is the ground of the criminal jurisdiction of the district courts; and it is given to them as district courts; and as it includes the minor crimes and offences committed on the high seas, and cognizable in the courts of admiralty under the English law, the district courts may be considered as exercising the criminal jurisdiction of a court of admiralty in those cases. The constitution of the United States declares, that the judicial power of the Union shall extend to all cases of admiralty and maritime jurisdiction; and it has been supposed (a) that the federal courts might, without any statute, and under *361 this general delegation of admiralty powers, have exercised criminal jurisdiction over maritime crimes and offences. But the courts of the United States have been reluctant to assume the exercise of any criminal jurisdiction, in admiralty cases, which was not specially conferred by an act of congress. In the case of the United States v. M' Gill, (b) the defendant was indicted and tried in the Circuit Court in Philadelphia, for murder committed on the high seas, and the jurisdiction of the court was much discussed. One of the judges observed, that he had often decided, that the federal courts had a common-law jurisdiction in criminal cases; but he considered that the crime charged (a mortal stroke having been given on the high seas, and the death in consequence of it happening on land) was not a case of admiralty and maritime jurisdiction within the meaning of the constitution, or of the English admiralty law, and the prisoner, on account of this defect of jurisdiction, was acquitted. The other judge of the court gave no opinion, whether that case was one of admiralty and maritime jurisdiction, upon the general principles of the admiralty and maritime law; and he confined himself to the eighth section of the penal act of congress of April 30th, 1790, c. 9; and the case charged was not, by that act, within the jurisdiction of the Circuit Court.

Afterwards, in the case of the United States v. Bevans, (c) the Supreme Court, on a case certified from the Massachusetts

(a) Du Ponceau on Jurisdiction, pp. 59–61.

(b) 4 Dallas, 426.

(c) 3 Wheaton, 336.

circuit, decided that even admitting that the United States had exclusive jurisdiction of all cases of admiralty and maritime jurisdiction, and admitting that a murder committed on the waters of a state where the tide ebbs and flows, was a case of admiralty and maritime jurisdiction, yet that congress had not, by the 8th section of the act of 1790, c. 9, " for the punishment of certain crimes against the United States," conferred 362 on the courts of the United States jurisdiction over *such

murder. The act confined the federal jurisdiction to murder and other crimes and offences committed on the high seas, or in any river, harbor, basin, or bay, out of the jurisdiction of any particular state; and the murder in question was committed on board of a ship of war of the United States in Boston harbor, and within the jurisdiction of Massachusetts. There was no doubt of the competency of the powers of congress to confer such a jurisdiction in the case of a crime committed on board of a ship of war of the United States, wherever the ship might be; but no such power had, to that extent, been as yet exercised by congress; and it must have followed of course, in that case, that the state courts had jurisdiction of the crime at common law, for it was committed within the territory of the state. (a) It was admitted to be a clear point, that the state courts had cognizance of crimes and offences committed upon tide waters, in the bays and harbors within their respective territorial jurisdictions. And in the case of United States v. Wiltberger, (b) it was decided, that the courts of the United States had no jurisdiction of the crime of manslaughter committed by the master upon one of the seamen, on board a

(a) In official opinions communicated to the executive government in 1812 and 1814, it was considered to be a clear point, that for grave crimes committed within the jurisdictional limits of the United States, on board national vessels of war, the trial and punishment did not belong to naval courts-martial, but to the ordinary courts of law. Opinions of the Attorneys-General, Washington, 1841, vol. i. pp. 114, 120. But the act of congress of April 23d, 1800, c. 33, "for the better government of the navy of the United States," art. 21, declared that the crime of murder, when committed by any officer, seaman, or marine, belonging to any public ship or vessel of the United States, without the territorial jurisdiction of the same, might be punished with death, by the sentence of a court-martial.

(b) 5 Wheaton, 76. See, also, the case of the United States v. Davis, 2 Sumner,

merchant vessel of the United States, lying at anchor in the River Tigris, within the empire of China, because the act of congress of the 30th of April, 1790, c. 9, sec. 12, did not reach. such a case, and was confined to the crime committed on the high seas. Upon the principle of that decision, the offender could not be judicially punished, except by the Chinese government; and it was said, upon the argument of the case, that China disclaimed the jurisdiction. The law was defective upon this point, and a remedy was provided by the act of congress of 3d of March, 1825, c. 67, sec. 5, which declared, that if any offence shall be committed on board of any vessel belonging to a citizen of the United States, while lying in a foreign port or place, by any one of the crew or a passenger, or any other person belonging to the ship, or on any other passenger, the offence shall be cognizable in the circuit courts of the 363 United States, equally as if it had been committed on board of such vessel on the high seas, provided that if the offender shall be tried, and acquitted or convicted in the foreign state, he shall not be subject to another trial here. The act provided also for the punishment of many other crimes against the United States, committed upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty jurisdiction of the United States. But the crimes in any river, bay, &c., to be cognizable, must be committed out of the jurisdiction of any particular state, except it be conspiracies to defraud insurers; and it further provided, that the act was not to deprive the state courts of jurisdiction over the same offences. As the state courts have jurisdiction of offences committed within arms of the sea, creeks, havens, basins, and bays, within the ebb and flow of the tide, and within the body of a county, the jurisdiction of the circuit courts of the United States was not extended by the statute to those cases. (a)

(a) United States v. Grush, 5 Mason's Rep. 290. In the case of the United States v. Davis & Hanlon, in the Circuit Court of the United States for the District of New York, and of the United States v. Jackson, (2 N. Y. Legal Observer, 3, 35,) it was held, that the federal courts have no jurisdiction under the act of congress of April, 1790, of the crime of larceny, committed on board of an American vessel lying in the port of Savannah, in Georgia, nor if committed within the local jurisdiction of 34

VOL. I.

It appears from these cases, that though the general cognizance of all cases of admiralty and maritime jurisdiction, as

any foreign power. It would have been otherwise if committed on board the vessel on the high seas. The acts of congress of April 30th, 1790, c. 9, and of March 3d, 1825, c. 67, are not sufficiently precise on the subject of the criminal jurisdiction of the admiralty over crimes committed on the high seas. The 8th, 9th, 10th, 11th, and 12th sections of the act of 1790, provided for the punishment of murder, robbery, and other capital and inferior offences, committed on the high seas "by any person or persons," without confining the provision specifically to American citizens, or American vessels; and yet, under that statute, it has been adjudged that robbery, committed by a foreigner on the high seas, on board of a vessel belonging exclusively to subjects of a foreign state, was not piracy within that statute, nor punishable by the courts of the United States. (United States v. Palmer, 3 Wheaton, 610, and see supra, pp. 186, 187.) By the same statute, the punishment of malicious maiming on the high seas is expressly confined to the offence committed in an American public or private vessel. Under the 9th section of the act of congress of March 3d, 1825, to provide more effectually for the punishment of certain crimes, &c., any offence, such as plundering shipwrecked property, whether below or above high water mark, is punishable as within the jurisdiction of the federal courts. United States v. Coombs, 12 Peters, 72. The 4th, 7th, and 8th sections of the act of 1825, are general as to murder, rape, and other specified crimes, and they apply, according to the terms of them, "to any person or persons," without defining the character of the vessel on board of which the crime may be committed. But the 6th section of the act of 1825, respecting robbery on the high seas, confines the jurisdiction to the offence committed on board of an American vessel, and so does the 22d section, respecting assaults with intent to commit a felony; while, on the other hand, by the 23d section, a conspiracy on the high seas to destroy any vessel with intent to injure the underwriters, is made felony, and the section is general, and applies to all persons.

It is difficult to understand exactly what was intended by this diversity of language in different sections, being general in one and specific in another, so far as those various sections have been construed or defined by judicial decisions. We may safely say, that so far as any crime committed upon the high seas, no matter by whom or where, amounts to piracy within the purview of the law of nations, there can be no doubt of the jurisdiction of the circuit courts of the United States. (See supra, pp. 186, 187.) But where the crime has not attained that "bad eminence," then the jurisdiction can only, upon proper principles, attach to crimes committed by American citizens upon the high seas, or to crimes committed in or upon an American vessel on the high seas. If the American citizen commits the crime on the high seas, on board of a foreign vessel, the personal jurisdiction over the citizen, in that case, if it exist at all, must be concurrent with the jurisdiction of the foreign government to which the vessel belongs, or by whose subjects it is owned. Under the 8th section of the act of April 30th, 1790, if an offence be committed on board of a foreign vessel by a citizen of the United States, or on board of a vessel of the United States by a foreigner, or by a citizen or foreigner on board of a piratical vessel, it is cognizable by the courts of the United States. United States v. Holmes, 5 Wheaton, 412. The act of 1825 enlarged the jurisdiction of the federal courts to offences on board of American vessels by any of the American crew, in all places and waters where the tide ebbs and flows. The act of 1835 extended the jurisdiction not only

given by the constitution, extends equally to the criminal and civil jurisdiction of the admiralty, as known to the English and maritime law when the constitution was adopted; yet that without a particular legislative provision in the case, the federal courts do not exercise criminal jurisdiction as courts of admiralty over maritime offences. In the case of the United States v. Coolidge, (a) it was insisted that the admiralty was a court

to offences on the high seas, but on any other waters within the admiralty and maritime jurisdiction of the United States. United States v. Lynch, 2 N. Y. Legal Observer, 51. United States v. Roberts, Ib. 99. In the case of the United States v. Mackenzie & Gansevoort, in the New York Circuit Court, January 11th, 1843, it was declared, that if the crimes act of March 3d, 1825, c. 276, was to be considered as giving the circuit and district courts concurrent jurisdiction with courts-martial over offences committed on board ships of war, yet that the proviso, in the 11th section, showed that the powers of courts-martial were not abrogated or suspended, and that it was doubtful whether the courts of civil jurisdiction were under the necessity of exercising their jurisdiction. The court refused, in that case, to interfere by process, and interrupt the Naval Court of Inquiry then sitting upon the case. Afterwards, the same court, on further and more elaborate discussion and consideration, declared that the Circuit Court had no jurisdiction in the case. See supra, P.

341, n. a.

The act of congress of March 3d, 1835, c. 40, sec. 1 and 2, punishes revolt and mutiny, or attempts at the same, by any of the crew of any American vessel on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, by fine and imprisonment, according to the nature and aggravation of the offence; and reduces the same from the grade of a capital offence.1 On the other hand, the act renders the master and other officers of any such vessel, at any such place, indictable, and punishable by fine and imprisonment, if, without any justifiable cause, and from malice, hatred, or revenge, they beat, wound, or imprison any of the crew, or inflict any cruel and unusual punishment upon them. See Abbott on Shipping, 5th Am. edit., Boston, 1846, pp. 246 to 253. The substance is given in the notes by the learned editor, of the several acts of congress relative to crimes and offences committed on the high seas. The principal acts on that subject are those of April 30th, 1790, c. 36, 3d March, 1825, c. 276, and March 3d, 1835, c. 40. The English law is more penal, and the statute of 11 and 12 Wm. III. c. 7, makes the crime of revolt, or endeavors to create a revolt, or to lay violent hands on his commander, piracy and robbery. Regina v. M'Gregor, 1 Carr. & Kirwan, 429. (a) 1 Gallison, 488.

1 This act embraces cases where the crew resist the master in the free and lawful exercise of his authority. Foreign seamen on board American vessels are subject to the act; and a vessel is American, if she sailed from and to an American port, and was apparently owned and controlled by citizens of the United States. The United States v. Peterson, 1 Wood. and M. R. 305. Any combination by a crew which deprives the master of the means of enforcing his authority, is an attempt to commit a revolt within the act. United States v. Nye, 2 Curtis, C, C. 225.