18 U.S. 76 (1820), U.s. v. Wiltberger

Citation:18 U.S. 76, 5 L.Ed. 37
Case Date:February 18, 1820
Court:United States Supreme Court

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18 U.S. 76 (1820)

5 L.Ed. 37




United States Supreme Court.

February 18, 1820


THIS was an indictment for manslaughter, in the Circuit Court of Pennsylvania. The jury found the defendant guilty of the offence with which he

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stood indicted, subject 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 offence was committed, is fresh, except in very dry seasons, and the tide ebbs and flows at, and above the said place. At the mouth of the Tigris, the government of China has forts on each side of the river, where customhouse 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.

Feb. 14th.

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 offences to the Circuit Court. The act of April 30th. 1790. c. 36. for

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the punishment of certain crimes against the United States, s. 12 provides for the punishment of manslaughter committed on the high seas. [a]But it is understood

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to be objected, 1. That the civil, or Roman law, which is the admiralty code, does not recognise

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or define the offence of manslaughter. [b]To which it is answered, that Congress, having declared that

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any person convicted of manslaughter, shall be punished in the manuer provided by the act, the common law may be referred to for a definition of the offence. [c]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. [d]It is also objected, 2. 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.

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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. [e]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 cognizance of the government to whose subjects the vessel belongs. Nor does this, in the slightest degree, affect the eminent domain and sover ignty of the foreign nation over its harbours and rivers. [f]But China herself disclaims jurisdiction in such cases, and renvoys them to the forum of the offending party. [g]The offence here, being

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committed by a citizen of the United States upon another citizen, on board a merchant vessel of this

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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 offence committed on the high seas. 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. c. 36. s. 12. In answer to this objection, it is insisted, that before the adoption of the present

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constitution, the admiralty and maritime jurisdiction extended every where on tide waters below low water mark. [h]The same extension has been given to the admiralty jurisdiction under the constitution. [i]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 enclosed 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.' [j]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

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sense; as altum aequor, altissimum flumen, &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 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, as to rivers, for which we contend. [k]The case of the United States v. Bevans, [l]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 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, therefore, to inquire whether this was an offence within the admiralty jurisdiction. The only question is, whether it is within the true meaning

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of the act of Congress. [m]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. 1. The national character of the ship or vessel 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; [n]is exempt from visition 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

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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 the her sovereign; and amenable to no laws, but the laws of her sovereign, and the law of natious. 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. [o]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,...

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