United States v. Rodgers/Dissent Brown
Mr. Justice BROWN dissenting.

I am, also, constrained to dissent from the opinion of the court in this case, which appears to me to inaugurate a wholly new departure in the direction of extending the jurisdiction of the federal courts. It is a matter of regret to me that this departure should be made in a case in which the defendant was represented neither by brief nor oral argument,-a fact which suggests, at least, an unusual decree of caution in dealing with the question involved.

I had supposed that in criminal cases the accused was entitled to the benefit of any reasonable doubt, not only with regard to the evidence of guilt, but with regard to the jurisdiction of the court,-in other words, that penal statutes should be construed strictly,-and that the facts that the supreme court of Michigan, in a very carefully considered case, some 30 years ago, (People v. Tyler, 7 Mich. 161,) had decided that the criminal jurisdiction of the federal courts did not extend to the lakes; that the same question had been decided the same way by Judge Wilkins in Miller's Case, Brown, Adm. 156; that the federal courts upon the lakes had uniformly acquiesced in these decisions; and that no case is reported to the contrary, would, of itself, make a case of reasonable doubt, to the benefit of which the prisoner would be entitled.

I fully concur in all that has been stated in the opinion of the court with regard to the magnitude of the commerce upon the lakes, and, if that question were pertinent here, it would doubtless be controlling. Having lived for 30 years within sight of this commerce, it would ill become me to depreciate its importance; but it occurs to me that, if this were a consideration at all, it would be equally applicable to our jurisdiction over the Hudson, the Ohio, and the Mississippi, upon all of which the commerce is of great magnitude. I had assumed that the question at issue involved simply the construction of a statute, and not the magnitude of the commerce upon the lakes.

My own views on this question were so fully set forth in the Case of Byers, 32 Fed. Rep. 404, that I can add but little to what was there said. Rev. St. § 5346, under which this indictment was framed, limits the jurisdiction of the district court to 'cases arising 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, and out of the jurisdiction of any particular state.'

The first question which arises, then, is as to whether the lakes are 'high seas,' and as to that I had supposed, until reading the opinion of the court in this case, there could be but one answer.

The term 'high seas' has never been regarded by any public writer, or held by any court, to be applicable to territorial waters, and, like the word 'highways,' presupposes the right of the public to make free use of them, and excludes the idea of private ownership. Of the sea, Lord Hale says, (De Jure Mar. c. 4:) 'The sea is either that which lies within the body of the county, or without. That arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coroner. The part of the sea which lies not within the body of a county is called the 'main sea' or 'ocean."

Azuni, an Italian publicist of the last century, in writing of the maritime law of Europe, says, (part 1, c. 1, § 12:) 'The sea belongs to no one. It is the property of all men. All have the same equal right to its use, as to the air they breathe, and to the sun that warms them. Seas are the great highways traced by nature between the different parts of the world, to facilitate and expedite communication between the various nations who inhabit it. If a nation seizes on these highways, if it arrogates to itself the exclusive privilege of traversing them without opposition, and repels, by the fear of being plundered, all those who wish to make the same use of them, it is no better than a nation of robbers.' Section 14: 'The liberty of navigation and of fishing is derived from natural law and the law of nations, as well as from the civil law. For these reasons, the high seas ought to remain as common to the human race as air and light. The use of those elements, unquestionably, can never belong to any one nation, to the exclusion of others.' Section 15: 'From these principles, it follows that the right of prior occupancy cannot give to a nation the absolute empire of the high sea, and for the reason already mentioned, that this element is not susceptible of individual appropriation.'

Valin, in his commentary on the Marine Ordinance, observes: 'For, in short, the ocean belongs to no one, and the conclusion undoubtedly to be drawn from this is that all nations are permitted to navigate it.'

So Vattel, in speaking of the sea, (book 1, c. 23, § 281:) 'But this,' speaking of private property, 'is not the case with the open sea, on which people may sail and fish without the least prejudice to any person whatsoever, and without putting any one in danger. No nation, therefore, has a right to take possession of the open sea, or claim the sole use of it, to the exclusion of other nations. * * * Nay, more, a nation which, without a legitimate claim, would arrogate to itself an exclusive right to the sea, and support its pretensions by force, does an injury to all nations; it infringes their common right; and they are justifiable in forming a general combination against it, in order to repress such an attempt.'

So Chancellor Kent, in speaking of jurisdiction over the seas, (part 1, lecture 2,) says: 'The open sea is not capable of being possessed as private property. The free use of the ocean for navigation and fishing is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all nations meet there, in times of peace, on a footing of entire equality and independence. No nation has any right of jurisdiction at sea, except it be over the persons of its own subjects, in its own public and private vessels.'

From time immemorial, the term 'high seas' ans been used to import the uninclosed and open ocean without the fauces terrae. In the Case of Bevans, 3 Wheat. 336, a homicide had been committed upon an American man-of-war lying at anchor in the main channel of Boston harbor, to which there is at all times a free and unobstructed passage to the open ocean. The language of the statute was practically the same as in this case; but it was held by this court, speaking through Chief Justice Marshall, that, to bring the defendants within the jurisdiction of the courts of the Union, the murder must have been committed in a river, etc., out of the jurisdiction of any state, and that, as the jurisdiction of a state was coextensive with its territory and with its legislative power, the courts of Massachusetts had exclusive jurisdiction of the crime. It was further held that, whatever might be the constitutional power of congress, it was clear that this power had not been exercised so as to confer upon its courts jurisdiction over any offenses committed within the jurisdiction of any particular state. In the Case of Wiltberger, 5 Wheat. 76, it was held that the courts of the United States had no jurisdiction of a manslaughter committed on a merchant vessel of the United States lying in the river Tigris, in the empire of China. It was held in this case that the homicide was not committed on the 'high seas.'

In U.S. v. Jackalow, 1 Black, 484, it was said by this court that, to give a circuit court of the United States jurisdiction of an offense not committed within its district, it must appear that the offense was committed out of the jurisdiction of any state, and not within any other district of the United States. This was applied to an offence committed in Long Island sound, 1 1/2 miles from the Connecticut shore at low-water mark.

So in Miller's Case, 1 Brown, Adm. 156, it was held by Judge Wilkins, of Michigan, that while it was within the constitutional competency of congress to define and punish offenses, when committed upon other waters than the high seas, it had not done so, and that Lake Erie was not a part of the high seas. This was applied to a shocking case of an attempt to burn a passenger steamer upon Lake Erie.

But it seems to me, without going further into the authorities, that the term 'high seas' is accurately defined by the statute under which this indictment is framed as 'waters within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state.'

The underlying error of the opinion of the court in this case appears to me to consist in a total ignoring of the last qualification. That the term 'high seas; extends to what are known as the great oceans of the world, there can be no doubt. I presume it also extends to the Mediterranean sea, for the reason that, bordering so many nations as it does, a division of the waters between these nations would be impracticable. Whether, as stated in the opinion of the court, the term also extends to the Black sea, there seems to be grave doubt; but, if it does, it is because the waters of the Black sea are not proprietary waters,-are not claimed by Russia or Turkey as being a part of their territory. The very idea of giving to the courts of all nations jurisdiction over the high seas arises, primarily, from the fact that they belong to no particular sovereignty. If it be true that the lakes are high seas, it logically follows that any European power may punish a crime committed upon the lakes in their own courts, whenever it is able to lay hands upon the offender. It would also follow that other nations than England and America would have the right to navigate these seas without any local restrictions, and even to send their fleets there, and perhaps to engage in hostilities upon its waters. In the case of The Genesee Chief, 12 How. 443, this court did not hold that the lakes were high seas, but that the limitation of the admiralty jurisdiction in civil cases to tide waters did not apply to this country, or to the interior lakes,-a doctrine in which I fully concur, and one that has met with the practically unanimous approval of the profession.

The difficulty of applying the term 'high seas' to the lakes arises, not from the fact that they are not large enough, that the commerce which vexes their waters is not of sufficient importance, but from the fact that they are within the local jurisdiction of the states bordering upon them. By the treaty of peace between this country and Great Britain of 1783, the boundary line between the United States and Canada was fixed in the middle of Lake Ontario, Niagara river, Lake Erie, Detroit river, Lake Huron, St. Mary's river, and Lake Superior; and by the treaty of 1814 this line was recognized, and subsequently designated by commissioners appointed for that purpose. So in the acts admitting Illinois, Wisconsin, and Michigan into the Union the boundary lines of these states were fixed at the middle of Lake Michigan, and, as to the state of Michigan, at the boundary line between the United States and Canada. Acting upon this theory, the state of Michigan has assumed jurisdiction of all crimes committed upon her side of the boundary line, and provided for their punishment in certain counties, irrespective of the question whether the cirmes were committed within the limits of a particular county.

But, even if the lakes were to be considered as high seas, that term, surely, cannot be applied to a river 22 miles in length, and less than a mile in width, connecting the two lakes.

The further question then arises whether the locality in question is covered by the words, 'in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state.' As the western half of the Detroit and St. Clair rivers is within the territorial jurisdiction of Michigan, it only remains to consider whether the fact that the eastern half of these rivers is within the territorial jurisdiction of Canada meets the requirements of the statute. I may say that this question was elaborately considered by the supreme court of Michigan in the case of People v. Tyler, 7 Mich. 161, which was also the case of an assault committed on the Canadian side of the boundary line, in which the federal court, without an investigation of the question, had convicted Tyler. The supreme court of Michigan were unanimous in the opinion that the jurisdiction did not exist. Separate opinions were delivered by three of the judges, in which every possible case bearing upon the question was cited and criticised. I have no doubt whatever of the power of congress to extend its jurisdiction to crimes committed upon navigable waters. Indeed, since the decision in Byers' Case, and on September 4, 1890, congress did pass an act providing for the punishment of crimes committed anywhere upon the lakes. 1 Supp. Rev. St. 799.

But, considering that at the time the act of congress in question was passed, viz. in 1790, the lakes were far beyond the bounds of civilization, and possessed no commerce, except such as was carried on in canoes, it seems impossible to say that congress could have intended that the words 'arm of the sea, or river, haven, creek, basin, or bay' should apply to the lakes, when the word 'lakes' might just as well have been used, had the interior waters of the country been included. It seems to me entirely clear that the words alluded to, following immediately the words 'high seas,' apply only to such waters as are connected immediately with the high seas, and have no application to the Great Lakes. This was evidently the view taken by congress in the enactment of 1890.

I may add, in this connection, that the act of 1790, under which this indictment was framed, was before congress at the time of the passage of the crimes act of 1825, and also at the time of the adoption of the Revised Statutes; and no effort was made to change the language of the act by inserting the word 'lakes,' and no such change was ever made until after the offense in this case had been committed.

The conclusion seems to me irresistible that considering the words high seas are followed by the words 'in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty jurisdiction of the United States and out of the jurisdiction of any particular state,' they should be limited to such waters as are directly connected with the high seas. It is incredible that, if congress had intended to include the lakes in either of these acts, it would have drawn a line through the center, and given to the federal courts jurisdiction upon one side of that line, and not upon the other, when it was equally within its competency to confer full jurisdiction over all crimes committed upon American vessels upon the entire lakes. Especially is this true in view of the fact that it is often impossible to locate the ship, at the time the crime is committed, upon one side or the other of the boundary line.

It is beyond question, in this case, that the crime charged was committed within the waters of the province of Ontario; that the courts of such province had jurisdiction of the cause; and, in my opinion, such jurisdiction was exclusive. 

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