UNITED STATES v. FLORES.

By indictment found in the District Court for Eastern Pennsylvania it was charged that appellee, a citizen of the United States, murdered another citizen of the United States upon the Steamship Padnsay, an American vessel, while at anchor in the Port of Matadi, in the Belgian Congo, a place subject to the sovereignty of the Kingdom of Belgium, and that appellee, after the commission of the crime, was first brought into the Port of Philadelphia, a place within the territorial jurisdiction of the District Court. By stipulation it was conceded, as though stated in a bill of particulars, that the Padnsay, at the time of the offense charged, was unloading, being attached to the shore by cables, at a point 250 miles inland from the mouth of the Congo river.

The District Court, following its earlier decision in United States ex rel. Maro v. Mathues, 21 F(2d) 533, affirmed (C.C.A.) 27 F.(2d) 518, sustained a demurrer to the indictment and discharged the prisoner on the ground that the court was without jurisdiction to try the offense charged. 3 F.Supp. 134. The case comes here by direct appeal under the Act of March 2, 1907, c. 2564, 34 Stat. 1264, 18 U.S.C. § 682 (18 USCA § 682) and section 238 of the Judicial Code, as amended by Act of February 13, 1925, 28 U.S.C. § 345 (28 USCA § 345), the court below certifying that its decision was founded upon its construction of section 272 of the Criminal Code, 18 U.S.C. § 451 (18 USCA § 451).

Sections 273 and 275 of the Criminal Code, 18 U.S.C. §§ 452, 454 (18 USCA §§ 452, 454), define murder and fix its punishment. Section 272,1 upon the construction of which the court below rested its decision, makes punishable offenses defined by other sections of the Criminal Code, among other cases, 'when committed within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging in whole or in part to the United States' or any of its nationals. And by section 41 of the Judicial Code, 28 U.S.C. § 102 (28 USCA § 102), venue to try offenses 'committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district,' is 'in the district where the offender is found, or into which he is first brought.' As the offense charged here was committed on board a vessel lying outside the territorial jurisdiction of a state, see Wynne v. United States, 217 U.S. 234, 30 S.Ct. 447, 54 L.Ed. 748; United States v. Rodgers, 150 U.S. 249, 265, 14 S.Ct. 109, 37 L.Ed. 1071, and within that of a foreign sovereignty, the court below was without jurisdiction to try and punish the offense unless it was within the admiralty and maritime jurisdiction of the United States.

Two questions are presented on this appeal, first, whether the extension of the judicial power of the federal government 'to all Cases of admiralty and maritime Jurisdiction,' by article 3, § 2, of the Constitution confers on Congress power to define and punish offenses perpetrated by a citizen of the United States on board one of its merchant vessels lying in vavigable waters within the territorial limits of another sovereignty; and, second, whethr Congress has exercised that power by the enactment of section 272 of the Criminal Code under which the indictment was found.

The court below thought, as appellee argues, that as section 8 of article 1 of the Constitution specifically granted to Congress the power 'to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,' and 'to make rules concerning captures on land and water,' that provision must be regarded as a limitation on the general provision of section 2 of article 3, that the judicial power shall extend 'to all Cases of admiralty and maritime Jurisdiction'; that as the specific grant of power to punish offenses outside the territorial limits of the United States was thus restricted to offenses occurring on the high seas, the more general grant could not be resorted to as extending either the legislative or judicial power over offenses committed on vessels outside the territorial limits of the United States and not on the high seas.

Before the adoption of the Constitution, jurisdiction in admiralty and maritime cases was distributed between the Confederation and the individual states. Article 9 of the Articles of Confederation provided that 'the United States in Congress assembled, shall have the sole and exclusive right and power * * * of establishing rules for deciding in all cases, what captures on land or water shall be legal, * * * appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures. * * *' So much of the general admiralty and maritime jurisdiction as was not included in this grant of power remained with the states. The powers thus granted were in substance the same as those later conferred on the national government by article 1, § 8, of the Federal Constitution. This section was adopted to carry out a resolution of the Convention 'that the national legislature ought to possess the legislative rights vested in Congress by the Confederation.' Its primary purpose and effect was to transfer to the newly organized government the powers in a admiralty matters previously vested in the Confederation.2

A proposal independently made and considered in the Convention that 'the admiralty jurisdiction ought to be given wholly to the national government,' resulted in the adoption of article 3, § 2, by which the judicial power of the United States was extended to all cases of admiralty and maritime jurisdiction.3

This section has been consistently interpreted as adopting for the United States the system of admiralty and maritime law, as it had been developed in the admiralty courts of England and the Colonies, and, by implication, conferring on Congress the power, subject to well recognized limitations not here material,4 to alter, qualify, or supplement it as experience or changing conditions may require. Panama R.R. Co. v. Johnson, 264 U.S. 375, 386, 388, 44 S.Ct. 391, 68 L.Ed. 748; Crowell v. Benson, 285 U.S. 22, 39, 52 S.Ct. 285, 76 L.Ed. 598; see The Oconee (D.C. 280 F. 927; United States v. Bevans, 3 Wheat. 336, 389, 4 L.Ed. 404.

In view of the history of the two clauses and the manner of their adoption, the grant of power to define and punish piracies and felonies on the high seas cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the national government by article 3, § 2. The two clauses are the result of separate steps independently taken in the Convention, by which the jurisdiction in admiralty, previously divided between the Confederation and the states, was transferred to the national government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a Constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the states and the national government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters.

As we cannot say that the specific grant of power to define and punish felonies on the high seas operated to curtail the legislative or judicial power conferred by article 3, § 2, we come to the question principally argued, whether the jurisdiction over admiralty and maritime cases, which it gave, extends to the punishment of crimes committed on vessels of the United States while in foreign waters. As was pointed out by Mr. Justice Story, in the course of an elaborate review of the history of admiralty jurisdiction, in De Lovio v. Boit, 7 Fed.Cas. 418, 438, No. 3,776, admiralty 'from the highest antiquity, has exercised a very extensive criminal jurisdiction, and punished offences by fine and imprisonment.'5 The English courts have consistently held that jurisdiction is not restricted to vessels within the navigable waters of the realm, but follows its ships upon the high seas and into ports and rivers within the territorial jurisdiction of foreign sovereigns. Queen v. Carr & Wilson, 10 Q.B.D. 76; Queen v. Anderson, L.R., 1 Crown Cases Reserved 161; Rex v. Allen, 1 Moody C.C. 494; see Rex v. Jemot, 1 Russell on Crimes, 4th ed. 153.

The criminal jurisdiction of the United States is wholly statutory, see United States v. Hudson, 7 Cranch, 32, 3 L.Ed. 259, but it has never been doubted that the grant of admiralty and maritime jurisdiction to the federal government includes the legislative power to define and punish crimes committed upon vessels lying in navigable waters of the United States. From the very organization of the government, and without intermission, Congress has also asserted the power, analogous to that exercised by English courts of admiralty, to punish crimes committed on vessels of the United States while on the high seas or on navigable waters not within the territorial jurisdiction of a state. The Act of April 30, 1790, c. 9, § 8, 1 Stat. 112, 113 (18 USCA § 481 note), provided for the punishment of murder committed 'upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular State,' and provided for the trial of the offender in the district where he might be apprehended or 'into which he may first be brought.' Section 12 of this Act (18 USCA § 498 and note) dealt with manslaughter, but only when committed upon the high seas. It is true that in United States v. Bevans, 3 Wheat. 336, 4 L.Ed. 404, the prisoner, charged with murder on a warship in Boston Harbor, was discharged, as was one charged with manslaughter committed on a vessel on a Chinese River in United States v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37. But the judgments were based not upon a want of power in Congress to define and punish the crimes charged, but upon the ground that the statute did not apply, in the one case, for the reason that the place of the offense was not out of the jurisdiction of a state, and in the other, because the offense, manslaughter, was not committed on the high seas.6

The Act of March 3, 1825, c. 65, § 4, 4 Stat. 115, provided for the punishment of any person committing murder 'upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay, within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state,' and section 22 provided for the punishment of assault with a dangerous weapon, committed under similar circumstances.7 The provisions of the latter section, carried into section 5346 of the Revised Statutes (18 USCA § 455), were upheld in United States v. Rodgers, supra, as a constitutional exercise of the power of Congress to define and punish offenses occurring in American vessels while within territorial waters of another sovereignty. Rodgers had been convicted of assault with a dangerous weapon, committed on a vessel of the United States lying in the Detroit river within the territorial jurisdiction of Canada, and his conviction was sustained by this court. It was assumed that the statute was applicable only with respect to offenses committed on the high seas and waters tributary to them, and the decision turned on whether the Great Lakes were to be deemed 'high seas' within the meaning of the statute. It was held that they were, and the power of Congress to punish offenses committed on an American vessel within the territorial waters of Canada, tributary to the Lakes, was expressly affirmed.

As the offense charged here appears to have been committed on an American vessel while discharging cargo in port, the jurisdiction is not affected by the fact that she was then at a point on the Congo remote from the sea, where it does not affirmatively appear that the water is salt or tidal. On this point also United States v. Rodgers, supra, is controlling, for there the offense committed within a foreign territorial jurisdiction was upon nontidal fresh water.8

The appellee insists that even though Congress has power to define and punish crimes on American vessels in foreign waters, it has not done so by the present statute, since the criminal jurisdiction of the United States is based upon the territorial principle and the statute cannot rightly be interpreted to be a departure from that principle. But the language of the statute making it applicable to offenses committed on an American vessel outside the jurisdiction of a state 'within the admiralty and maritime jurisdiction of the United States; is broad enough to include crimes in the territorial waters of a foreign sovereignty. For Congress, by incorporating in the statute the very language of the constitutional grant of power, has made its exercise of the power coextensive with the grant. Compare The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451.

It is true that the criminal jurisdiction of the United States is in general based on the territorial principle, and criminal statutes of the United States are not by implication given an extraterritorial effect. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149; compare Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. But that principle has never been thought to be applicable to a merchant vessel which, for purposes of the jurisdiction of the courts of the sovereignty whose flag it flies to punish crimes committed upon it, is deemed to be a part of the territory of that sovereignty, and not to lose that character when in navigable waters within the territorial limits of another sovereignty. United States v. Rodgers, supra; compare Thomas v. Lane, Fed. Cas. No. 13,902, 2 Sumn. 1; Queen v. Anderson, supra; Queen v. Carr & Wilson, supra; Rex v. Allen, supra; Rex v. Jemot, supra. This qualification of the territorial principle in the case of vessels of the flag was urged by Mr. Webster while Secretary of State, in his letter to Lord Ashburton9 of August 1, 1842, quoted with approval in United States v. Rodgers, supra, 150 U.S. 264, 265, 14 S.Ct. 109, 37 L.Ed. 1071. Subject to the right of the territorial sovereignty to assert jurisdiction over offenses disturbing the peace of the port, it has been supported by writers on international law, and has been recognized by France, Belgium, and other continental countries, as well as by England and the United States. See Moore, International Law Digest, vol. 2, 287, 297; Fiore, International Law Codified, translated by E. M. Borchard, 192, 193; Wheaton, International Law, vol. I, 245; Hall, International Law (8th Ed.) 253—258; Jessup, The Law of Territorial Waters, 144—193.

In view of the wide recognition of this principle of extraterritorial jurisdiction over crimes committed on merchant vessels and its explicit adoption in United States v. Rodgers, supra, we cannot say that the language of the present statute punishing offenses on United States vessels out of the jurisdiction of a state, 'when committed within the admiralty and maritime jurisdiction of the United States,' was not intended to give effect to it. If the meaning of the statute were doubtful, the doubt would be resolved by the report on these sections by the Special Joint Committee on the Revision of the Laws, 60th Congress, 1st Sess., Rep. 10, part 1, p. 10, in which it was pointed out that the jurisdiction extends to vessels of the United States when on navigable waters within the limits of a foreign state, and 'all cases arising on board such vessels while on any such waters, are clearly cases within the admiralty and maritime jurisdiction of the United States.'

A related but different question, not presented here, may arise when jurisdiction over an offense committed on a foreign vessel is asserted by the sovereignty in whose waters it was lying at the time of its commission, since for some purposes, the jurisdiction may be regarded as concurrent, in that the courts of either sovereignty may try the offense.

There is not entire agreement among nations or the writers on international law as to which sovereignty should yield to the other when the jurisdiction is asserted by both. See Jessup, the Law of Territorial Waters, 144—193. The position of the United States exemplified in Wildenhus's Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565, has been that at least in the case of major crimes, affecting the peace and tranquillity of the port, the jurisdiction asserted by the sovereignty of the port must prevail over that of the vessel. In that case the Belgian Consul sought release on habeas corpus of Wildenhus, a seaman, who was held in a New Jersey jail on a charge of homicide committed on a Belgian vessel lying in New Jersey waters, on the ground that Article 11 of the Convention between Belgium and the United States of March 9, 1880, 21 Stat. 781, gave consular officers of the sovereignty of the vessel sole cognizance of offenses on board ship, except those of a nature to disturb the tranquillity and public order on shore and those involving a person not belonging to the crew. The court construed the Convention as inapplicable to the crime of murder and upheld the jurisdiction of the local court as conforming to the principles of international law. It said, page 12 of 120 U.S., 7 S.Ct. 385, 387:

'And so by comity it came to be generally understood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce should require. But, if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority.' This doctrine does not impinge on that laid down in United States v. Rodgers, supra, that the United States may define and punish offenses committed by its own citizens on its own vessels while within foreign waters where the local sovereign has not asserted its jurisdiction.10 In the absence of any controlling treaty provision, and any assertion of jurisdiction by the territorial sovereign, it is the duty of the courts of the United States to apply to offenses committed by its citizens on vessels flying its flag, its own statutes, interpreted in the light of recognized principles of international law. So applied the indictment here sufficiently charges an offense within the admiralty and maritime jurisdiction of the United States and the judgment below must be

Reversed.