16 U.S. 336 (1818), U.s. v. Bevans

Citation:16 U.S. 336, 4 L.Ed. 404
Case Date:February 21, 1818
Court:United States Supreme Court

Page 336

16 U.S. 336 (1818)

4 L.Ed. 404




United States Supreme Court.

February 21, 1818


The defendant, William Bevans, was indicted for murder 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 was tried upon 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, on board the United States ship of war Independence, rated a 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, William 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 Leinstrum (the deceased, named in the indictment) was at the same time duly enlisted and in

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the service of the United States as cook's mate on board of said 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 Charlestown, 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 and beyond 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 first apprehended for the offence in the district of Massachusetts.

The jury found a verdict that the prisoner, William Bevans, was guilty of the offence as charged in the indictment.

Upon the foregoing statement of facts, which was

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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 also occurred at the trial of the prisoner. 1. Whether, upon the foregoing 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 Massachusetts, 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 for a 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 States. 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,

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in this case, then it must appear, either that the place 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 committed in a port, or harbour; and ports and harbours 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 Hale 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.' 1 By the 'main sea' Lord Hale undoubtedly means the same as is expressed by 'high sea,' 'mare altum,' or 'le haut meer.' There is a distinction between the meaning of these last terms, and the meaning of the sea. And this distinction does not consist merely in this, that is 'high sea' to low water mark only, and sea to high water mark, when the tide is full. A more obvious ground of distinction is, that the high seas import the unenclosed and open ocean, without the fauces terrae. So Lord Hale must be understood in the passage cited. Ports and 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 and harbours are, consequently, not part of the high seas. Exton, one of the distinguished advocates of the admiralty jurisdiction, sneers at the common

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lawyers, for the alleged absurdity of supposing ships to ride at anchor, or to sail, within the body of the county. The common lawyers might retort, the greater incongruity of supposing ports and harbours to be found on the high seas. 2 '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 committed in a navigable arm of the sea, the common law hath a concurrent jurisdiction.' 3 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 and harbours, on the contrary, are places of refuge, 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 similar import, are always terms of opposition.

'Insula portum Efficit objectu laterum: quibus omnis ab alto Frangitur, inque sinus scindit sese unda 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 inOwen, 4 and some other dicta. The statute 13 Richard

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II. ch. 5, allows the admiral to entertain jurisdiction of things done on the sea, 'sur le meer.' The civilians contend, that by this expression, the admiralty has jurisdiction in ports and havens, because 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, in his argument for the jurisdiction of that court, delivered in the house of lords, Sir Leoline Jenkins says: 'The admiral being a judex ordinarius, (as Bracton calls such as have their jurisdiction fixed, perpetual, and natural,) for 100 years before this statute; it shall not be intended to restrain him any further than 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.' 5 This argument evidently proceeds on the ground of an acknowledged distinction between the sae, and thehigh sea; the former including ports and harbours, the latter excluding them. Exton's comment on the same statute, 13 Richard II. ch. 5. is to the same effect. 'Here, sur le meer,' says he, 'I hope shall not be taken for super altum mare; when as the statute is so absolutely free from distinguishing

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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 portuum et locorum per costeram maris, (as hath been already showed,) as well as of the main sea.' 6 This writer is here endeavoring to establish the jurisdiction of the admiralty over ports and harbours, not as they are parts of the high sea, but as they 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 civilians 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 the same offences, when committed in ports and harbours of a particular description. This additional provision would be absurd, but upon the supposition that ports and...

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