John M. Binckley to Leander Holmes, 4 November 1867

November 4, 1867. Leander Holmes, Esq. United States Dist. Attorney, Vancouver, Washington, Terr. Sir: In your communication of the 9th ultimo, you state that on board a vessel called the "Vidette," while she was lying at anchor below low-water mark, in Puget's Sound, an arm of the sea, at a point near the Island of Comano, in Washington Territory, one of her seamen killed another, for which he has been indicted, both in the Territorial and the National Courts, and your object is to procure advice upon the question of jurisdiction. You state, also, that two islands, of which one is Comano aforesaid, have been erected into the "County of Island," by the Territorial Legislature. You are understood to say that the homicide was committed within the boundaries of said county. There may, however, be a question on this point, but if so you have not definitely stated it. I assume, therefore, that the waters in which the vessel lay are within the body of Island County. You add that the accused has been tried in the Territorial Court of criminal cognizance, but the question of jurisdiction involved in the prosecution has been carried to the Supreme Court of the Territory for hearing in December: and that, in your opinion, the national court has exclusive jurisdiction in the premises, chiefly on the ground, as you are apprehended, that the place of the homicide was "out of the jurisdiction of any particular State." In the first place the Attorney General declines to undertake a decision of the question, since it has actually arisen for solution before a competent judicial tribunal, either upon the one indictment, or else upon the other. But he has directed me to furnish you with such data and suggestions as a cursory examination of the question may afford, which I cheerfully but hastily do, for your convenience. The Constitution, Article 3, Section 2, extends the judicial power of the United States "to all cases of admiralty and maritime jurisdiction." This "judicial power" is not the same which the United States exercises through the Territorial Courts, the latter being a species of power incident to the Legislative power of the United States. 1 Peters, 546. To that extent, then, the jurisdiction is discriminated in the Territories in the manner of the discrimination of State from United States Courts. The Act of Congress of 30 April, 1790 Section 8, Brightley's Digest, 207, provides that if "any person or persons shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death," etc.—and the clause concludes thus: "and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State shall be in the District where the offender is apprehended, or into which he may first be brought." Your principal doubt appears to be, whether the word "State" is not to be taken strictly, so that a murder committed within an organized Territory would be held to be a murder committed "out of the jurisdiction of any particular State." If such Territory were unorganized, the case would not be doubtful. But where Congress has erected a government in a Territory, though, as a body politic, it has not yet become a State, the question would be, how far the limitation of the Act of 1790, which was evidently in deference to the constitutional sovereignty of the States of the Union, was succeeded by whatever provisions of the organic Act imparted State powers for criminal purposes to the government of the Territory. The United States Courts could not have had jurisdiction had this homicide been committed in Boston harbor, instead of Island county in your Territory, because in the case of the United States vs. Bevans, 3 Wheaton, 387, Chief Justice Marshall, upon elaborate argument, pronounced the decision to that effect of the Supreme Court, upon a case strikingly analagous​ , in the facts, as you are understood. But the principal ground for denying the Federal jurisdiction in that case was, that the ancient jurisdiction of Massachusetts had never been ceded to the United States by that State. Another ground was, that if it had been so ceded, by the adoption of that State of the consitutional clause above quoted, the Act of Congress did not exercise the power. The absence of the question of an adverse sovereign jurisdiction in the present case, renders the reasoning of the Bevans case inconclusive. But, on the other hand, by Section 6 of the Act of 3 March 1853, the "Legislative powers of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of "the United States," with exceptions not applicable to this inquiry. The remainder of the provisions of the Statute, including those for Territorial Courts, and their jurisdiction, corresponds in extent with this grant of power, 10 Stat. 172, et seq. Also, by section 12 of the same Act, previous legislation for, and the local statutes of, Oregon, are substantially reënacted. Among the questions, therefore, which a discussion of this case would involve before the court, would probably be, whether, taking the Acts of Congress imparting State powers, for limited purposes, to the Territory of Washington, in connection with the 8 Section of the Act of 1790, referred to, the words "jurisdiction of a particular State," would not be construed to mean, in the present case, "out of the jurisdiction of any particular State, or of any Territory constitutionally exercising the powers of a State, for the punishment of the crimes provided for in the Act." The distinction between the powers of the Courts of the District of Columbia in admiralty and maritime jurisdiction, and in other cases, is clearly distinguished, though the examples are less applicable, since the only government in that territory is that of the United States. See Jecker vs. Montgomery, 13 How. 498; 18 How. 110; etc. The power of governing a territory belonging to the United States "may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States." Marshall, C. J., in American Ins. Co. vs. Canter, 1 Peters, 542. This language is noticeable chiefly from its coincidence with the words of the criminal statute of 1790, and with the principle governing the Bevans decision. On the one hand, the limitation "out of the jurisdiction of any particular State," in the statute, may the viewed as only declaratory of a right of exclusion by the State, so that the Statute might mean "on the high seas, or any where below low-water mark, etc. subject to constitutional restrictions upon the powers of the United States," and this view would agree with, though not be authorized by, the Bevans decision; while, on the other hand, the word "state" in the statute would probably be construed as equivalent to "District of Columbia," should a murder be committed on the Potomac river within the county of Washington and District of Columbia, and the question raised whether it was cognizable by the judicature of the District of Columbia, sitting as a local criminal Court, or as the District Court of the United State for the District. In both territories, the power of the United States is the only power, and however a statute may be restrained in a State by its power, the same statute would be unrestrained in a Territory, unless by its own terms. If the restrictive clause in question, however, is only declaratory as to the States, then, it is locally inapplicable to the Territories, and consequently the statute would be in force, without the restriction, in the several Territories. But though that restriction might disappear, the powers imparted by the organic acts of Congress would necessarily come in to qualify the statute, in turn, and if they gave the Territorial government the powers usually exercised by States for the punishment of crime, with courts coextensive in jurisdiction, there would seem to be very strong reasons for expecting that in the case in hand, the Territory of Washington would be deemed to have a jurisdiction like that of a "particular State" in the sense of the Act of 1790. The word "State," in the Constitution, has frequently been construed to include the District of Columbia and the Territories. In the sense, for example, of the Constitutional provisions for uniformity of taxation; for requiring capitation, or other direct taxes, to correspond with the census; and that representatives, and direct taxes, should be apportioned correlatively to each other. See Loughborough vs. Blabe, 5 Wheaton, 317. But state citizenship, as giving judicial jurisdiction, excludes the District of Columbia, and the Territories. Hepburn vs. Winter, 1 Wheaton, 91. The questions, then, which arise in this case appear to go no deeper than to an inquiry which judicature of the United States shall have cognizance of the crime, the fact that it was mediately or immediately committed against the United States not being in question, as it was in the Boston case; and that inquiry may possibly be met by taking the clause of the Act of 1790 which provides for an adjudication (rather than the clause which defines the crime,) and viewing it in connection with the organic acts of the Territory, as in pari materia, treating the restriction as to the "State," as locally inapplicable in any other sense than that in which an organized Territory is a State, for the punishment of crime. See also, Curtis' Comm. p. 33, et seq. The Attorney General expresses his concurrence in these suggestions, in which, of course, I have withheld expressions of opinion. Very respectfully, Your obd't servant J. M. Binckley, Assistant Attorney Gen'l.