UNITED STATES v. McGILL, 26 F. Cas. 1088

PETERS, District Judge. It is a general rule with me, to abstain from the exercise of jurisdiction, whenever I doubt my authority to exercise it. On the present occasion, it is not necessary to give an opinion, whether the present is a case of admiralty and maritime jurisdiction, upon the general principles of the admiralty and maritime law; for, confining myself to the 8th

section of the penal act, I find sufficient to decide, that, at all events, it is not a case within the jurisdiction of this court. The court can only take cognizance of a murder committed on the high seas; and as murder consists in both the stroke and the consequent death, both parts of the crime must happen on the high seas to give jurisdiction; not one

part in the high seas, and another

part in a foreign country. WASHINGTON, Circuit Justice (charging jury). The point, principally, urged by the prisoner’s counsel, is so clear, that it can receive little elucidation from argument. The offence, of which we have cognizance, is murder committed on the high seas. Now, murder is a technical term, of known and settled meaning; and, when used by the legislature, it imports the same, as if they had said, that the court shall have jurisdiction, in a case of felonious killing upon the high seas.

We have no doubt, therefore, that the death, as well as the mortal stroke, must happen on the high seas, to constitute a murder there. But the more important question is, whether the present case remains unprovided for, by the laws of the United States? The -judicial act gives jurisdiction to the circuit court, of “all crimes and offences, cognizable under the authority of the United States.” 1 vol. 55, § 11.

There are, undoubtedly, in my opinion, many crimes and offences against the authority of the United States, which have not been specially defined by law; for, I have often decided, that the federal courts have a common law jurisdiction in criminal eases: and in order to ascertain the authority of the United States, independent of acts of congress, against which crimes may be committed, we have been properly referred to the constitutional provision, that “the judicial power shall extend to all cases of admiralty and maritime jurisdiction.” But still the question recurs, is this a case of admiralty and maritime jurisdiction, within the meaning of the constitution?

The words of the constitution must be taken to refer to the admiralty and maritime jurisdiction of England (from whose code and practice, we derive our systems of jurisprudence, and, generally speaking, obtain the best glossary) but no case, no authority, has been produced to show, that in England such a prosecution would be sustained (independent of acts of parliament) as a cause of admiralty and maritime jurisdiction.

Nor, am I disposed to consider the doctrine of the civil law, which has been mentioned, as furnishing a guide, to escape from the silence of our own code, as well as of the English code, upon the subject. Upon the whole, therefore, I am of opinion, that the present is a case omitted in the law; and that the indictment cannot be sustained. It is some relief to my mind, however, that I have no doubt of the power of congress to provide for such a case.

It is true, that it would be inconsistent with common law notions to call it murder; but congress, exercising the constitutional power to define felonies on the high seas, may certainly provide, that a mortal stroke on the high seas, wherever the death may happen, shall be adjudged to be a felony. Upon this charge, the jury immediately acquitted the prisoner.