Shortly stated, the contention is, that the haven or arm of the Pacific Ocean which constitutes the harbor of Honolulu, although "within the admiralty and maritime jurisdiction of the United States," is a locality not "out of the jurisdiction of any particular State," because within the jurisdiction of the Territory of Hawaii. The basis for the contention is that the words, "out of the jurisdiction of any particular State," do not refer to the jurisdiction of a State of the United States, but are to be given the wider meaning of out of the jurisdiction of any separate political community, and that the Territory of Hawaii constitutes such a political organism. The postulate cannot be conceded. The Crimes Act of April 30, 1790, ch. 9, yol. 1, Statutes at Large, p. 112, contained the same limiting words. Thus in the eighth section of that act jurisdiction was asserted over the crime of murder, as well as certain other crimes, when committed "upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular State." The act was remolded by the act of March 3, 1825, ch. 65, § 4, p. 115, 4 Statutes at Large. The further limitation of "within the admiralty and maritime jurisdiction of the United States" was added, but otherwise the jurisdiction remained the same. Without substantial change the provision of the last act was carried into the Revised Statutes as part of § 5339.

To support the contention urged counsel have cited United States v. Bevans, 3 Wheat. 337, 388, and Talbott v.. Silver Bow County, 139 U. S. 438, 444. The indictment in the Bevans case was for a murder done on board a war vessel of the United States while she lay at anchor a mile or more from the shores of the bay constituting the harbor of Boston, in the State of Massachusetts. The bay was wholly within the territorial jurisdiction of the State of Massachusetts, and the court said that it was not material whether the courts of that State had cognizance of the offense or not.. "To bring the offense," said the court, "within the jurisdiction of the courts of the Union, it must have been committed in a river, etc., and out of the jurisdiction of any State. It is not the offense committed, but the VOL. CCXVII-16

bay in which it is committed, which must be out of the jurisdiction of the State. If then it should be true that Massachusetts can take no cognizance of the offense; yet unless the place itself be out of her jurisdiction, congress has not given cognizance of that offense to its courts. If there be common jurisdiction, the crime cannot be punished in the courts of the Union." The case has no bearing upon the question here involved, except so far as that the jurisdiction of the courts of the United States was there held to be excluded, because the place where the offense was committed was within the territorial jurisdiction of one of the States of the Union. The question in the Talbott case was whether a Territory was within the meaning of § 5219, Rev. Stat., which permitted a "State within which" a national bank is located to tax its shares. The court held that the permission extended to States in that regard included Territories. The decision was based upon the obvious intent of Congress looking to the scope and purpose of the act; the court saying, among other things, "While the word State is often used in contradistinction to Territory, yet in its general public sense, and as sometimes used in the statutes and the proceedings of the Government, it has the larger meaning of any separate political community, including therein the District of Columbia, and the Territories as well as those political communities known as States of the Union." But the word "State," as used in the eighth section of the act of 1790, and the subsequent act of 1825, as well as used in § 5339, Rev. Stat., must be determined from its own context. The word State as there used has been uniformly held as referring only to the territorial jurisdiction of one of the United States, and not to any other government or political community. Thus, in United States v. Ross, 1 Gall. 626, Mr. Justice Story said, in reference to the words in § 4 of the act of 1825, above referred to, that "The additional words of the act, 'in any river, haven, basin, or bay out of the jurisdiction of any particular State,' refer to such places without any of the United States, and not without foreign States, as will be very clear on examining the pro

vision as to the place of trial, in the close of the same section.' In United States v. Brailsford, 5 Wheat. 184, 189, 200, one of the questions certified was "whether the words, 'out of the jurisdiction of any particular State,' in the eighth section of the act of Congress of the 30th of April, 1790, ch. 9, vol. 1, Statutes at Large, must be construed to mean out of the jurisdiction of any particular State of the United States?" To this' the court said: "We think it obvious that out of any particular State must be construed to mean 'out of any one of the United States.' By examining the context it will be seen that particular State is uniformly used in contradistinction to United States." In United States v. Rodgers, 150 U. S. 249, 265, the same meaning was attached to the words in question, and an offense committed on the Detroit River, on a vessel belonging to a citizen of the United States, was held cognizable by the District Court of the United States for the Eastern District of Michigan, although it appeared that the offense had been committed within the territorial limits of the Dominion of Canada, and therefore not within the jurisdiction of any particular State of the United States. See also St. Clair v. United States, 154 U. S. 134, 144, and Andersen v. United States, 170 U. S. 489.

That there existed an organized political community in the Hawaiian Islands, exercising political, civil and penal jurisdiction throughout what now constitutes the Territory of Hawaii, including jurisdiction over the bay or haven in question, when that Territory was acquired under the joint resolution of Congress of July 7, 1898, did not prevent the operation of § 5339, Rev. Stat. That "political community" did not constitute one of the States of the United States; and if the other jurisdictional facts existed, § 5339 came at once into operation.

Unless, therefore, there was something in the legislation of Congress found in the act of April 30, 1900, c. 339, 31 Stat 141, providing a government for the Territory of Hawaii, which excluded the operation of the statute, the jurisdiction of the courts of the United States over the bay here in question

in respect of the murder there charged to have been coinmitted, was beyond question.

Counsel have cited and relied upon the fifth, sixth and seventh sections of the organic act referred to, in connection with §§ 83, 84, 89 and 91, as operating to leave intact the jurisdiction of the territorial courts of the Territory under existing penal laws over this "haven" or "arm" of the sea in respect to homicides there committed. The fifth section of the organic act referred to provided, "That the Constitution, and except as herein otherwise provided, all the laws of the United States, which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States." The sixth section continued in force the laws of Hawaii "not inconsistent with the Constitution or laws of the United States, or the provisions of this act; ... subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States." The seventh section expressly repeals a long list of local laws, civil and criminal, and does not expressly include the chapter of the penal laws of Hawaii of 1897 relating to homicides. The eighty-first section vests the judicial power of the Territory in one Supreme Court and such inferior courts as the legislature may establish, and continues in force the laws of Hawaii concerning the jurisdiction and procedure of such courts, "except as herein provided." Section 83 continues in force the laws of Hawaii relating to the judicial department, including civil and criminal procedure, subject to modification by Congress or the legislature. Section 89 provides that the control of wharves and landings constructed by the Republic of Hawaii, on any seacoast, bay or harbor, shall remain under the control of the government of the Territory of Hawaii. Section 91 leaves public property, which had been ceded to the United States, under the control of the government of the Territory.

We cannot see that any of the things referred to have the effect claimed for them. The plain purpose of the fifth section was to extend the Constitution and laws of the United States,

not locally inapplicable, to the Territory, and of the sixth section, to leave in force the laws of Hawaii, except as repealed by the act or inconsistent with the Constitution or laws of the United States.

If, when that act was passed, one who committed murder in the harbor of Honolulu was subject to trial in the courts of the United States, though within the territorial waters of Hawaii, the organic act neither expressly nor impliedly deprives the courts of the Union of the jurisdiction which they had before. It was within the power of Congress to confer upon its courts exclusive jurisdiction over all offenses committed within the Territory, whether on land or water. This it did not elect to exercise. It provided for the establishment of a District Court of the United States, with all of the powers and jurisdiction of a District Court and of a Circuit Court of the United States. It provided also for the organization of local courts with the jurisdiction conferred by the existing laws of Hawaii upon its local courts, except as such laws were in conflict with the act itself or the Constitution and laws of the United States. If it be true, as claimed, that the territorial courts exercise jurisdiction over homicides in the harbor of Honolulu, under and by virtue of the laws of Hawaii thus continued in force, it only establishes that there may be concurrent jurisdiction in respect of certain crimes when committed in certain places, and is far from establishing that the courts of the Union have been deprived of a jurisdiction which they have at all times claimed and exercised over certain offenses when committed upon the high seas, or in any arm of the sea, or in any river, basin, haven, creek or bay within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

We find nothing in the special legislation applicable to that Territory which prevented the operation of § 5339.

There are assignments touching the competency of certain evidence relied upon to establish the national character of the Rosecrans, and others which challenge the sufficiency of the