² § 272. “ The crimes and offenses defined in this chapter shall be punished as herein prescribed:

“ First: When committed upon the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, or 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 citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, or District thereof....”

³ On July 16,1787, the Convention agreed nem. con. “ that the national legislature ought to possess the legislative rights vested in Congress by the Confederation.” This proposal was committed to the Committee of Detail in resolution VI, of July 26th. The Committee, on August 6th, in Article VII of their draft, recommended a provision, based on the articles of Confederation, which, as formulated by the Convention on August 17th, and amended in matters not now material by the Committee on Style, was included in Article I, § 8, of the Constitution. See Madison's Diary, International Edition, pp. 260, 333, 340, 341, 415, 416.

⁴ On June 5,1787, Wilson stated to the Convention that he thought the admiralty jurisdiction should be given wholly to the national government. Resolution XVI, which was referred to the Committee on Detail on July 26th, provided that the jurisdiction of the national judiciary “ shall extend to cases arising under laws passed by the general legislature and to such other questions as involve the natural peace and harmony.” Wilson was one of the five members of the Committee on Detail, chosen on July 24th, which reported, August 6th, Article X I, dealing with the jurisdiction of federal courts, and containing in § 3 a provision extending the jurisdiction of the Supreme Court “ to all cases of admiralty and maritime jurisdiction” which was ultimately incorporated in § 2 of Article III of the Constitution, as finally adopted. Madison's Diary, International Edition, pp. 61, 336, 317, 318, 344.

⁵ In Panama R. R. Co. i. Johnson, 264 U. S. 375, 386, 387, the court said: “ When all is considered, therefore, there is no room to doubt that the power of Congress extends to the entire subject and permits of the exercise of a wide discretion. But there are limitations which have come to be well recognized. One is that there are boundaries to the maritime law and admiralty jurisdiction which inhere in those subjects and cannot be altered by legislation, as by excluding a thing falling clearly within them or including a thing falling clearly without. Another is that the spirit and purpose of the constitutional provision require that the enactments,—when not relating to matters whose existence or influence is eonfined to a more restricted field, as in Cooley v. Board of Wardens, 12 How. 299, 319,—shall be coextensive with and operate uniformly in the whole of the United States. Waring v. Clarke, 5 How. 441, 457; The Lottawanna, 21 Wall. 558, 574, 577; Butler v. Boston & Savannah S. S. Co., 130 U. S. 527, 556, 557; In re Garnett, 141 U. S. 1,12; Southern Pacific Co. v. Jensen, 244 U. S. 205, 215; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 164; Washington v. Dawson & Co., 264 U. S. 219; 2 Story Const., 5th ed., §§ 1663, 1664, 1672.”

⁶ In England, serious offenses committed “ upon the sea, or in any other haven, river, creek, or place where the admiral or admirals have or pretend to have power, authority or jurisdiction” were, after the statute 27 Henry VIII c. 4, and 28 Henry VIII, c. 15, tried according to the course of the common law before specially constituted admiralty courts, the judges of which were designated to sit by the Lord Chancellor. They were often common law judges who sat as commissioners for the trial of crimes within the admiralty and maritime jurisdiction. Holdsworth, History of English Law, 3d ed., Vol. I., 550-552; Hale, Pleas of the Crown, Vol. II, 17; Stephen, History of Criminal Law of England, Vol. II, 16-23; cf. Brooks, Trial of Captain Kidd, 40, 57. There is evidence that during the seventeenth century the courts of Virginia and Maryland tried felonies and piracies which, in England, would have been within the jurisdiction of the Admiralty Commissioners. See Crump, Colonial Admiralty Jurisdiction in the Seventeenth Century, 68. The practice under the statute, 28 Henry VIII, c. 15, was extended to the Colonies in cases of “ piracy, felonies and robberies,” by statute 11 and 12 William III, c. 7. See 2 Stephen, supra 20. In Virginia, very shortly before the enactment of this statute, an act was passed adopting the provisions of the statute of Henry VIII. 3 Hening, Statutes at Large of Virginia, 176. For instances of minor offenses prosecuted in the Colonial Courts of Vice-Admiralty in the eighteenth century, seeHough's Cases in Vice-Admiralty and Admiralty: King v. Booth (1730), p. 12; King v. Burgess (1748), p. 56; King v. White (1754), p. 81. Eighteenth century Vice-Admiralty commissions in the Colonies contain verbal grants of jurisdiction over crimes within the admiralty jurisdiction. Publications of Colonial Society of Massachusetts, Vol. II, 237, 238; Benedict on Admiralty, 5th ed., 787-811; Record Book of Maryland Court of Vice-Admiralty in Manuscripts Division of the Library of Congress, fols. 74, 82. And there is evidence of the trial of piracies in the Colonies, see Jameson, Privateering and Piracy in the Colonial Period, pp. 143,278, note 1,286, note 1; and see 577 to 580. Compare Rhode Island: Letters from Governors in America, 1756, P.R.O.: C.O.5.: 17, p. 639 (Ms. copy in Library of Congress), ?which indicates a trial at Providence for murder on the high seas in a special admiralty court constituted under the statutes 11 and 12 William III. Captain Kidd, who was arrested in Boston prior to 1700 for murder and piracy on the high seas, was transported to England for trial before an admiralty court organized pursuant to royal commission (see 14 Howell's State Trials, 123, 147, 191) and this practice may well have continued after the statute of William III.

⁷ In United States v. McGill, 4 Dali, 425, Mr. Justice Washington, sitting in the CircuitCourt in a case where the offense charged was murder committed on a vessel lying in the haven of Cape Francois, held that the statute did not apply where the mortal stroke was given on the vessel, but the death occurred on shore, since the murder was not committed on the high seas or any river, basin or bay. He doubted whether the offense thus committed was cognizable in admiralty in the absence of statute, but stated he had no doubt of the power of Congress to provide for it.

⁸ By § 5, the provisions of the Act of 1825 were specifically made applicable to any offense “ committed on board of any ship or vessel, belonging to any citizen or citizens of the United States, while lying in a port or place within the jurisdiction of any foreign state or sovereign, by any person belonging to the company of said ship, or any passenger, on any other person belonging to the company of said ship, or any other passenger… .” This language was not, in terms, incorporated in the Revised Statutes.

Daniel Webster, Chairman of the House Committee having in charge the bill which became the Act of 1825, pointed out in introducing it that the offenses for which it provided punishment had actually occurred upon our ships, while lying in the harbors of foreign nations and had gone unpunished for want of such legislation. Gall & Seaton's Register of Debates in Congress, Vol. 1, cols. 154,158.

⁹ That the jurisdiction in admiralty “ extends as far as the tide ebbs and flows” was a convenient definition of its limits in the historic controversy over the conflicting claims of jurisdiction of the English courts of common law and admiralty over waters within the realm(see DeLovio v. Boit, 7 Fed. Cas. 418, 428; compare Waring v. Clarke, 5 How. 441, 453; United States v. Coombs, 12 Pet. 72; Manchester v. Massachusetts, 139 U. S. 240), a conflict which was but an aspect of the struggle for supremacy of the common law and the prerogative courts. Cf. Julius Goebel, Cases and Materials on the Development of Legal Institutions (1931), 225. But it is a very different question whether the traditional jurisdiction of admiralty conferred upon the United States by the Constitution, extends to non-tidal waters. In England public navigable waters are tidal, and with respect to them the terms have been used interchangeably. But there is nothing in the nature of maritime transactions or the maritime law, which is concerned with the affairs of vessels and those who sail, own, use or injure them, which need limit its application to tidal waters. See Benedict on Admiralty, 5th ed., §§ 39, 43. This was recognized and acted upon by the Vice-Admiralty Courts in the Colonies. See Waring v. Clarke, swpra, 454, 455, 456. In Queen v. Anderson, L. R. 1 Crown Cases Reserved 161, Mr. Justice Blackburn, in upholding the admiralty jurisdiction over manslaughter committed on a British ship forty-five miles up the River Garonne, said, p. 169, that “ the jurisdiction of the Admiralty extends over vessels, not only when they are on the open sea, but also when in places where great ships do generally go.” And in Rex v. Allen, 1 Moody C. C. 494, the judges of England upheld the admiralty jurisdiction of the crime of larceny committed on a British vessel on a Chinese river, twenty or thirty miles from the sea, although it did not appear that the water was tidal. Following the decision in The Genesee Chief, 12 How. 443, that there was constitutional power in Congress to extend the admiralty jurisdiction to non-tidal waters of the United States navigable in fact, civil jurisdiction of admiralty over a collision occurring in the non-tidal waters of the Detroit River within the territorial jurisdiction of Canada, was sustained in The Eagle, 8 Wall. 15, and a like jurisdiction over a crime defined and punished by Act of Congress was sustained in United States v. Rodgers, 150 U. S. 249. See also The Magnolia, 20 How. 296; The Hine v. Trevor, 4 Wall. 555; and In re Garnett, 141 U. S. 1,17,18, where Mr. Justice Bradley said, p. 18, that “ we have no hesitation in saying that the Savannah River from its mouth to the highest point to which it is navigable is subject to the maritime law and the admiralty jurisdiction of the United States.”

¹⁰ “ It is natural to consider the vessels of a nation as parts of its territory, though at sea, as the State retains its jurisdiction over them; and, according to the commonly received custom, this jurisdiction is preserved over the vessels even in parts of the sea subject to a foreign dominion. This is the doctrine of the law of nations, clearly laid down by writers of received authority, and entirely conformable, as it is supposed, with the practice of modern nations. If a murder be committed on board of an American vessel by one of the crew upon another or upon a passenger, or by a passenger on one of the crew or another passenger, while such vessel is lying in a port within the jurisdiction of a foreign State or sovereignty, the offense is cognizable and punishable by the proper court of the United States in the same manner as if such offence had been committed on board the vessel on the high seas. The law of England is supposed to be the same. It is true that the jurisdiction of a nation over a vessel belonging to it, while lying in the port of another, is not necessarily wholly exclusive. We do not so consider or so assert it. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there, by her master or owners, she and they must, doubtless, be answerable to the laws of the place. Nor, if her master or crew, while on board in such port, break the peace of the community by the commission of crimes, can exemption be claimed for them. But, nevertheless, the law of nations, as I have stated it, and the statutes of governments founded on that law, as I have referred to them, show that enlightened nations, in modern times, do clearly hold that the jurisdiction and laws of a nation accompany her ships not only over the high seas, but into ports and harbors, or wheresoever else they may be water-borne, for the general purpose of governing and regulating the rights, duties, and obligations of those on board thereof, and that, to the extent of the exercise of this jurisdiction, they are considered as parts of the territory of the nation herself.” 6 Webster's Works, 306, 307.

¹¹ That the doctrines are not in conflict was pointed out by Webster in his letter to Lord Ashburton, quoted supra note 9. See also Hall, International Law, 8th ed., 255-256.