{ "id": 236679, "name": "The United States vs. Moses Terrel, a Cherokee Indian", "name_abbreviation": "United States v. Terrel", "decision_date": "1840-04", "docket_number": "", "first_page": "411", "last_page": "422", "citations": [ { "type": "official", "cite": "1 Ark. Terr. Rep. 411" } ], "court": { "name_abbreviation": "Ark. Cir. Ct.", "id": 9036, "name": "Arkansas Circuit Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "3 Wheat. 631", "category": "reporters:scotus_early", "reporter": "Wheat.", "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "3 Wheat. 627", "category": "reporters:scotus_early", "reporter": "Wheat.", "opinion_index": 0 }, { "cite": "5 Wheat. 153", "category": "reporters:scotus_early", "reporter": "Wheat.", "case_ids": [ 1442073 ], "opinion_index": 0, "case_paths": [ "/us/18/0153-01" ] }, { "cite": "3 Just. 113", "category": "reporters:state", "reporter": "Just.", "opinion_index": 0 }, { "cite": "3 Wheat. 386", "category": "reporters:scotus_early", "reporter": "Wheat.", "weight": 2, "opinion_index": 0 }, { "cite": "1 Stat. 112", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "7 Cranch, 32", "category": "reporters:scotus_early", "reporter": "Cranch,", "case_ids": [ 572722 ], "opinion_index": 0, "case_paths": [ "/us/11/0032-01" ] } ], "analysis": { "cardinality": 875, "char_count": 33502, "ocr_confidence": 0.438, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.009143004090199853 }, "sha256": "ccf3f308b3006f5bbd84bb998747641e815afd17fda586b985910cddf8019dea", "simhash": "1:f3a55eae8f8824c5", "word_count": 5849 }, "last_updated": "2023-07-14T20:05:42.619619+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The United States vs. Moses Terrel, a Cherokee Indian." ], "opinions": [ { "text": "The indictment charged in proper form that Moses Terrel, a Cherokee Indian, on the 29th of November, 1839, in the Indian country west of Arkansas, feloniously assaulted John Ballard, a white man, \u201c and in bodily fear and danger of his life then and there feloniously did put the said John Ballard, and one bowie-knife of the value of ten dollars, one pocket-knife of the value of fifty cents, and one pistol of the value of ten dollars, the goods and chattels of the said John Ballard, from the person and against the will of the said John Ballard then and there feloniously and violently did steal, take, and carry away.\u201d The defendant plead not guilty, and the case was tried before the Hon. Benjamin Johnson, district judge, holding the circuit court: William C. Scott, district attorney, for the United States; F. W. Trapnall and John W. Cocke, for the defendant.\nThe jury found the defendant guilty in manner and form as alleged in the indictment, and he filed- a motion in arrest of judgment, on the principal ground that there was no law of congress punishing robbery committed on land, and that the court had no jurisdiction of the offence; and this motion was argued by the counsel respectively.\nThe Court said, it was not to be doubted that the only authority which this court had to try and punish offences was derived from acts of congress ;, for although the courts of the United.-States might, in the absence of statutory provisions, look to the common law for rules to guide them in the exercise of their powers, in criminal as well as civil causes^ yet it is to the statutes of the United States, enacted in pursuance of the constitution, that these courts must resort to- determine what constitutes an offence against the United States, and whether committed on the land or the \u201c high seas,\u201d The United States have no unwritten criminal code, to which resort can be had as a source of jurisdiction, but as was said in The United States v. Hudson (7 Cranch, 32; 2 Cond. Rep. 406), \u201cthe legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence,\u201d before cognizance can be taken of it.\nReferring to the statutes of the United States to ascertain what offences on land are punishable, it will be perceived that they are few, and that the crime of robbery is not among them. This is an indictment for robbery. Of larceny, this court has cognizance (Gordon\u2019s Digest, 939); and although it is true that every robbery includes a larceny, yet it would be quite impossible to uphold this proceeding on that ground, because the indictment is for the crime of robbery as such, and the finding of the jury, responsive to it, is that the defendant is guilty in manner and form as charged in the indictment. There is no alternative after verdict but to treat it as a case of robbery. Doubtless the party might have been legally indicted and found guilty of larceny; but of robbery, as such, this court has no jurisdicdiction, and judgment must be arrested.\nJudgment arrested.\nThis decision is sustained by an able opinion of Judge Wells, district judge of Missouri, reported in 1 Western Law Journal, 246, and on account of its bearing on the question, and general interest, is here transcribed at length.\nAt a circuit court of the United States, for the District of Missouri, held at Jefferson City in September, 1843, the lion. Robert W. Wells, district judge, presiding, absent Catron, associate judge of the supreme court; the grand jury appeared in court and requested the answer of the court to the following inquiry : \u201c Is robbery, when committed in the Indian country, indictable as such, and punishable with death ? \u201d The court informed the jury that it could only be indicted and punished as a larceny; and Judge Wells, holding the court, gave the following written opinion: \u2014\nIs robbery committed in the Indian country attached to the District of Missouri a crime indictable as such, and punishable with death ?\nThe 25th section of the act of 1834, \u201c to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers,\u201d provides, \u201c that so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country.\u201d\nIf robbery committed in \u201c a place within the sole and exclusive jurisdiction of the United States,\u201d be punishable with death, then, if committed in the Indian country, it is also punished with death, and not otherwise.\nThe 16th clause of the 8th section of the 1st article of the constitution provides that congress shall have power \u201c to exercise exclusive legislation in all cases whatsoever over such district, not exceeding ten miles square, as may by cession of the particular States and the acceptance by congress become the seat of government of the United States, and to exercise the like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.\u201d Here is a grant of \u201c exclusive legislation \u201d which is jurisdiction, and here we are to look for the grant of sole and exclusive jurisdiction as to places, to the United States. United States v. Bevans, 3 Wheaton, 386.\nThe 3d section of the act of 1790, \u201cfor the punishment of certain crimes against the United States,\u201d (1 Stat. 112) provides, \u201c that if any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons, on being thereof convicted shall suffer death.\u201d Other sections provide for other offences committed in the same places, but nowhere provide for the crime of robbery committed in those places, that is, in \u201c forts, arsenals, dockyards, magazines, or in any other place or district of country within the sole and exclusive jurisdiction of the United States.\u201d\nHere is the exercise by congress of the grant of exclusive jurisdiction, \u201c as to places,\u201d given by the clause of the constitution above cited; and the terms, \u201c any other place or district of country,\u201d refer to territorial objects of a similar character to those enumerated. United States v. Bevans, supra.\nThe constitution (art. 1, sect. 8) gives congress the power \u201cto define and punish piracies and felonies committed on the high seas, and other offences against the law of nations.\u201d Here there is no grant of sole and exclusive jurisdiction as to place; for everybody knows that the high seas are common to all nations, and that every nation punishes crimes committed thereon. 1 Kent, 186, 187.\n\u201c The judicial power shall extend to all cases of admiralty and maritime jurisdiction.\u201d Const, art. 3, sect. 2. Here is no grant of sole and exclusive jurisdiction as to place, although there may bo as to certain crimes. United Stales v. Bevans, supra, is in point, and Chief Justice Marshall, in delivering the opinion of the court in that case, says: \u2014 \u201c Can the cession of admiralty and maritime jurisdiction be construed into a cession of the waters on which these cases may arise ? This is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory, or of general jurisdiction. It is obviously designed for other purposes. It is in the 8th section of the 1st article we are to look for cessions of territory and of exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.\u201d\nIn extending the judicial power in all cases of admiralty and maritime jurisdiction, the 8th section of the act of 1790 provides, \u201c that if any person or persons shall commit upon the high seas, or upon 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; or if any captain or mariner of any ship or vessel shall piratically or feloniously run away with such ship or vessel, or any goods or merchandise, to the value of fifty dollars (the section enumerates other piracies), every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death. 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 be first brought\u201d 1 Stat.\nThis is the section which it is alleged is in force in the Indian country, and by the provisions of which it is said robbery there committed is punishable with death.\nIf the places mentioned in this section be within the sole and exclusive jurisdiction of the United States, then it is in force in the Indian country. But it is the place, and not the crime, which is required to be within the sole and exclusive, jurisdiction of the United States.\nIf this 8th section be but the exercise by congress of the power of extending the judicial power to all cases of admiralty and maritime jurisdiction, the matter, as I conceive, is decided by the case of the United States v. Bevans (3 Wheat. 386), above alluded to; for if, as shown, that grant of power was not intended to give exclusive jurisdiction as to places, then congress could not extend it to that length. And if it be not founded on that power, I confess I am wholly at a loss to know on what clause or provision of the constitution it is based; for, as already shown, if founded on the power to define and punish piracies and felonies on the high seas, and other offences against the law of nar tions, it would bo absurd to claim the solo and exclusive jurisdiction as to the place there mentioned, that is, the high seas.\nBut I think it can be shown that the 8th section of the act of 1790 was not intended by congress to apply to any crimes but piracies; that none of the places mentioned in that section are within the sole and exclusive jurisdiction of the United States, or so declared to be; and that the 25th section of the act of 1834 meant, by \u201c any place within the sole and exclusive jurisdiction of the United States, and the laws for the punishment of offences committed therein,\u201d the forts, arsenals, magazines, dockyards, and other needful buildings, and the provisions of the act of 1790 applicable thereto.\nThe crime of robbery, as already mentioned, is not included in any of the provisions for the punishment of crimes committed in \u201c any fort, arsenal, magazine, dockyard, or other place within the sole and exclusive jurisdiction of the United States.\u201d\nLarceny is included, and I presume every robbery includes a larceny. But larceny is not punishable by these provisions with death.\nIn no part of the act of 1790 are \u201c the high seas, or rivers, havens, basins, or hays, out of the jurisdiction of any particular State,\u201d spoken of, considered, or treated as places within the sole and exclusive jurisdiction of the United States; whereas the forts, arsenals, magazines and dockyards, places on land, are always enumerated and spoken of as the places within the sole and exclusive jurisdiction of the United States.\nNor are the rivers, havens, basins, or bays, out of the jurisdiction of any particular State, ever spoken of as including the internal watercourses of our territories, or of any country, but always as the seas or the high seas, which would wholly exclude the idea of their being internal waters. Thus the 6th section provides for the punishment of misprision of felony \u201c upon the high seas, or within any fort, arsenal, dockyard, magazine, or other place or district of country under the sole and exclusive jurisdiction of the United States.\u201d The 7th section provides for the punishment of manslaughter, when committed in any \u201c fort, arsenal, dockyard, or other place or district of country under the sole and exclusive jurisdiction of the United States.\u201d The 8th section provides for the punishment of piracy, which includes murder, robbery, &c., \u201c upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State.\u201d The 9th section provides for the punishment of any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, by a citizen of the United States, under color of a commission from a foreign State, &c., \u201c upon the high seas.\u201d The 10th section provides for the punishment of accessories \u201cupon the land or the seas.\u201d The 11th section provides for the punishment of accessories after the fact \u201c upon the land or at sea.\u201d The 12th section provides for the punishment of manslaughter \u201c upon the high seas.\u201d The 13th section provides for the punishment of maiming \u201cwithin any of the places upon land under the sole and exclusive jurisdiction of the United States, or upon the high seas.\u201d The 15th section provides for the punishment of larceny and other offences \u201c within any of the places under the sole and exclusive jurisdiction of the United States, or upon the high seas.\u201d\nIt will thus be seen, the \u201c rivers, harbors, basins, and bays out of the jurisdiction of any particular State,\u201d \u201cthe high seas,\u201d \u201cat sea,\u201d &c., in all this statute, seem to mean the same thing. And this is the English statute law and common law. For rivers, harbors, basins, bays, &c. out of the limits of any particular country, ai\u2019o generally denominated \u201chigh seas\u201d or \u201csea\u201d (2 Chitty\u2019s Crim. L. 891, 1127; 2 Hale, 12, 16), and are within the admiralty jurisdiction. Not but that there is a distinction, correctly speaking, between \u201c high seas\u201d .and \u201c seas,\u201d but the distinction is nice, and not frequently attended to.\nThe supreme court has decided, however, that manslaughter, committed in a foreign river above the forts, cannot be punished under the 12th section.\nIndeed to me it is manifest that congress so understood it, because if the terms \u201c seas,\u201d \u201c high seas,\u201d and \u201c at sea,\u201d do not embrace the \u201c rivers, harbors, basins, and bays within the jurisdiction of any particular State,\u201d then there is no punishment for many offences committed in those rivers, basins, harbors, and bays out of the jurisdiction of any particular State, which are yet punishable when committed at sea or on land. Thus it is with maiming, in section 13, which is punishable if committed \u201c within any of the places upon land within the sole and exclusive jurisdiction of the United States, or upon the high seas; \u201d so also of the offences specified in sections 10 and 11. The declaring an offence to be piracy, which is done in the 8th section, or robbery, would of itself show that it must be committed on the seas. \u201c The word itself is derived from a Greek word which signifies to pass over the sea, and refers rather to a place than a specific crime.\u201d 2 Chitty\u2019s Crim. L. 1127; 3 Just. 113. And the crime, both by the laws of England and America, and by the law of nations, is defined to be \u201c robbery, or forcible depredation on the sea, animo furandi.\u201d 4 Bl. Com. 71; United States v. Smith, 5 Wheat. 153; The United States v. Furlong, Ib. 184; 1 Kent\u2019s Com. 183.\nIn England, the mouths of great rivers without the limits of any county, where the sea ebbs and flows, are considered as part of the sea, and within the admiralty jurisdiction. 2 Hale, 12, 16.\nI think it manifest, from what has been said, that the 8th section of the act of 1790, and which declares robbery, when committed on the high seas, or in any river, basin, or bay, without the limits of any particular State, to be piracy, applies only to the various parts of the sea, and not to any internal rivers or waters, whether in our own territories, the States, or foreign States. It may be said that the words of the act, \u201c any river, haven, basin, or bay, without the limits of any particular State,\u201d would apply to a river and those waters within the interior of our territories, and so they would; and would also apply to those in the interior of any foreign kingdom; yet no person has ever contended that it was to be so construed.\nThis is further illustrated by the act of 15th May, 1820, the 3d section of which provides, that if any person upon the high seas, or upon any open road-stead, or in any haven, basin, or bay, or in any river where the sea- ebbs and flows, commit the crime of robbery in and upon any vessel, he shall be adjudged a pirate. This shows the sense of the legislature, as to the parts of a river in which piracy can be committed, that is to say, where the sea ebbs and flows.\nThe courts of the United States have never claimed any sole and exclusive jurisdiction as to the place under the 8th section of the act of 1790, or under that clause of the constitution which declares that the judicial power shall extend to all cases of admiralty and maritime jurisdiction, but, on the contrary, have expressly disclaimed. United States v. Bevans, 3 Wheat. 386.\nI need not cite authorities to show that the seas are not within the sole and exclusive jurisdiction of the United States. The observations made above are intended to show that all places named in the 8th section are parts of the sea, and consequently, as it regarded crimes committed thereon, the United States have no sole and exclusive jurisdiction. If the 8th section does not apply to places within the sole and exclusive jurisdiction of the United States, then its provisions do not apply to crimes committed in the Indian country, as provided by the 25th section of the act of 1834 above cited.\nTo me it is manifest that congress intended to make no distinction in punishment of offences committed on land; and when it provided for the punishment of offences committed in the Indian country, it had the same object in view. Hence it is provided in the 25th section of the act of 1834, that so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country.\nThe places within the sole and exclusive jurisdiction of the United States are the forts, arsenals, dockyards, and magazines, so often mentioned in the act of 1790 as being places within the sole and exclusive jurisdiction of the United States. In regard to offences committed on the seas, it was thought proper to make special provisions; and as piracy, which is robbery on the seas, is an offence against all nations, and is perhaps by all punished with death, on account of its enormity and the difficulty of suppressing it, it was thought proper to punish it by our code with death. 1 Kent, 183.\nThe act of 1817, \u201c to provide for the punishment of crimes and offences committed within the Indian boundaries,\u201d contained a provision substantially like that in the 25th section of the act of 1834. After its passage, the supreme court in 1818 decided that robbery committed on land was not punished with death; but otherwise if committed on the sea. United States v. Palmer, 3 Wheat. 627. Indeed this was admitted by the United States\u2019 counsel.\nI have examined this case more at length than it might seem to require, because my brother judge decided at St. Louis, on application to be admitted to bail, that robbery committed in the Indian country was punishable with death. For the opinions of Judge Catron I have great respect; but the reasoning in his written opinion in this case does not satisfy me, and no authorities are cited. I will here copy that part of Judge Catron\u2019s opinion applicable to the point in which I consider the error to consist.\n\u201c The 8th section of the act of 1790,\u201d says he, \u201cprovides that if any person or persons shall commit upon the high seas, or on any river, haven, basin, or bay, out of the jurisdiction of any particular State, murder or robbery, such offender shall be deemed a felon and suffer death. The crime is to be committed, first, on the water, and second, out of the jurisdiction of any particular State.\n\u201c Suppose the crime of murder or robbery had been committed in a bay or in a river of Florida, within the country belonging to the Creek Indians, after Florida had been acquired by the United States from Spain, then the murderer or robber would have been punishable with death, because the place where the crime- was committed was not within the jurisdiction of any particular State, and because it had been committed in a bay or river.\n\u201c The act of 1817, ch. 265 (3 Story\u2019s Laws, 1644) provides that if any Indian or other person shall, within the United States, and within any town, district, or territory belonging to any nation of Indians, commit any crime, which if committed in any place or district of country under the sole and exclusive jurisdiction of the United States would, by the laws of the United States, be punished with death, the offender, on conviction, shall in like manner be punished with death.\n\u201c In the case supposed of the commission of murder or robbery on the water in the Indian country, it would clearly be a capital felony, committed in 1 a place and district of country \u2019 under the sole and exclusive jurisdiction of the United States, and be punishable by the 8th section of the act of 1790.\n\u201c The act of 1817 is as broad as it well can be, when it extends the same punishment to the land. It declares if the crimes shall be punishable with death 1 in any place or in any district of country,\u2019 &e., the offender shall be punished in like manner as if he committed the same crime on the land and in the Indian country.\u201d\nThe judge then proceeds to say that the offence with which the prisoner was charged, robbery, was committed in the Indian country attached to the State of Missouri; that he had confessed the robbery, and that the crime was therefore not bailable.\nI will here remark that the 8th section of the act of 1790, recited by the judge, declares that the person who shall commit the offences therein named, among others robbery, \u201c shall be deemed, taken, and adjudged to be a pirate and a felon,\u201d and not merely a felon, as set forth by the judge; and that it also enumerates other offences besides murder and robbery, such as piratically and feloniously running away with a vessel, or any goods or merchandise to the value of fifty dollars; and that the act of 1817 is repealed, and that of 1834 sub stituted.\nThe judge says: \u2014 \u201cIn the case supposed, of the commission of murder or robbery on the water in the Indian country, it would clearly be a capital felony, committed in a place and district of country under the sole and exclusive jurisdiction of the United States, and be punishable by the 8th section of the act of 1790.\u201d\nNow if he means that \u201c any river, harbor, basin, or bay,\u201d in the interior of Florida, and to which the admiralty jurisdiction does not extend, is a place enumerated in the 8th section, and in which piracy may be committed (for all the offences in that section specified are declared to be piracies), then I am constrained to dissent. But if, on the contrary, he means that the mouths of the great rivers where the tide ebbs and flows, and the harbors, basins, and bays, within the admiralty jurisdiction, are the places in the 8th section mentioned, and where piracy may be committed, then I am constrained to deny that they are \u201c places under the sole and exclusive jurisdiction of the United States,\u201d as to crimes. The reasons and authorities I have already given.\nIn the territories of Florida and Louisiana, and perhaps others, certain laws, including the act of 1790, were declared to be in force. They are of course yet in force in Florida, and what remains of Louisiana, as purchased of France ; and I presume in the other territories. Has any one ever heard of a prosecution for piracy committed in the interior waters of these territories, or of any person being hung for robbery, or running away with goods to the amount of fifty dollars ? Certainly nothing of the kind ever took place in the Territory of Missouri, where the law was in full force, nor have I ever heard of it taking place anywhere.\nIf, as declared by Lord Coke, the word piracy \u201c refers rather to a place than a species of crime,\u201d and if, as I have already shown, the definition of the crime, both by the laws of England and America, and the law of nations, is \u201c robbery\u201d or forcible depredation animo furandi on the seas, it would look somewhat singular to be punishing persons as pirates for offences committed in our territories two or three thousand miles from any sea; for all the offences in the 8th section, and many other offences, are declared to be piracies when committed on \u201c any river, harbor, basin, or bay, out of the jurisdiction of any particular State.\u201d\nThe offence of larceny (which is included in a robbery) could clearly be punished by tlie provisions of the 16th section, if committed in any fort, arsenal, dockyard, or magazine, under the sole and exclusive jurisdiction of the United States, and of course could be punished by the act of 1834 if committed in the Indian country; and, according to my brother judge, may also be punished under the 8th section. So we have two laws for the punishment of the same offence, and under each a different punishment.\nThe crime of murder is declared to be punishable when committed in a place within the sole jurisdiction of the United States, and is again declared to be punishable when committed on \u201c any river, harbor, basin, or bay, out of the jurisdiction of any particular State.\" Now if rivers, harbors, basins, and bays, beyond the jurisdiction of any particular State, are places within the sole and exclusive jurisdiction of the United States, this double enumeration of the places was both idle and mischievous.\nLet it be remembered that the act of 1790 was enacted, not for the territories or the Indian country, but was subsequently introduced therein, as far as it was applicable. Now it may well bo questioned whether the crime of robbery on the seas, or piracy, can be committed in the Indian country. The place enters essentially into the offence, and an aggravated punishment is annexed to it on that account. It may be likened to robbery on or near the highway, by certain English statutes, to which an aggravated punishment is annexed. The offence could be committed only on or near a highway. 1 Hale\u2019s P. C. 535.\nIf we had such an act, and it was declared to be in force in the territories or Indian country, yet if there wore no highways, the offence could not be committed there. Here we have the statute of 1790, which provides for the punishment of a great number of different crimes, and is if you please declared to be in force in the Indian country. Among them is robbery on the seas, or in rivers, harbors, basins, or bays, out of the jurisdiction of any particular State, or in other words piracy. If there are no such places in the Indian country, then the offence could not be committed there; or if robbery is there committed on land, it would not be the offence declared in the statute.\nWe have a code of criminal law for the land, that is, for forts, magazines, dockyards, arsenals, &c., which are under the sole and exclusive jurisdiction of the United States. That these are applicable to the Indian country, no one questions. We have also a code of criminal law for the seas. Now, according to the ingenious reasoning of my brother judge, we are to have a part of those intended for the seas transplanted to the Indian country, which gives 'them two sets of laws on the same subject, and makes different criminal laws for different parts of the same country enacted by the same authority. Thus if robbery be committed in a fort, arsenal, dockyard, or magazine, under the sole and exclusive jurisdiction of the United States, it is punishable, as a larceny, by fine and imprisonment.\nBut if committed in the Indian country, it is to be punished with death. If a person in the forts, arsenals, magazines, and dockyards run off with goods to the amount of fifty dollars, he is punishable by fine and imprisonment. But if he commit the same act in the Indian country, he is punishable with death. But a difficulty will arise, for as both codes are in force in the Indian country, by which shall wo be governed ? Crimes committed at sea have great and aggravated punishments denounced against them, because committed at sea. This is especially the case in regard to robbery on the sea, or piracy. 1 Kent, 183. And yet we are to punish them in the same manner, and to the same extent, when committed on land. These consequences must all follow, if my brother judge be correct in his opinion.\nThe act of 1790 was very unskilfully written. In some of its provisions, the words, if literally and strictly taken, go far beyond what could have been the intention of the writer; and the act has in some respects cojoied too closely the act of 39 Geo. III., without adverting to the difference in our constitutions. In but few of its provisions can it be taken literally. Thus section 8 provides for the punishment of all murders committed by foreigners within a foreign vessel, although upon the high seas; and so also of piracy. So it must also be in regard to piracy and murder committed on any river, &c., fsr this would lead us to the punishment of murders committed on rivers in the heart of foreign countries by their own citizens or subjects, where it would be absurd to claim jurisdiction. The act must be construed with an eye to the jurisdiction of the United States and the subject-matter, and then the 8th section will be construed not to apply to any place where the United States have not jurisdiction, nor to a place whore piracy, from its nature, cannot be committed. United States v. Palmer, 3 Wheat. 631, 634.\nI have referred to and examined the constitution and laws of the United States to show that the places \u201c under the sole and exclusive jurisdiction of the United States,\u201d mentioned in the constitution, the act of 1790, and the acts of 1817 and 1834, were the same, and were places purchased by the United States, with the consent of the legislatures of the States in which they might be, for forts, arsenals, magazines, dockyards, and other needful buildings; and that the high seas, and rivers, harbors, basins, and bays, out of the jurisdiction of any particular State, were not places within the meaning of those acts, within the sole and exclusive jurisdiction of the United States.\nI will now venture a step further. Judge Catron, in his opinion, says: \u2014\u201cIn the case supposed of the commission of murder or robbery on the water in the Indian country, it would clearly be a capital felony committed in a place and district of country under the sole and exclusive jurisdiction of the United States, and be punishable by the 8th section of the act of 1790.\u201d Now I deny that the Indian country, even technically, either land or water, is under the sole and exclusive jurisdiction of the United States. The United States have not, in any instance within my knowledge, exercised such sole and exclusive jurisdiction. By the acts of 1817 and 1834, above referred to, nothing of the kind is attempted. They both expressly except crimes committed by Indian on Indian, and confine their operation to regulating trade and intercourse, and preserving peace. A sole and exclusive jurisdiction would exclude all Indian laws and regulations, punish crimes committed by Indian on Indian, and regulate and govern property and contracts and the civil and political relations of the inliabitants, Indians and others, in that country. It would be wholly op]30sed to a self-government by any Indian tribe or nation. This self-government is expressly recognized and secured by several treaties between the United States and Indian tribes in the Indian country attached by the act of 1831 to Arkansas or Missouri District for certain purposes. This may be seen from the treaty with the Choctaws in 1830, and the treaty with the Creeks in 1832, and other Indian treaties.\nThe United States could not, therefore, assume a sole and exclusive jurisdiction over the Indian country without violating their treaties, which treaties are the supreme law of the land.\nI conclude, therefore, that the Indian country is neither in fact nor in law under the sole and exclusive jurisdiction of the United States. Indeed if congress considered the Indian country as being under the sole and exclusive jurisdiction of the United States, it was wholly unnecessary to extend to that country the laws for the punishment of crimes committed in places under the sole and exclusive jurisdiction of the United States.", "type": "majority", "author": null } ], "attorneys": [], "corrections": "", "head_matter": "The United States vs. Moses Terrel, a Cherokee Indian.\n1. There is no law of congress punishing the crime of robbery, as such, committed on land ; and judgment on an indictment therefor will be arrested.\n2. As to jurisdiction of the United States courts in criminal cases.\n3. Opinion of Judge Wells of Missouri, in note.\nApril, 1840.\n\u2014 Indictment for robbery, in the Circuit Court, before the Hon. Benjamin Johnson, district judge, holding the court." }, "file_name": "0411-01", "first_page_order": 427, "last_page_order": 438 }