404
J!'EDERAL REPORTER.
68,) and the qtuzsi adjudication in Greenwood v. BrasMr,'8IJJpra, it is thought that at this point in the litigation, at least, the doubts arising should be resolved in favor of the patent. Upon the question of anticipation, a number of affiants have sworn to prior use, but some of them have made contrary statements out of court; others have recognizAd the patent by taking licenses under it; others still were examined years ago, when their interest to defeat the patent was as keen, and their recollection presumably much keener, and they failed to mention instances of anticipation which they now relate with great elaboration and attention to detail. Many active and enterprising manufacturers, who could hardly have missed learning of these instances of prior use, testify that they never heard of them. It surely is a remarkable fact that, if this valuable improvement was known as early as 1865, it should have been permitted to fall into disuse by the trade, which, after the patent, gave it such a cordial reception. The presumptions, invoked by the complainant, arising from these facts, certainly raise a doubt, which, upon this question, should be absent from the mind of the court, in order to overthrow the patent. Cantrell v. Wallick; 117 U. S. 689,6115,6 Sup. Ct. Rep. 970; Coffin v. Ogden, 18 Wall. 120, 124; Tekphone 00. v. Telephone Co.,22 Fed. Rep. 309, 313. Butthesequestions can best be determined upon the final hearing. It would be most unsatisfactory and unfair to all concerned .to attempt to decide them upon affidavits. A question or two put by the cross-examiner will often destroy the entire force of an ex parte statement. Both parties should be allowed an opportunity to apply this test. Without further comment upon the evidence now presented, it is sufficient to say that the considerations referred to lead to the conclusion that the present status should be preserved until the final hearing, unless the complainant unreasonably delays the prosecution of the cause; and that to this end an injunction shoul? issue substantially in the language of the restraining order now in force.
Ex parte Court, E. D.
BYERS.
October 10, 1887.)
1.
AmURALTY-CRIMINAL JURISDICTION-FEDERAL COURTS.
2: SAME. 8. SAME.
The federal courts of Michigan have no jurisdiction {)f a felonious. assault committed upon an American vessel in t.he Detroit river. .. . The criminal jurisdiction of the federal courts does not extend to the Great Lakes and their connecting waters.
The words "upon the high seas, orin any arm or the· sea, or in any river, haven, creek, basin. or bay, within the admiralty jurisdic.tiQn of .the United States, snd out of the jurIsdiction of any particular state, "used. in.section 6346, ReV'. St. U. S., are limited to the high seas, and to the waters cpnnected immediately with them. ..
'EX PARTE BYERS.
405
4.
SAME.
Undrr the power to regulate commerce, congress may provide for the maintenance of good order and discipline, and tue punishinent of offenses committed upon American vessels, in whatever waters they may happen to be.
(Syllabus by the Oourt.)
Hearing upon Writ of Habeas Coryus. Petitioner was charged before a United States commissioner with ing committed an assault with a dangerous weapon with intent to kill one James Downs, on board the steamer Alaska, an American vessel, then navigating the Detroit river. Petitioner was examined, and committed, in defimlt of bail, to await the action of the grand jury. He thereupon petitioned for a writ of habeas'coryus, upon the ground that the commi&sioner had no jurisdiction of the offense. James J. Brown andB. T. Prenti.s, for petitioner. Oharles T. Wilkim; Asst. Dist. Atty., for the United States. BROWN, J. Practically, the only question in this case is that of jurisdiction. This question has been suggested before in several cases, but has never been squarely preseuted for adjudication in this court. The increasing frequency of crimes of this description, particularly upon excursion steamers, the inability of the state courts to deal with them, and the fact that seven other persons are now in custody or on bail for participation in this same assault, demand that it should be carefully considered and definitely settled. Jurisdiction in this case is dependent upon Rev. St. § 5346, which provides that--"Every person who, upon the high seas, or in any arm of the sea, or in any haven, creek, basin, or bay, within the admiralty 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, with a dangerous weapon, or with intent to perpetrate. any felony, commits an assault on another, shall be punished," etc.
With respect to the locality of the offense, the same language is used in numerous other sections of this chapter; although, in a few, jurisdiction is limited to the high seas alone. Upon the other hand, some of · themore recent statutes apply to offenses committed upon any American vessel, wherever she may be. It will be observed that the language of section 5346 explicitly limits the jurisdiction, so far as the waters are concerned, in two particulars: (1) They must be within the admiralty jurisdiction of the United States. (2) They must be out of the jurisdiction of any particular state. With respect to the first of these, there is no doubt that the Great Lakes and their connecting waters are within the aduliralty jurisdiction of the United States; and by this we understand the civil admiralty risdiction. This was settled in the case of The Genesee Chief, 12 How. 449, and The Eagle, 8 Will. 15, and must now be considered as beyond controversy. The exclusion of waters within the jurisdiction ot' any particnlar state,by which is meant any state in the Union, (U. B.v. Pirate8, 5 Wheat. 184,) clearly limits our authority to crimes committed
406
FEDERA,L
upon the Canadian side of the boundary line: By the act of June 15" 1836, providing for thE¥:admission of Michigan into the Union, and by a subsequentacf by which she actually became a state, the state of Michigan extends to the boundary line between Canada and the United States, along the whole length of the Detroit and St. Clair rivers. And as the jurisdiction of the state is co-extensive with her territory and with her legislative power, (U. B. v. Bevans, 3 Wheat. 336,) the state courts have, under this section, exclusive jurisdiction of all offenses committed upon this side of the middle of the channel. But as the assault in this case is charged to have been committed upon the Canadian side of the boundary line, this limitation has no effect upon our jurisdiction of this pa.rticular offense. ' . We are thellled to consider whether any portion of the Great Lakes and their connecting waters is included within the words "high seas, or river, haven,creek t basin, or bay, within the admiralty jurisdiction of the United States." That the lakes are not "high seas" is too clear for argument. These words have been employed from time immemorial to designate the ocean below low-water mark, and have rarely, if ever, been applied to interior or land-locked waters of any description. U. B. v. Wiltberger, 5 Wheat. 76; U. B. v. WilBon,3 BIatchf. 435; U. B. v. Robi.nson, 4 Mason, 307. Indeed, there is an express adjudication of this court to the effect that Lake Erie is no part of the high seas, in MiUer's Chse, 1 Brown, Adm. 156. Miller was convicted of willfully pro:uring the setting on fire of the passenger steamer Morning Star, plying between Detroit and Cleveland, upon Lake Erie. The indictment was f..amed under the act of July 29,1850, punishing'this offense when committed on the high .Seas. On motion in arrest of judgment, Judge WILKINS held that while it was within the constitutional competency of congress to define and punish this offense when committed upon other waters than the high seas, it had not done so, and the court could not take jurisdiction without an amendment to the act. The evidence in this case exhibited' a state of faqts frightful to contemplate; and yet the learned judge felt compelled to grant the motion in arrest, and discharge the prisoner. If, then,our jurisdiction in this case can be supported at all, it must be upon the theory that the Great Lakes and their connecting waters are "rivers, havens, creeks, basins, or bays," within the meaning of the act. So far as the state courts are concerned, this question was setv. Tyler, 7 Mich" tled adversely to our jurisdiction in the case of 161, decided in 1859 by the supreme court of this state. The facts were that Tyler, a deputy-marshal of this court, in endeavoring to ar,.: rest an,American vessel lying in the St.. Clair river, upon the Canadian side of the boundary line, shot the master, who was taken to Port Huron, in this state, and died there. Tyler was subsequently indicted and convicted in this court of manslaughter, under the act of 1857, which uses the same language with respect to jurisdiction as is contained' in the section of the Revised Statutes under consideration in this case. The ques-, tiouof jurisqiction was not raised, and Tyler was sentenced to 30 days' iUlpriaonmerit. At the expiration of his term he was indicted in. the
'EX PARTE' BYERS.
407
state court for nmrder, and p'eaded his former conviction in bar. The case was argued' and considered at great length, and with great ability, and the plea was held to be bad, upon the ground that tbis court bad no jurisdiction to try him. The opinion was unauimous, but different grounds were assigned by the judges for their conclusion. In the opinion of the chief justice, in a note to page 162, the words "within the admiralty jurisdiction of the United States," contained in the act of 1857, had no connection with the words in the constitution, empowering the federal courts to take cognizance of" all cases of admiralty and maritime jurisdiction," but must be read in connection with, and therefore con'trolled and limited by, the power of congress in article 1, § 8, "to define and punish piracies and felonies committed upon the high seas; and offenses against the law of nations," and therefore they applied only to offenses committed upon the high seas.. He then argued, what is perfectly obvious, that the lakes and their connecting waters are no part of the high seas. While he may have been correct in his view that the admiralty and maritime jurisdiction conferred by the constitution is exclusively a civil jurisdiction, although the authorities are not altogether harmonious, I am by no means satisfied with his further conclusion that these words, when used in the crimes act, should be limited by the 'Words quoted from artidel, § 8; or, in other words, that the power-of .congress tQ punish offenses upon navigable waters is limited to committed upon the high seas, and offeoi=les against the law 'of nations... I apprehend' that, 'underthe power "to regulatecoh1merce with foreign nations and among the several states," congress has undonbt.edly authority to protect the lives,persons, and property of crews, and shippers; and all others connected with such navigatiEYn; by penal laws. If this be not so, then the words "river, creek, basi'1'l, or bay /' used in the act, are superfluous and of no effect; and the·cases in which the federal courts have taken cognizance of crimes comtnitted in foreign and domestic waters were wrongly decided.U. S. v. RoBS) 1 Gall. 624; U. S. v. Keefe, 3 Mason, 475; U. S. v. Hamilton, 1 MiLson, 443; U. S. Stevens, 4 Wash. C. C. 547; U. S. v. Bennett, 3 Hughes, 466;U. S. v. Seagrist, 4 Blatchf. 420 . . But weare not left to conjecture upon this point. In the case 'of· U. S.v.Coombs, 12 Pet. 72, it was held that, under this grantbfpower to regulate commerce, congress had constitutional authority to ptmish the theft. of goods belonging to a vessel in distress, though such thefts were upon the shore above high-water mark. In this power, Mr. Justice STORY observed: "It d()es not stop at the mere boundary line of a state, nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. It extends to such acts done on land which interfere with, obstruct, or prevent the due exercise of the power to regulate commerce and na,vigation with foreign nations, and aPlong the states. Any offense which thus interferes with, obstructs, or prevents such commerce and navigation, though done on .land, may be punished by congress under its general authority to make all laws necessary and proper to execute their delegated constitutional powers. . ·......'We do not hesitate, therefore, to say that, in our jUdgment, the
408
FEDERAL REPORTER.
present section is properly within the constitutional authority of congress to enact; although the offense provided for may have been committed on land, pnd above high-water mark." See, also, U. S. v. Holliday, 3 Wall. 407; U. S. v. Oole, 5 McLean, If the crime be committed while the vessel is lying in aport or harbor, foreign or domestic, there is also a concurrent jurisdiction on the part of the local authorities. Wildenhus Case, 120 U. S. 1, 7 Sup. Ct. Rep. 385. The provision with respect to piracies and felonies upon the high seas was probably intended to apply to a different class of cases, viz., to crimes committea upon foreign as well as domestic vessels, which are offenses against the law of nations, and punishable wherever the offender .. is found. In the opinion of Mr. Justice CAMPBEl,L, the words of the statute should not be extended to cover an assault committed in a foreign country, unless made by one of a ship's company or passengers upon anothe.l' ·of the inhabitants of the ship. He also held thilt there was no tion of the act which, under any theory of jurisdiction, could extend it to offenses committed on the lakes, for they come within none of the terms used; and it would be a very forced .construction which would apply the statute to their connecting waters. In the opinion of Mr. Justice CHRISthe terms, "within the admiralty jurisdiction.of the United States," used in this act as descriptive of place, "must, I think, be understood to be confined to those localities where that jurisdiction is complete; where the United States have the right to exercise that jurisdiction by enforcing, upon their own vessels and citizens, at least, the observance of their laws; to places where they have the right to send their executive officers to enforce tbe laws, to prevent tbe commission of offenses, to seize the vessels, and arrest the persons offending." He concurred with Justice CAMPBELL in holding tbat it could not be supposed that "congress intended to extend the operation of any of these acts to the rivers or the connecting waters between tbe Great Lakes, and yet to exclude from their operation the lakes themselves. If they intended to exclude one, and include the others, every consideration would have induced them to include the lakes and exclude the rivers; as the lakes were vastly the more important in extent and in commerce, and bear much stronger resemblance to the ocean." He also criticised the opinion of tbe supreme court in The Genesee Chief, and combated with great force of reasoning the view of Chief Justice TANEY, that the lakes and navigable rivers of the United States were within the scope of the admiralty and maritime jurisdiction, as known and understood ill the United States when the constitution was adopted. Mr. Justice MANNING went still further, and held that the act of congress of 1845, extending the admiralty jurisdiction over the lakes, was unconstitutional and void; and devoted most of his opinion t9 Ii criticism of the case of The Genesee Ohief. While I am. unable to concur in much of the reasoning of the supreme court in the Tyl(fl' Case, I have reached practically the same cO{lclusioll
\.
EX PARTE BYERS.
409
with regard to the construction of the statute. I have no doubt of the constitutional power of congress to legislate with respect to all crimes committed upon an American vessel while navigating the lakes and their connecting waters, or any portion of them, nor, under proper acts} of our authority to take jurisdiction of offenses committed hi Canadian waters, by one of a ship's crew or passengers, upon another person lawfully upon the vessel. Indeed, I understand the opinion of Mr. Justice CAMPBELL to have been largely, though not wholly, influenced by the fact that Tyler had no connection with the vessel, and was in fact a trespasser from the moment he set foot upon it. 1u order to get at the real significationofthe words "rivers, haven, creek, basin, or bay," used in the Revised Statutes, it is instructive to recur to the original acts from which these sections were taken. This course was declared to be proper in the Revised Statutes in case of doubt, in U. S. v. B01J)Irft, construction of 100 U. S. 508, 513. These words were originally used in the eighth section of the crimes act of 1790, defining and punishing piracies, felonies, and revolts, although the words "within the admiralty jurisdiction of the United States" are not found there. At this time the lakes were far beyond the bounds of c;vilization. They possessed little, ifany, commerce, except such as was carried on by fur traders and others dealing with the Indians in bateaux and canoes, and were clearly not within-the contemplation of congress in the enactment of the act. In 1825, a new act was passed, which was subsequently incorporated into this section, in which the words of locality used were, "upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state." These words, which were also used in several other sections of the same act, were evidently copied from the act of 1790, with the addition of the words "any arm of the sea," and "within the admiralty jurisdiction of the United States," (an alteration in fact immaterial,) and should receive the same construction. The Abbotsford, 98 U. S. 440. This section was literally copied in the Revised Statutes, and nothing was added to it showing any intention on the part of congress to extend its application to waters not included within the acts of 1790 and 1825. Now, it seems incredible that, if congress had designed to extend the act of 1790 to the Great Lakes. a series of waters entirely separate, distinct, and distant from the high seas and their connection, it should not at least have inserted the word "lakes;" or have used still more explicit language to designate these interior waters. The words "haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state," following the words "high seas," seem to me very clearly to be such as are connected immediately with the high seas l and to be much the same as the words" arm of the sea," in the same section. While the word "river l ' may properly be used to designate the straits which connect Lake Huron and Lake Erie, it would be little short of absurd to impute to congress the intent t6 give criminal jurisdiction to those rivers, and not to the lakes from and into which they flow. It is equally improb-
410
able that jurisdiction should be given of crimes committed upon one sideof the boundary line, and not upon the other, when both are within the competence of the legislative body. The truth is, an act of congress is greatly needed to extend our jurisdiction to crimes committed upon American vessels navigating the lakes· and their connecting waters. A vessel bound from Buffalo to Chicago, touching at Oleveland, passes through the waters of six states, besides those of the province of Ontario, and in her transit through the Detroit and St. Olair rivers is crossing and recrossing the boundary line almost. every hour. While it maybe entirely clear a crime has been committed during the voyage,itm,aybe utterly impossible,as it was in XUlet'8(Jase, above cited, to locate the time or place, and the offense goes unpunished, because there is no court having ge.t:leral jurisdiction of the voyage and of the vessel. "If the sl1ip be American, and bound from one American port to another, .as in this case, the Canadian courts cannot. beexpected to take cognizance of crimes which, though nominally committed in Canadian waters, do not·in fact disturb the peace and dignity of her .majesty'ssubjects, However :llagrant these crimes may be, they do not concern the people of Canada. and ought to be punished by thecourts oithe country in which the v.essel is owned. . That an American vessel. is.:in reality afloa'ting parcel of American soil, is a maxim of all· writers upon the law of nations, (1 Bish. Orim. Law, § 579 j) and is recognized in the <:hae of Wildenhus, 120 U. S. 1, 7 Sup. Ct. Rep. and expressly decided in Orapo v. KeUy, 16 Wall. 610. See, also, In re Ah Sing, 13 Fed. Rep. 286. There is an additional difficulty in all these cases in the fact that the countyps welIas the state lines of the several states extend to the center of theJakes; and even iUhe particular state in·which the crime is committed can be ascertained, it is often impossible to decide within what county the trial is to be had. So far as this state is concerned. this difficulty partly though not wholly removed by 8. statutory enactment giving cqmmonjurisdiction over lakes to certain counties upon their borders; but how far such practice obtains in other states, and in the dominion of Oanada, I am not informed. So long as the laws remain as they are, crimes of the nature described in these proceedings must go unpunished, since offenders are not within the extradition treaty, even if theOanadian courts were willing to take cognizance of the. cases. But the heinous characterofthe.otfense charged in this case does not deprive the petitioner of the benefit of his exception to our jurisdiction, and I am reluctantly compelled to order his discharge.
THE NORMA.
411
KIERNAN 11. THE NORMA.
(District Court, S. D. New York. July 1, 1887.) 1. AmllRALTy-TERRITORIAL JURISDICTION-WATERS OF HUDSON RIVD-NEW YORK AND NEW JERSEY.
The limits of the jurisdiction of the federal Southern district of New York, and the district of New Jersey, over the waters of the Hudson river lying west of Manhattan island. are coincident with the boundaries of the jurisdiction of the states of New York and New Jersey over the same waterll, as settled by the agreement between New York and New Jersey, entered into Septem· ber16, 1888. and anproved by congress June 28, 1884.
2. SAME:--VESSEL AT WHARF IN JERSEY CITY.
By that agreement New Jersey retained exclusive jurisdiction over the wharves on her shore. and over all vessels fastened to such wharvell. Held, therefore. that a vessel seized by the marshal while at a wharf in Jerse:y City was attached in the district of New Jersey, outside of the Southern.dlstrict of New York, and a suit begun in the latter district by such attachment must fail for want of jurisdiction. .
Benedict, Taft & Benedict, for libelant. Hector M. Hitchings, for claimant. BROWN, J. The Norma was libeled in this court in 1881, and seized by the marshal, under process of this court, while she was, made fast, as the proof shows, to the wharf in the Morris canal basin, Jersey City. The answer alleged that the Norma was not, at the time of seizure, within thejurisdiction of this court, but within the waters of the state of New Jersey. The answer also contained a defense upon the merits. Under various decisions, up to the time when this libel was filed, the Norma was understood to be within the jurisdiction of this court, being outside of the original low-water mark of the Hudson river on the western shore. The L. W. Eaton, 9 Ben. 289; The Argo, 7 Ben. 304; Malonyv. Cay 0] Milwaukee,1 Fed. Rep. 613. In the Case of Devoe Manufg Co., 108 U. 8.401, 2 Sup. Ct. Rep. 894, the supreme court held that the territorial boundaries of the judicial districts should be held to expand or contract according to any change in the boundaries between the states, as lawfully altered from time to time; and that accordingly the agreement as to the boundaries between the states of New York and New Jersey, entered into on the sixteenth of September, 1833, and approved by congress, June 28, 1834, (see 4 St. at Large, 708,) became operative in determining the territorial limits of the jurisdiction of the federal courts of the two states. The court say, (pages 413,414:) "We are all of the opinion that, when the act of congress of 1879 declared that the New Jersey district should consist of the state of New Jersey, it intended that any territory, land or water, which should at any time, with the express asof congress, form part of state, should form part of the district lReported by Edward G. Benedict, Esq., ofthe New York bar.
