed within its territorial limits, necessarily excludes the jurisdiction of the courts of this 82*] country over the offense. *To this objection, it is answered, that by the principles of universal law, a qualified national jurisdiction and immunity extends to the ships of the nation, public and private, wherever they may be. As to public vessels, this immunity is unquestionable. And even private vessels, though from the necessity of the case, subject to the hinder and prevent his fighting in defense of his ship, or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed taken, and adjudged to be, a pirate and felon, and being thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought. SEC. IX. And be it enacted, That if any citizen shall commit any piracy or robbery, aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign prince or state, or on pretense of authority from any person, such offender shall, notwithstanding the pretense of authority, be deemed, adjudged, and taken to be, a pirate, felon, and robber, and on being thereof convicted, shall suffer death. 81 revenue laws of the country where they may 2.-2 Bro. Civ. & Adm. Law, 468, 484; M'Gill's Case, 4 Dall. 427; United States v. Ross, 1 Gallis. 627; United States v. Smith, 1 Mason, 147; United States v. Hamilton, 1 Mason, 152. 3. Sir George Staunton's Translation of the Laws of China, 36, 523. The following extracts from this work were read at the argument, and it is thought learned reader: their insertion here will not be unacceptable to the "Offenses committed by foreigners.(*) In gento the government of the empire, shall, when guilty eral all foreigners who come to submit themselves of offenses, be tried and sentenced according to the established laws. The particular decisions, however, of the tribunal Lee-Fan-Yuen,(+) shall be guided according to regulations framed for the government of the Mongol tribes. Note (*)-"This section of the code has been expressly quoted by the provincial government of Canton, and applied to the case of foreigners residing there and at Macao for the purposes of trade. The laws of China have never, however, been attempted to be enforced against those foreigners, except with considerable allowances in their favor, although, on the other hand, they are restricted and circumscribed in such a manner that a translaws can scarcely occur; at least, not without at the same time implicating and involving in their guilt some of the natives, who thus in most cases become the principal victims of offended justice. no means so satisfactory on the whole as might be The situation of Europeans in China is certainly by desired, or even as it may be reasonably expected to become in the progress of time, unless some ungradual course of improvement. It must be adInanners, habits, and language, renders some such mitted, however, that the extreme contrariety of arrangement, as that now subsisting for the regulation of the intercourse between the Europeans and the natives, absolutely indispensable, as well as conducive to the interests of both parties. SEC. X. And be it enacted, That every person who shall, either upon the land or seas, knowingly and wittingly aid and assist, procure, command, counsel or advise, any person or persons to do or commit any murder or robbery, or other piracy aforesaid, upon the high seas, which shall affect the life of such person, and such person or persons shall thereupon do or commit any such piracy or robbery, then all and every such person, so as afore-gression on their part of any specific article of the said, aiding, assisting, procuring, commanding counseling, or advising the same, either upon the land or the sea, shall be and they are hereby declared, deemed, and adjudged to be, accessory to such piracies before the fact, and every such person, being thereof convicted, shall suffer death. SEC. XI. And be it enacted, That after any murder, felony, robbery, or other piracy whatsoever, aforesaid, is or shall be committed by any pirate or robber, every person who, knowing that such pirate or robber has done or committed any such piracy or robbery, shall, on the land or at sea, receive, entertain, or conceal, any such pirate or robber, or receive or take into his custody any ship, vessel, goods, or chattels, which have been, by any such pirate or robber, piratically and feloniously taken, shall be, and are hereby declared, deemed and adjudged, to be accessary to such piracy or robbery, after the fact; and on conviction thereof, shall be imprisoned, not exceeding three years, and fined, not exceeding five hundred dollars. toward circumstance should occur to check the Note (+)-This tribunal might be styled the office or department for foreign affairs, but its chief concern is with the tributary and the subject states of Tartary." P. 36. The foregoing being the substance of the rehave deliberated thereon, and have ascertained port of the viceroy to his imperial majesty, we that, according to the preliminary book of the penal code, all persons from foreign parts committence according to the laws of the empire. Moreting offenses, shall undergo trial, and receive senover, we find it declared in the same code, that any person accidentally killing another, shall be allowed to redeem himself from punishment, by the payyear of Kien-Lung (1743), it was ordered, in reply ment of a fine; lastly, we find, that on the eighth SEC. XII. And be it enacted, That if any seaman or other person shall commit manslaughter upon the high seas, or confederate, or attempt or endeavor to corrupt any commander, master, officer or mariner, to yield up or to run away with any ship or vessel, or with any goods, wares, or merchandise, or to turn pirate, or to go over to or confederate with pirates, or in any wise trade with any pirate, knowing him to be such, or shall furnish such pirate with any ammunition, stores, or provisions of any kind; or shall fit out any vessel, knowingly, and with a design to trade with or sup-to the address of the viceroy of Canton, then in ply or correspond with any pirate or robber upon the seas; or if any persons shall any ways consult, combine, confederate, or correspond with any pirate or robber on the seas, knowing him to be guilty of any such piracy or robbery; or if any seaman shall confine the master of any ship or other vessel, or endeavor to make revolt in such ship; such person or persons, so offending, and being thereof convicted, shall be imprisoned, not exceeding three years, and fined, not exceeding one thousand dollars. 1.-Vattel, L. 1, c. 19, s. 216; The Exchange, 7 Cranch, 116; Case of Nash alias Robbins, Bee's Adm. Rep. 266; vide Appendix, Note I. office, that thenceforward, in all cases of offenses by contrivance, design, or in affrays happening between foreigners and natives, whereby such foreigners are liable, according to law, to suffer death by being strangled or beheaded, the magistrate of the district shall receive the proofs and evidence thereof, at the period of the preliminary investigation, and after having fully and distinctly inquired sult to the viceroy and sub-viceroy, who are thereinto the reality of the circumstances, report the reupon strictly to repeat and revise the investigation. If the determination of the inferior courts, upon the alleged facts, and upon the application of the laws, is found to have been just and accurate, the 39 66 States upon another citizen, on board a mer84*] chant vessel of this *country, lying in the waters of a foreign country, which expressly disclaims jurisdiction of the case, it is dispunishable, unless it be punishable in the courts of this country; and it appears at least questionable whether there is any constitutional power in Congress to punish it, except in the mode already provided for, as an offense committed on the high seas. This brings us to the 3d objection, which is, that the offense was not committed on the high seas," within the true intent and meaning of the act of April, 1790, c. 36, s. 12. In answer to this objection, it is insisted, that before the adoption of the 85*] present constitution, the admiralty and maritime jurisdiction extended everywhere on tide waters below low water-mark. The same extension has been given to the admiralty juris diction under the constitution. The opposite argument is founded on the expression high seas," as contradistinguished from that portion of the sea where the tide ebbs and flows, but which is inclosed by head lands, or forms parts of rivers above their mouths. But the celebrated statutes of Richard II., regulating the admiralty jurisdiction, allow the admiral to have cognizance of things done on the sea, "sur le meer," without the addition of high. The stat. 27 Eliz. uses the expression "main sea. The 28 Hen. VIII., c. 15, concerning the trial of crimes committed within the admiralty jurisdiction, uses the terms, "in and upon the sea, or in any other haven, creek, river, or place, where the admiral hath, or pretends to have, power, authority, or jurisdiction." The act of Congress of 1790, c. 9, uses the terms promiscuously, "high seas" (s. 8. s. 9), "the seas (s. 10), the sea (s. 11), "high seas and seas (s. 12). The term sea is water, as contradistinguished from land. The term "high sea" does not necessarily import deep sea; although the classical writers frequently use the correspondent Latin word in that figurative 86*1*sense; as altum æquor, altissimum flumen, &c. It is a common expletive applied, in both crime," and many other things. The contrary acceptation | of the term "high sea," would exclude bays, arms of the sea, coves, belts, straits, estuaries, great rivers, and lakes. There is no other limit to the sea, but that where the tide ceases to ebb and flow, whether on the sea-coast or in bays and rivers. Even the English statutes of Richard II., made to restrict the admiralty jurisdiction, and in derogation of its ancient authority, give it cognizance of murders, &c., committed on board great ships in the streams of great rivers below the first bridges. So the French law gives the admiralty the same jurisdiction, languages, to "sea, "road," as to rivers, for which we contend. The case of the United States v. Bevans' does not stand in our way, for the point now in question was not determined in that case. Mr. Sergeant, contra, stated, that the indictment in this case, pursuing the words of the act, charges the offense to have been committed upon the "high seas." It is of no consequence what may be the extent of the power given by the constitution to the government of the Union. The question is, to what extent has the power so given been exercised? It is not necessary, therefore, to enquire whether this was an offense within the admiralty jurisdiction. The only question is, whether it is within the true meaning of the act of Congress. The [*87 offense in question, if committed at all, was not committed upon the high seas; whether these terms be considered in their ordinary sense, as used in foreign authorities of the law; as employed in acts of Congress; as used in the act in question; or as expounded by our own judicial decisions. 1. The national character of the ship or vessel in which the offense was committed makes no difference in this case. A public armed vessel is a part of the national sovereign force, clothed with the sovereign character, and, wherever she goes, entitled to immunity. She is subject only to the jurisdiction of her sovereign, and is a part of his territory; is exempt from visitation and search, and governed by such laws as her sovereign may choose to give her. The immunity she enjoys does not depend upon the civil or admiralty law; but, like the privilege of an ambassador, or the immunity of troops on their passage, depends upon the law of nations. Every sovereign may refuse admission, but having admitted, is bound to respect. Still, it does not follow that the courts of her own country have jurisdiction on board of her. Be this as it may, a private ship has no such immunity. On the ocean she is bound to submit to visitation and search. In port she is bound to submit to the local jurisdiction, and entitled to the benefit of the laws of the place. Those who are on board of her incur the obligation *of a temporary allegiance, and are, in [*88 all respects, amenable to the laws of the country in which they are found; to its penal laws especially. The ocean, the high seas, are a common domain; and every ship, private as well as public, is there upon the territory of her sovereign, and amenable to no laws but the laws of her sovereign and the law of nations. It is from this principle that every nation derives its jurisdiction over the persons on board its ships; the spot they occupy in the common domain is its own territory, and it has a right to give the law to it. 2. The na The Sally, 2 Cranch, 406; The Betsey and Charlotte, 4 Cranch, 443; The Samuel, 1 Wheat. 9; The Octavia, Ib. 20. 3. See The King v. Bruce, cited 3 Wheat. 371, note 1. 4.-1 Valin, Com. sur l'Ordon., liv. 1, tit. 2; De la Competence, art. 5. 5.-3 Wheat. 336. 6. The United States v. Bevans, 3 Wheat. 336, 386. 7. The Exchange, 7 Cranch, 116; Speech of Mr. (now Chief Justice) Marshall, in the case of Nash alias Robbins, Appendix, note I. 8.-1 Sir L. Jenkins's Works, 91. |