§ 566. By statute in New York," when any offence shall have been committed within this State, on board of any vessel navigating any river, lake, or canal, an indictment for the same may be found in any county through which, or any part of which, such vessel may be navigated in the course of the same voyage or trip, or in the county where such voyage or trip shall terminate." 1 There are similar provisions in other States. A like statute exists also in England.3 1 § 567. We have moreover the doctrine of what is called change of venue. Therefore in England, "where an indictment has been removed into the court of king's bench by certiorari, if a case be made out which shows that the justice of the case requires it, the court will direct the trial to be had in the next adjoining county." This change of the venue is in some of our States allowed, by statute or otherwise, in proper circumstances.5 courts decided, that, where the person is taken into custody on a charge of larceny, he may be detained for bigamy, and such detaining will be an apprehension authorizing an indictment in the same court for bigamy. Rex v. Gordon, Russ. & Ry. 48. As to the construction of which, see People v. Hulse, 3 Hill, N. Y. 309; Manley v. People, 3 Seld. 295. Nash v. The State, 2 Greene, Iowa, 286; Steerman v. The State, 10 Misso. 503. 3 Stat. 7 Geo. 4, c. 64, § 13; Reg. v. Sharpe, Dears. 415, 24 Law J. N. s. M. C. 40, 29 Eng. L. & Eq. 532. 1 Stark. Crim. Plead. 2d ed. 30; Rex v. Hunt, 3 B. & Ald. 444, 2 Chit. 130; Rex v. Wilts, 6 Mod. 307. 5 Fanny v. The State, 6 Misso. 122; People v. Harris, 4 Denio, 150; People v. Webb, 1 Hill, N. Y. 179; The State v. Ware, 10 Ala. 814; Porter v. The State, 5 Misso. 538; The State v. Burris, 4 Harring. Del. 582; Innerarity v. Hitchcock, 3 Stew. & P. 9; Commonwealth v. Rolls, 2 Va. Cas. 68; Commonwealth v. Bedinger, 1 Va. Cas. 125; Commonwealth v. Wildy, 2 Va. Cas. 69; The State v. Brookshire, 2 Ala. 303; People v. Vermilyea, 7 Cow. 108; People v. Scates, 3 Scam. 351; Clark v. People, 1 Scam. 117; Findley v. The State, 5 Blackf. 576; Maton v. People, 15 III. 536; Brennan v. People, 15 Ill. 511; Moses v. The State, 11 Humph. 232. CHAPTER XLII. AS BETWEEN THE UNITED STATES AND FOREIGN NATIONS. Introduction. SECT. 568, 568 a. § 568. THE United States, composed of independent States, is still a government of itself, essentially like other governments. The States have their own local powers; but the government of the Union presents a unity in its contact with foreign nations, and exercises the same complete sway as other governments over the common highways of the world. The States are not known as nations abroad; but, at home and between themselves, they are complete, independent governments; only as they have surrendered to the general government some powers, and restricted themselves some. what, in the instrument called the Constitution of the United States. § 568 a. Looking therefore at the United States as one nation, let us consider the following matters: I. Her Territorial Limits; II. Our Government over Citizens abroad; III. Exemptions of Foreigners here; IV. Crimes both here and elsewhere committed. I. Territorial Limits of the United States. § 569. The limits and the territorial jurisdiction of the United States, viewed as one nation, depend on the law of nations, and our treaties with those governments whose possessions border upon ours. Let us see where the lines lie. $570. The law of nations determines our territorial limits on the ocean, there being no treaties concerning them. But the ocean is a common highway of nations; therefore, in reason, no nation can hold it as its own. Attempts have indeed been made, by various sovereign powers at different times, to appropriate exclusive empire over portions of the sea. These attempts have been resisted by other powers; and, down to a recent period, the question has been unsettled in international law, whether it is possible for this kind of dominion to exist. At last the doctrine is established, that no such general claim, by any one nation, can be allowed by any other. The reason is twofold: first, no one can hold such an actual and constant possession of the billows and tides of the deep, as is necessary to give either property or dominion; and, secondly, if this could be done, it would not be morally right, because the oceans, like the air, were plainly intended by God for the common use of all men.1 § 571. But there is no occasion for this common use to extend completely to the water-margin. Moreover a nation, bordering on the sea, can hold an actual possession of it as far from the shore as cannon balls will reach; while dominion to this extent is necessary for the safety of the inhabitants, who might otherwise, being neutral, be cut down in time of war by the artillery of the belligerents contending on the water. And so much of ocean, the authorities agree, is within the territorial sovereignty which controls the adjacent shores. A cannon shot is, for this purpose, estimated at a 1 Wheaton International Law, 6th ed. 248; Flanders Maritime Law, § 38, 40; 1 Kent Com. 26; The Twee Gebroeders, 3 Rob. Adm. 336, in which case, however, Lord Stowell said: "There may, by legal possibility, exist a peculiar property, excluding the universal or common use. Portions of the sea are prescribed for." Yet even if we admit this possible doctrine, we may doubt its applicability to any part of our own coasts. marine league,1 which is a little short of three and a half of our English miles; or, exactly, 3.4517. The true measurement would seem to be from low-water mark, and from the actual shore, not from the shoals. But if there are islands, too near for the water between them and the mainland to be common sea, the measurement outward must be from them. They need not be inhabitable; for, if they are of sand or rock, and especially if sufficient to sustain fortifications, they come within the rule.3 § 572. We shall see, further on, that coves and harbors and other arms of the sea, so narrow that the naked eye may reasonably discern objects on the opposite bank, are within the bodies of counties, -a different matter from what we are here considering. Of course such places are a part of the territory of the country. But beyond this doctrine it is clear, that, if a gulf or bay puts up, and the distance across it, where it joins the ocean, does not exceed two marine leagues, which is one league from each of the opposite shores to the centre, it is a part of the country in which it lies; and, sup posing the land girding it to belong to one nation, the whole' of it, thus cut off from the main waters, whatever its breadth further up, is the proper territory of such nation.5 Pretty clearly also, the doctrine as to such places extends even fur ther; though it is difficult to say how far. Thus the Chesapeake Bay, which is twelve miles across at the ocean; and 1 The Ann, 1 Gallis. 62; The Twee Gebroeders, 3 Rob. Adm. 336; Rex v. Forty-nine Casks of Brandy, 3 Hag. Adm. 257, 289, 290; The Anna, 5 Rob. Adm. 373; 1 Kent Com. 29; Wheaton International Law, 6th ed. 233, 234, 245, 496. Soult v. Le Africaine, Bee, 204; Rex v. Forty-nine Casks of Brandy, 3 Hag. Adm. 257, 289. 3 The Anna, 5 Rob. Adm. 373, 385 c. * Post, § 605. 5 Wheaton International Law, 6th ed. 248, 249, 252; Flanders Maritime Law, § 42. • Commonwealth v. Gaines, 2 Va. Cas. 172. the Delaware Bay,1 which is a little more;2 are claimed, no doubt justly, to be within the territorial limits of the United States. Though vessels may pass up such places, beyond the reach of cannon balls, yet, since they cannot, having passed up, enter the harbors without consent, they have no occasion thus to pass; and so there cannot be pleaded for such places that common necessity which makes the outer ocean the common highway of nations. In this particular, and in the fact that the repose of the adjacent country may be more menaced within those localities than on the open ocean at equal distance from the shore, we see a difference, well justifying a departure from the general rule. § 573. Thus far we have been speaking of that perfect territorial sovereignty, which, in the language of Marshall, C. J., "is necessarily exclusive and absolute, susceptible of no limitation not imposed by itself." Over waters within this sovereignty, though the vessels of all nations are in the habit of passing under an implied license, they have no right to pass if the license is revoked. Outside of these lines there may be, sometimes is, exercised a sort of cautionary, quia timet jurisdiction, for the safety of the country, and for preventing infractions of its laws, hardly allowable at points still further in the ocean. Thus, observes Chancellor Kent: "The statute 9 Geo. 2, c. 35, prohibited foreign goods to be transshipped within four leagues of the coast without payment of dues; and the act of congress of March 2, 1799, c. 128, § 25, 26, 27, 99, contained the same prohibition; and the exercise of jurisdiction, to that distance, for the safety and protection of the revenue laws, was declared by the supreme court in Church v. Hubbart, to be conformable to the laws and usages 1 1 Kent Com. 29. The distance is stated differently in the books which I have consulted; some putting it at but a fraction over twelve miles, others as high as eighteen; and I have not at hand the means of settling the question. 8 3 Schooner Exchange v. McFaddon, 7 Cranch, 116. Church v. Hubbart, 2 Cranch, 187. |