UNITED STATES v. BEVANS.

FEBRUARY TERM, 1818.

[3 Wheaton's Reports, 337-391.]

BEVANS was a marine on board the United States ship Independence; and while this ship was lying in Boston harbor, within the limits wherein the process of the courts of Massachusetts had always been served, he killed the cook's mate of said ship. He was tried for this act before the United States circuit court for the district of Massachusetts and found guilty. A motion for a new trial was then made; but the judges of that court being opposed in opinion as to the case being within their jurisdiction, it was brought to the supreme court for de

cision.

On the 21st of February the chief justice delivered the opinion of the court:

THE question proposed by the circuit court which will be first considered is,

Whether the offence charged in this indictment was, according to the statement of facts which accompanies the question, "within the jurisdiction or cognizance of the circuit court of the United States for the district of Massachusetts?"

The indictment appears to be founded on the eighth section of the "act for the punishment of certain crimes against the United States." That section gives the courts of the union cognizance of certain offences committed on the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular state.

Whatever may be the constitutional power of congress, it is clear that this power has not been so exercised in this section of the act as to confer on its courts jurisdiction over any offence committed in a river, haven, basin, or bay, which river, haven, basin, or bay is within the jurisdiction of any particular state.

What, then, is the extent of jurisdiction which a state possesses?

3 Wh. 386

We answer, without hesitation, the jurisdiction of a state is coextensive with its territory; coextensive with its legislative power.

The place described is unquestionably within the original territory of Massachusetts. It is, then, within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States.

It is contended to have been ceded by that article in the constitution which declares that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction." The argument is, that the power thus granted is exclusive; and that the murder committed by the prisoner is a case of admiralty and maritime jurisdiction.

Let this be admitted. It proves the power of congress to legislate in the case; not that congress has exercised that power. It has been argued, and the argument in favor of, as well as that against the proposition, deserves great consideration, that courts of common law have concurrent jurisdiction with courts of admiralty over murder committed in bays, which are inclosed parts of the sea; and that for this reason the offence is within the jurisdiction of Massachusetts. But in construing the act of congress, the court believes it to be unnecessary to pursue the investigation which has been so well made at the bar respecting the jurisdiction of these rival courts.

To bring the offence within the jurisdiction of the courts of the union, it must have been committed in a river, &c., out of the jurisdiction of any state. It is not the offence committed, but the bay in which it is committed, which must be out of the jurisdiction of the state. If, then, it should be true that Massachusetts can take no cognizance of the place itself be out of her jurisdiction, cognizance of that offence to its courts. jurisdiction, the crime cannot be punished in the courts of the

union.

offence; yet, unless the congress has not given If there be a common

Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise?

3 Wh. 387.

This is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction. It is obviously designed for other purposes. It is in the eighth section of the second article we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased, by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.

It is observable that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the states. It is difficult to compare the two sections together without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction.

It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction is in the government of the union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts. Suppose, for example, the power of regulating trade had not been given to the general government. Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction have devested Massachusetts of the power to regulate the trade of her bay? As the powers of the respective governments now stand, if two citizens of Massachusetts step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction and punishable by the laws of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the bay in which this mur

der was committed is not out of the jurisdiction of a state, and the circuit court of Massachusetts is not authorized by the section under consideration to take cognizance of the murder which has been committed.

It may be deemed within the scope of the question certified to this court, to inquire whether any other part of the act has given cognizance of this murder to the circuit court of Massachusetts ?

The third section enacts, "that if any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons, on being thereof convicted, shall suffer death."

Although the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war on the deck of which it was committed is, it has been said, "a place under the sole and exclusive jurisdiction of the United States," whose courts may consequently take cognizance of the offence.

That a government, which possesses the broad power of war, which "may provide and maintain a navy," which "may make rules for the government and regulation of the land and naval forces," has power to punish an offence committed by a marine on board a ship of war, wherever that ship may lie, is a proposition never to be questioned in this court. On this section, as on the eighth, the inquiry respects not the extent of the power of congress, but the extent to which that power has been exercised.

The objects with which the word "place" is associated are all, in their nature, fixed and territorial. A fort, an arsenal, a dock-yard, a magazine are all of this character. When the sentence proceeds with the words, "or in any other place or district of country under the sole and exclusive jurisdiction of the United States," the construction seems irresistible that by the words "other place" was intended another place of a similar character with those previously enumerated, and with that

10

which follows. Congress might have omitted, in its enumeration, some similar place within its exclusive jurisdiction, which was not comprehended by any of the terms employed, to which some other name might be given; and therefore the words "other place" or "district of country" were added; but the context shows the mind of the legislature to have been fixed on territorial objects of a similar character.

This construction is strengthened by the fact, that, at the time of passing this law, the United States did not possess a single ship of war. It may therefore be reasonably supposed that a provision for the punishment of crimes in the navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark that afterwards, when a navy was created, and congress did proceed to make rules for its regulation and government, no jurisdiction is given to the courts of the United States of any crime committed in a ship of war, wherever it may be stationed. Upon these reasons the court is of opinion that a murder committed on board a ship of war, lying within the harbor of Boston, is not cognizable in the circuit court for the district of Massachusetts; which opinion is to be certified to that court.

The opinion of the court on this point is believed to render it unnecessary to decide the question respecting the jurisdiction of the state court in the case.

3 Wh. 391.