Dissenting Opinion: Gray, J.

And Congress never indicated any intention to extend the criminal jurisdiction of the courts of the United States "to the Great Lakes and the connecting waters" until three years after the assault alleged in the indictment in this case. Act of September 4, 1890, c. 874; 26 Stat. 424.

The judgment of this court in 1851, in The Genesee Chief, 12 How. 443, overruling The Thomas Jefferson and the cases which followed it, and holding the act of 1845 to be constitutional, did not proceed upon any assumption that the Great Lakes were "high seas;" but upon the broad ground that "the lakes and the waters connecting them are undoubtedly public waters," and therefore "within the grant of admiralty jurisdiction in the Constitution of the United States." 12 How. 457. Chief Justice Taney, in delivering that judgment, clearly distinguished the Great Lakes from the high seas. This appears in his statement of the question whether "the admiralty jurisdiction, in matters of contract and tort, which the courts of the United States may lawfully exercise on the high seas, can be extended to the lakes, under the power to regulate commerce;" as well as in his pregnant observations, "These lakes are, in truth, inland seas. Different States border on them on one side, and a foreign nation on the other." 12 How. 452, 453.

So in The Eagle, 8 Wall. 15, in which it was decided that the admiralty jurisdiction over all navigable waters, having been declared in The Genesee Chief to depend upon the Constitution, and not upon any act of Congress, extended to the British side of the Detroit River, Mr. Justice Nelson, speaking for this court, observed the same distinction, saying that the District Courts could take cognizance of "all civil causes of admiralty jurisdiction upon the lakes and waters connecting them, the same as upon the high seas, bays, and rivers navigable from the sea." 8 Wall. 21.

The lakes are not high seas, for the very reason that they are inland seas, within the exclusive jurisdiction and control of those countries within whose territories they lie, or between whose territories they are the boundary; and therein essentially differ from "the high seas, where the law of no particu

Dissenting Opinion: Gray, J.

la State has exclusive force, but all are equal." Bradley, J., in The Scotland, 105 U. S. 24, 29.

The distinction is familiar and well established in international law.

As was said by Sir William Scott: "In the sea, out of the reach of cannon shot, universal use is presumed; in rivers flowing through conterminous States, a common use to the different States is presumed." The Twee Gebroeders, 3 C. Rob. 336, 339.

66

In a case in which a municipal seizure under the Customs Act of March 2, 1799, c. 22, § 29, (1 Stat. 649,) in the St. Mary's River, then forming the boundary between the United States and the Spanish territory, of a vessel bound up that river to the Spanish waters and Spanish possessions, was held unlawful, Mr. Justice Story, speaking for this court, said that, upon the general principles of the law of nations, the waters of the whole river must be considered as common to both nations, for all purposes of navigation, as a common highway, necessary for the advantageous use of its own territorial rights and possessions;" and he distinguished the waters of the river, common to the two nations between whose dominions it flowed, from "the ocean, the common highway of all nations." The Apollon, 9 Wheat. 362, 369, 371.

Vattel says: "The open sea is not of a nature to be pos

sessed, no one being able to settle there so as to hinder others from passing over it." Vattel, lib. 1, c. 23, § 280. "No nation, therefore, has the right to take possession of the open sea, or to claim the sole use of it, to the exclusion of other nations." § 281. "Every lake, entirely included in a country, belongs to the nation owning the country, which in possessing itself of a territory is considered as having appropriated to itself everything included in it; and, as it seldom happens that the property of a lake of considerable size falls to individuals, it remains common to the nation. If this lake is situated between two States, it is presumed to be divided between them at the middle, so long as there is neither title, nor constant and manifest custom, to determine otherwise." c. 22, § 274.

Wheaton says: "The sea cannot become the exclusive prop

Dissenting Opinion: Gray, J.

erty of any nation. And consequently the use of the sea, for these purposes," (navigation, commerce, and fisheries,) "remains open and common to all mankind." Wheaton's International Law, (8th ed.,) § 187. "The territory of the State includes the lakes, seas and rivers, entirely enclosed within its limits. The rivers which flow through the territory also form a part of the domain, from their sources to their mouths, or as far as they flow within the territory, including the bays or estuaries formed by their junction with the sea. Where a navigable river forms the boundary of conterminous States, the middle of the channel is generally taken as the line of separation between the two States, the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occupancy and long undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river." $192.

Phillimore, after observing that "no difficulty can arise with respect to rivers and lakes entirely enclosed within the limits of a State," and discussing the rights in rivers which flow through more than one State, and the rights in the open sea, in narrow seas or straits, and in portions of the sea next the coast or between headlands, says: "With respect to seas entirely enclosed by the land, so as to constitute a salt-water lake, the general presumption of law is, that they belong to the surrounding territory or territories in as full and complete a manner as a fresh-water lake. The Caspian and the Black Sea naturally belong to this class." And he proceeds to show that the rights of other nations than Turkey and Russia to navigate the Black Sea from the Mediterranean rest upon treaties only. 1 Phillimore's International Law, (3d ed.) c. 5, § 155; c. 8, § 205, 205A. See also Wheaton, § 182 and note; Treaty of 1862 of the United States with the Ottoman Empire, art. 11, 12 Stat. 1216.

The Mediterranean Sea, opening directly into the Atlantic Ocean at the Straits of Gibraltar, and washing the shores of many countries of different sovereigns, has, excepting such portions thereof as the Gulf of Venice or the Straits of Mes

VOL. CL-18

Dissenting Opinion: Gray, J.

sina, been recognized and considered by all nations for centuries as part of the high seas, free to all mankind. Martens, Précis du Droit des Gens, § 42; Wheaton, § 190. And it was the one sea familiarly known to the ancients as altum mare, the deep sea or "high sea," or simply altum, the deep.

The freedom of the Baltic Sea, and of the Sound connecting it with the North Sea, long and earnestly controverted, was finally established in 1857 by a treaty of the five powers whose territories bordered thereon with other European nations, and by a separate treaty between the United States and Denmark. Wheaton, §§ 183-185, 187 note; 1 Phillimore, c. 5, $ 179; c. 8, § 206; 11 Stat. 719.

As to the Great Lakes of North America, there has never been any doubt. They are in the heart of the continent, far above the flow of the tide from the sea. Lake Michigan is wholly within the limits and dominion of the United States, and of those States of the Union which surround it. Illinois Central Railroad v. Illinois, 146 U. S. 387; 6 Opinions of Attorneys General, 172. The middle line of Lakes Superior, Huron, Erie and Ontario, and of the waters connecting them, forms part of the boundary between the United States and the State of Michigan and other States of the Union, on the one hand, and the British possessions in Canada, on the other. Treaties of Paris in 1783, art. 2, and of Ghent in 1814, art. 6, and Decision of Commissioners under this article; 8 Stat. 81, 221, 274; Charters and Constitutions, 994, 1453, 2026. No other nation has the right to navigate them, except by the permission, and subject to the laws, of the United States and Great Britain, respectively. The controversy between the United States and Great Britain as to the right of navigating the river St. Lawrence turned upon the effect to be given to the fact that one side of the Great Lakes and of the waters connecting them belonged to each country, as against the fact that both shores of the St. Lawrence below belonged to Great Britain; and it was never suggested that any third nation had a free and common right of navigation of the lakes and their connecting waters. On the contrary, the exclusive right of the United States and Great Britain to navigate the lakes was

Dissenting Opinion: Gray, J.

made the basis of the American claim to the navigation of the river. On June 19, 1826, Mr. Clay, Secretary of State under President John Quincy Adams, in a letter to Mr. Gallatin, then Minister to England, said: "The United States and Great Britain have, between them, the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) includes that of passing from the one to the other through the natural link." Congressional Documents, 1827-28, No. 43, p. 19; Wheaton, § 205. The right of citizens of the United States to navigate the St. Lawrence, as well as a right to British subjects to navigate Lake Michigan, was secured by treaties between the two countries in 1854 and 1871. 10 Stat. 1091; 17 Stat. 872. See also Act of July 26, 1892, c. 248, 27 Stat. 267; 1 Wharton's International Law Digest, §§ 30, 31.

No instance has been produced, in which the words "high seas" have been used to designate fresh inland waters, the entire jurisdiction and control of which belong to those nations within whose territories they lie, or between whose territories they form the boundary.

The conclusion seems to me inevitable that no part of the Great Lakes can be held to be "high seas," within the meaning of section 5346 of the Revised Statutes.

The language of this section, immediately following the term "the high seas," is "or in any arm of the sea, or in any river, haven, creek, basin or bay." It is quite clear that the Detroit River is not an "arm of the sea," or a "haven, creek, basin or bay." Is it a "river," within the meaning of this enactment? Upon this point I agree with the rest of the court that the language used must be read in conjunction with the term "the high seas,” and as referring to waters connecting with the high seas mentioned; and that Congress cannot be supposed to have intended to include fresh-water rivers, and not to include the lakes from or into which they flow, and which, together with them, form a continuous passage for vessels. But if the lakes are not "high seas," nor included in the act, the consequence would seem to be that the word "river" cannot be held to include a river connecting two of the lakes.