United States v. Wiltberger. provided by the act, the common law may be referred to, for a definition of the offence. United States v. Palmer, 3 Wheat. 626. Neither robbery, murder, mayhem nor many other offences, made punishable by the statute laws of the United States, are defined by those laws. The distinctions of homicide, as marked out by the common law, are unknown to the civil or Roman law. But when jurisdiction is given, of murder committed on the high seas, &c., to a court of admiralty, the law defining the crime is to be derived from the common, and not from the civil law. United States v. McGill, 4 Dall. 426, 429. 2. It is also objected, that the local jurisdiction of the Chinese empire over the offence charged by the indictment, if found by the jury to have been committed within its territorial limits, necessarily excludes the jurisdiction of the courts of this country over the offence. *To this [*82 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. Vattel, lib. 1, c. 19, § 216; The Exchange, 7 Cranch 116; Case of Nash, alias Robins, Bee 266. (a) And even private vessels, though from the necessity of the case, subject to the revenue laws of the country where they may be, are yet, in many respects, exempted from the local jurisdiction. Minor crimes, which do not offend the safety or dignity of the local sovereignty, are usually left to the cognisance of the government to whose subjects the vessel belongs. Nor does this, in the slightest degree, affect the eminent domain and sov do or commit any such piracy or robbery, then all and every such person, so as aforesaid aiding, assisting, procuring, commanding, counselling or advising the same, either upon the land or the sea, shall be, and they are hereby declared, deemed and adjudged to be, accessory to such piracies before the fact, and every such person, being thereof convicted, shall suffer death. § 11. 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 accessory 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. § 12. 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 supply or correspond with any pirate or robber upon the seas; or if any persons shall any ways consult, combine, confederate or correspond with any pirate or robber on the seas, knowing him to be guilty of any such piracy or robbery; or if any seaman shall confine the master of any ship or other vessel, or 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. (a) See Appendix, Note I. United States v. Wiltberger. ereignty of the foreign nation over its harbors and rivers. 2 Bro. Civ. & Adm. Law 468, 484; Mc Gill's Case, 4 Dall. 427; United States v. Ross, 1 Gallis. 627; United States v. Smith, 1 Mason 147; United States v. Hamilton, Ibid. 152. But China herself disclaims jurisdiction in such cases, and renvoys them to the forum of the offending party. (a) The offence, *83] here, being *committed by a citizen of the United States upon another *84] citizen, on board a merchant vessel of this *country, lying in the waters of a foreign country, which expressly disclaims jurisdiction of the case, it is dispunishable, unless it be punishable in the courts of this (a) Sir George Staunton's Translation of the Laws of China 36, 523. The following extracts from this work were read at the argument, and it is thought their insertion here will not be unacceptable to the learned reader: "Offences committed by foreigners. In general, all foreigners who come to submit themselves to the government of the empire, shall, when guilty of offences, 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. "The foregoing, being the substance of the report of the viceroy to his imperial majesty, we have deliberated thereon, and have ascertained that, according to the preliminary book of the penal code, all persons from foreign parts committing offences, shall undergo trial, and receive sentence according to the laws of the empire: moreover, we find it declared in the same code, that any person accidentally killing another, shall be allowed to redeem himself from punishment, by the payment of a fine; lastly, we find, that on the eighth year of Kien-Lung (1743) it was ordered, in reply to the address of the viceroy of Canton, then in office, that thenceforward, in all cases of offences by contrivance, design, or in affrays happening between foreigners and natives, whereby such foreigners are liable, according to law, to suffer death by being strangied 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 into the reality of the circumstances, report the result to the viceroy and subviceroy, who are thereupon 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 magistrate of the district shall, lastly, receive orders to proceed, in conjunction with the chief of the nation, to take the offender to execution, according to his sentence. "In all other instances of offences committed under what the laws declare to be palliating circumstances, and which are, therefore, not capitally punishable, the offender shall be sent away to be punished in his own country. February 1808.” p. 523. 1 "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 trangression on their part of any specific article of the laws, can scarcely occur; at least, not without at the same time implica ting and involving in their guilt some of the natives, who thus, in most cases, become the principal victims of offended justice. The situation of Europeans in China is certainly by no means so satisfactory, on the whole, as might be desired, or even as it may be reasonably expected to become, in the progress of time, unless some untoward circumstance should occur to check the gradual course of improvement. It must be admitted, however, that the extreme contrariety of manners, habits and language, renders some such arrangement, as that now subsisting for the regulation of the intercourse between the Europeans and the natives, abso. lutely indispensable, as well as conducive to the interests of both parties. * 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. United States v. Wiltberger. country; and it appears, at least, questionable, whether there is any consti tutional power in congress to punish it, except in the mode already provided for, as an offence committed on the high seas. 3. This brings us to the 3d objection, which is, that the offence was not committed "on the high seas," within the true intent and meaning of the act of April 1790, § 12. In answer to this objection, it is insisted, that before the adoption of the present *constitution, the admiralty and [*85 maritime jurisdiction extended everywhere on tide waters below lowwater mark. (a) The same extension has been given to the admiralty jurisdiction under the constitution. United States v. La Vengeance, 3 Dall. 297; The Sally, 2 Cranch 406; The Betsey and Charlotte, 4 Ibid. 443; The Samuel, 1 Wheat. 9; The Octavia, Ibid. 20. 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 cognisance 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."(b) The act of congress of 1790, c. 9, uses the terms promiscuously, "high seas" (§§ 8, 9), "the seas" (§ 10), "the sea" (§ 11), "high seas and seas" (§ 12). The term "sea" is water, as contradistinguished from land. The term "high sea," does not necessarily import deep sea; although the classical writers frequently use the correspondent Latin word in that figurative *sense; as altum æquor, altissimum flumen, [*86 &c. It is a common expletive applied, in both languages, to “ sea," "road," "crime," and many other things. The contrary acceptation of the term "high sea," would exclude bays, arms of the sea, coves, belts, straits, estuaries, great rivers and lakes. There is no other limit to the sea, but that where the tide ceases to ebb and flow, whether on the sea-coast, or in bays and rivers. Even the English statutes of Richard II., made to restrict the admiralty jurisdiction, and in derogation of its ancient authority, give it cognisance of murders, &c., committed on board great ships, in the streams of great rivers, below the first bridges. So, the French law gives the admiralty the same jurisdiction, as to rivers, for which we contend. 1 Valin, sur l'Ordon. liv. 1, tit. 2, De la Competence, art. 5. The case of the United States v. Bevans, 3 Wheat. 336, does not stand in our way, for the point now in question was not determined in that case. Sergeant, contrà, stated, that the indictment in this case, pursuing the words of the act, charges the offence to have been committed upon the "high seas." It is of no consequence, what may be the extent of the power given by the constitution to the government of the Union. The question is, to what extent has the power so given been exercised? It is not necessary, (a) See authorities cited 3 Wheat. 357, note b, to United States v. Bevans; De Lovio v. Boit, 2 Gallis. 470, note 47. (b) See The King v. Bruce, cited in 3 Wheat. 371, note. United States v. Wiltberger. therefore, to inquire, whether this was an offence within the admiralty jurisdiction. The only question is, whether it is within the true meaning, *87] *of the act of congress. United States v. Bevans, 3 Wheat. 336, 386. The offence in question, if committed at all, was not committed upon the high seas whether these terms be considered in their ordinary sense; as used in foreign authorities of the law; as employed in acts of congress; as used in the act in question; or as expounded by our own judicial decisions. the 1. The national character of the ship or vesssel in which the offence was committed, makes no difference in this case. A public armed vessel is a part of the national sovereign force, clothed with the sovereign character, and wherever she goes, entitled to immunity. She is subject only to the jurisdiction of her sovereign, and is a part of his territory ;(a) 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 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 *88] *of a temporary allegiance, and are, in all respects, amenable, to the laws of the country in which they are found; to its penal laws, especially. The ocean, the high seas, are a common domain; and every ship, private as well as public, is there upon the territory 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. 1 Sir L. Jenkins' Works 91. 2. The national character of the offender, or of the person offended, makes no difference. If the crew had all shipped in England, and been English subjects, they would have been equally entitled to protection, and equally amenable to our laws. If, upon the ocean, or high seas, a foreigner had been murdered, his death would have been equally avenged by our laws. If a foreigner on board this ship, had committed an offence, he would equally have been liable. It is not correct, then, to say, that personal jurisdiction is universal, as to citizens; nor that it does in no case extend to foreigners. 3. In the next place, the extent or true nature of the constitutional power is wholly immaterial in this case. That instrument had in view, 1st. To partition powers between the Union and the states; 2d. To distribute powers among the different branches of the national government. The judicial power, in its exercise, is subordinate and auxiliary to the power of congress. The whole *jurisdiction has never been exercised. But the principle, in its application to the very case, has been decided in *89] (a) The Exchange, 7 Cranch 116; Speech of Mr. (now Chief Justice) Marshall, in the case of Nash alias Robins, Appendix, Note I. United States v. Wiltberger. the case of the United States v. Bevans, 3 Wheat. 336, 386. It follows, therefore, that the judicial authority is of no avail, unless there be a corresponding power in congress; that as the judicial authority is unavailing without a legislative act, it is to the act of congress alone we must look for the extent of the jurisdiction. When, therefore, the authority of the judiciary is declared to extend to all cases of "admiralty and maritime jurisdiction," it is to be extended only to such cases as congress have power to provide for. The same power might be exercised through the medium of the state courts, or omitted altogether. It follows, also, most indubitably, that the powers exercised by congress, can receive no illustration from the powers given to the judiciary by the constitution; and we are thus happily relieved from the necessity of exploring the distant speculation of the ancient jurisdiction of the admiralty. 4. What, then, is the true meaning of the terms, on the "high seas," as used in the act of congress? In their ordinary sense, they mean the open ocean, as distinguished from creeks, rivers, ports and other bodies of water, inclosed and intra-territorial. The flow of the tide cannot be the true test; for then the sea would flow to the falls of Schuylkill and Delaware, and would comprehend a vessel moored at the wharf. If we refer to the authorities *of the English law, they are clear and uniform. The common lawyers never, at any period, denied the admiralty jurisdiction upon [*90 the "high seas." The civilians claimed a jurisdiction beyond what was conceded to them by the common lawyers, beyond the "high seas;" in rivers, bays, &c. Thus, the very contest, in its origin, admitted that the "high seas were distinguishable from other waters. The statute 13 Richard II. confined the admiralty to things done upon the "sea." 4 Inst. 136. The 15 Richard II. gave it criminal jurisdiction in homic de and mayhem on great rivers, &c. Ibid. 137. The 27 Eliz., c. 11, is conclusive of the question. Ibid. Sir Leoline Jenkins makes the distinction exp:es ly. 1 Life of Sir L. Jenkins 77. So also, we have the authority of Lord HALE in many places; Hale, De Jure Maris, ch. 4; 2 East P. C. 304; 2 Hale, H. P. C., ch. 3; and all the authorities agree, that the divisum imperium is only upon. the sea-coast. The distinction is also perfectly understood and maintained in our own legislation; and the act now in ques on furnishes the clearest recognition of it, as will appear by a comparison of the 8th with the 12th section. In the 8th section, the distinction is made between the "high seas," and "a river, haven, basin or bay." The latter expressions can never, by any fair rule of construction applied to pena! sta utes. be transferred from the 8th to the 12th section. In criminal cases, a strict construction is always to be preferred; and if there be *doubt, that is, of itself, con clusive. In Bevan's case, the distinction between the high seas and [*91 other inclosed parts of the sea, was not dened by the counsel for the United States, and the court do not even mention it as at all doubtful. 3 Wheat. 336. But it is asked, whether the criminal jurisdiction of the admiralty is not as extensive as the civil? To which it is answered, that the criminal jurisdiction depends upon the place where the offence is committed; the civil, upon the nature of the subject; and there can, therefore, be no comparison of their extent. The Attorney-General, in reply, insisted, that although penal laws are to |