Dissenting Opinion: Gray, J.

seas" of the lakes, but only to vessels on the waters designated as connecting with them. So far as vessels on those seas are concerned, there is no limitation named to the authority of the United States. It is true that lakes, properly so called, that is, bodies of water whose dimensions are capable of measurement by the unaided vision, within the limits of a State, are part of its territory and subject to its jurisdiction, but bodies of water of an extent which cannot be measured by the unaided vision, and which are navigable at all times in all directions, and border on different nations or States or people, and find their outlet in the ocean as in the present case, are seas in fact, however they may be designated. And seas in fact do not cease to be such, and become lakes, because by local custom they may be so called.

In our judgment the District Court of the Eastern District of Michigan had jurisdiction to try the defendant upon the indictment found, and it having been transferred to the Circuit Court, that court had jurisdiction to proceed with the trial, and the demurrer to its jurisdiction should have been overruled. Our opinion, in answer to the certificate, is that

The courts of the United States have jurisdiction, under section 5346 of the Revised Statutes, to try a person for an assault, with a dangerous weapon, committed on a vessel belonging to a citizen of the United States, when such vessel is in the Detroit River, out of the jurisdiction of any particular State, and within the territorial limits of the Dominion of Canada; and it will be returned to the Circuit Court of the United States for the Sixth Circuit and Eastern District of Michigan, and it is so ordered.

MR. JUSTICE GRAY dissenting.

The opinion of the majority of the court is avowedly based upon the hypothesis that the open waters of the Great Lakes are "high seas," within the meaning of section 5346 of the Revised Statutes, on which the indictment in this case is founded.

That hypothesis I am unable to accept. It appears to me

Dissenting Opinion: Gray, J.

to be inconsistent with the settled meaning of the term "high seas," in our law, and in common speech, and especially as used in the Crimes Acts of the United States, as heretofore uniformly expounded by this court, and by the justices thereof.

According to all the authorities, without exception, "the high seas" denote the ocean, the common highway of all nations—sometimes as including, sometimes as excluding, bays and arms of the sea, or waters next the coast, which are within the dominion and jurisdiction of particular States but never as extending to any waters not immediately connecting with the sea.

The first Crimes Act of the United States provided, in section 8, for the punishment of murder or other capital offence committed "upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular State;" and, in section 12, for the punishment of any person who should “commit manslaughter upon the high seas," but not mentioning in that section any other waters. Act of April 30, 1790, c. 9; 1 Stat. 113, 115. In United States v. Wiltberger, decided by this court in 1820, it was adjudged that manslaughter committed by the master upon one of the seamen, on board a merchant vessel of the United States, below low water mark of a river flowing into the sea in China, was not "manslaughter upon the high seas," nor within the act of 1790; and Chief Justice Marshall, in delivering judgment, said: "If the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the high seas,' if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country." 5 Wheat. 76, 94.

In United States v. Brailsford, this court held that the words "out of the jurisdiction of any particular State," in section 8 of the act of 1790, meant a State of the Union, and not a foreign State; and that a ship lying at anchor in an open roadstead, within a marine league of a foreign shore, and not in a river, haven, basin or bay, might be found by a jury to be on the high seas. 5 Wheat. 184, 189, 200. A similar

Dissenting Opinion: Gray, J.

decision had been previously made by Mr. Justice Story. United States v. Ross, 1 Gallison, 624.

In United States v. Hamilton, Mr. Justice Story held that larceny in an enclosed dock, within the ebb and flow of the tide, in a foreign port, was not larceny "upon the high seas,” under section 16 of the act of 1790. 1 Mason, 152. In United

States v. Morel, it was held by Mr. Justice Baldwin and Judge Hopkinson, that an indictment on the same section was not sustained by proof of stealing in a land-locked harbor of one of the Bahama Islands; the court saying: "The open sea, the high sea, the ocean, is that which is the common highway of nations, the common domain within the body of no country,. and under the particular right or jurisdiction of no sovereign, but open, free and common to all alike, as a common and equal right." 13 American Jurist, 279, 282. And in United States v. Jackson, a like decision was made by Mr. Justice Thompson and Judge Betts as to larceny in the harbor of Vera Cruz, because "the high seas were, properly speaking, within the territory of no State or country." 2 N. Y. Leg. Obs. 3, 4.

In United States v. Robinson, 4 Mason, 307, which was an indictment on the act of March 26, 1804, c. 40, (2 Stat. 290,) for destroying a vessel "on the high seas" with intent to defraud the underwriters, Mr. Justice Story held that a land-locked bay in Bermuda could not be considered as the high seas. And, under the same statute, Mr. Justice Nelson and Judge Betts held that a vessel in the East River, or western extremity of Long Island Sound, was not upon the high seas. United States v. Wilson, 3 Blatchford, 435.

The Crimes Act of March 3, 1825, c. 65, was drafted by Mr. Justice Story, to supply the defects of former acts. 1 Story's Life of Story, 297, 437, 439, 440; 2 ib. 402. That act, in sections 4, 6-8, 11 and 22, provided for the punishment of murder, of assaults with a dangerous weapon or with intent to kill, and of various other crimes, "upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay," thus covering all tide waters, including a dock or basin, or a land-locked bay, in which the tide ebbs and flows from

Dissenting Opinion: Gray, J.

the sea, though in a foreign State, if "within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State" of the Union. 4 Stat. 115-118, 122.

6

In United States v. Grush, 5 Mason, 290, which was an indictment on the provision of section 22 of the act of 1825, (reënacted in the very section of the Revised Statutes now in question,) for an assault with a dangerous weapon and with intent to kill, Mr. Justice Story, in deciding that a place in Boston Harbor within the body of a county was a bay or haven or arm of the sea, but was not the high seas, said: "There cannot, I think, be any doubt as to what is the true meaning of the words high seas' in this statute. Mr. Justice Blackstone, in his Commentaries, (1 Com. 110,) uses the words 'high sea' and 'main sea' (altum mare, or le haut meer) as synonymous; and he adds, that the main sea begins at the low water mark.' But though this may be one sense of the terms, to distinguish the divided empire, which the admiralty possesses between high water and low water mark, when it is full sea, from that which the common law possesses, when it is ebb sea; yet the more common sense is, to express the open, unenclosed ocean, or that portion of the sea, which is without the fauces terræ on the sea-coast, in contradistinction to that, which is surrounded, or enclosed between narrow headlands or promontories." And, after referring to United States v. Wiltberger, above cited, and other authorities, he concluded: "From this view of the subject, I am entirely satisfied, as well upon the language of the authorities, as the descriptive words in the context, that the words 'high seas' in this statute are used in contradistinction to arms of the sea, and bays, creeks, &c., within the narrow headlands of the coast; and comprehend only the open ocean, which washes the sea-coast, or is not included within the body of any county in any particular State." 5 Mason, 297-299.

Here we have the deliberate opinion of Mr. Justice Story, who had drafted the act, who had taken part in all the previous decisions of this court upon the subject, and who had often considered it at the circuit, that the words "high seas" in the very enactment now before us "comprehend only the

Dissenting Opinion: Gray, J.

open ocean, which washes the sea-coast, or is not included within the body of any county in any particular State."

So Chancellor Kent says: "The high seas mean the waters of the ocean without the boundary of any county, and they are within the exclusive jurisdiction of the admiralty up to high water mark when the tide is full. The open ocean which washes the sea-coast is used in contradistinction to arms of the the sea enclosed within the fauces terræ, or narrow headlands and promontories: and under this head are included rivers, harbors, creeks, basins, bays, &c., where the tide ebbs and flows." 1 Kent Com. 367.

If we turn to the principal American dictionaries, we find the following definitions of " high seas": In Worcester, "high seas, the open ocean." In Webster, "high seas, (law) the open sea; the part of the ocean not in the territorial waters of any particular sovereignty, usually distant three miles or more from the coast line." In the Century Dictionary, "high seas” are defined as "the open sea or ocean; the highway of waters; " and, in law, either (1) the waters of the ocean to high water mark, or (2) those "not within the territorial jurisdiction of any nation, but the free highway of all nations, the waters of the ocean exterior to a line parallel to the general direction of the shore and distant a marine league therefrom;" and it is added: "The Great Lakes are not deemed high seas."

A fortnight after the passage of the act of 1825, this court, speaking by Mr. Justice Story, decided that the general admiralty jurisdiction of the courts of the United States was limited to tide waters. The Thomas Jefferson, 10 Wheat. 428. That decision was followed in 1833 in Peyroux v. Howard, 7 Pet. 324, in 1837 in The Orleans, 11 Pet. 175, and in 1847 in Waring v. Clarke, 5 How. 441. For more than half a century after the adoption of the Constitution, Congress took no step towards extending the admiralty jurisdiction beyond such waters. In the act of February 26, 1845, c. 20, extending that jurisdiction, in matters of contract and tort, "upon the lakes and the navigable waters connecting the same," Congress clearly treated those lakes and waters as distinct from, and not included within, "the high seas or tide waters." 5 Stat. 726.