UNITED STATES v. DAVIS, 25 F. Cas. 786

STOBY, Circuit Justice. We are of opinion, that under the circumstances established in evidence, there is no jurisdiction in this cause.

The crimes act of 1790 (chapter 36, § 12), on which this indictment is founded, gives to this court jurisdiction of the crime of manslaughter only when committed “on the high seas.” We do not absolutely decide, whether the place where this offence, if any, was committed, was the high seas or not; because that might be affected by considerations of a very delicate and difficult nature, as whether it was high or low tide; for a place may at high water be the high seas, and yet at low water be strictly a part of the land, as is the case on our seashore, according to the well known doctrine in Constable’s Case, 5 Coke, 106a.

In the present case at high water, the tide of the ocean had full sweep over the place in question; and it may be matter of grave consideration, whether, if the whole reef was at the time covered with water, the whole, including the place where the schooner lay, ought not to be deemed the high seas. But on this we give no opinion.

What we found ourselves upon in this case, is, that the offence, if any, was committed, not on board of the American ship Bose; but on board of a foreign schooner belonging to inhabitants of the Society Islands, and of course, under the territorial government of the king of the Society Islands, with which kingdom we have trade, and friendly- intercourse, and which our government may be presumed (since we have a consul there) to recognize as entitled to the rights and sovereignty of an independent nation, and of course entitled to try offences committed within its territorial jurisdiction.

I say the offence was committed on board of the schooner; for although the gun was fired from the ship Bose, the shot took effect and the death happened on board of the schooner; and the act was, in contemplation of law. done where the shot took effect. So the law was settled in the case of Rex v. Coombes, 1 Leach, 388, where a person on the high seas was killed by a shot fired by a person on shore, and the offence was held to be committed on the high seas, and to be within the admiralty jurisdiction.

Of offences committed on the high seas on board of foreign vessels (not being a piratical Vessel,) but belonging to persons under the acknowledged government of a foreign country, this court has no jurisdiction under the act of 1790 (chapter 36, § 12). That was the doctrine of the, supreme court in U. S. v. Palmer, 3 Wheat. [16 U. S.] 610, and U. S. v. Klintock, 5 Wheat. [18 U. S.] 144, and U. S. v. Holmes, Id. 412; applied, it is true, to another class of cases, but in its scope embracing the present. We lay no stress on the fact that the deceased was a foreigner.

Our judgment would be the same, if he had been an American citizen. We decide the case -wholly on the ground, that the schooner was a foreign vessel, belonging to foreigners, and at the time under the acknowledged jurisdiction of a foreign government. We think, that under such- circumstances, the jurisdiction over the offence belonged to the foreign government, and not to the courts of the United States under the act of congress. UNITED STATES v. DAVIS. See Cases Nos. 3,621a and 14,820. The jury immediately returned a verdict of not guilty. NOTE.

The district judge, immediately on this acquittal, suggested for consideration, whether, under such circumstances, it was not the duty of the court to remand the prisoner to the foreign government for trial. Mr. Justice Story said, that he had never known any such authority exercised by our courts, except where the case was provided for by the stipulations of some treaty.

He had great doubts, whether, upon principles of international law, and independent of any statutable provisions, or treaty stipulations, any court of justice was either bound in duty, or authorized in its discretion, to send back any offender to a foreign government whose laws he was supposed to have violated. The district judge acquiesced in this view of the matter; and the prisoner was discharged.