dissenting.
The opinion of the majority of the court is avowedly based upon the hypothesis that the open wafers, of the Great Lakes áre “high seas,” within the meaning of section 5316 of the Revised Statutes, on which the indictment in this case is founded.
That hypothesis I am unable to accept. It appears to me ’ *267to be inconsistent with the settled meaning of the term “ high seas,” in our law, and in common speech, and especially as used in the Crimes Acts of the United States, as heretofore uniformly expounded by this court, and by the justices thereof.
According to all the authorities, without exception, “the high seas” denote the ocean, the common highway of all nations—rsometimes as including, sometimes as excluding, bays and arms of the sea, or waters next the coast,, which are within the dominion and jurisdiction of particular States—but never as extending to any waters not immediately connecting with the sea.
The first Crimes-Act of- the United States provided, in section 8, for the punishment of murder or other capital offence committed “upon the high seas, or in any river, haven, basin ?r bay, out of the jurisdiction of any particular State;” and, in section 12, for the punishment of any person who should “ commit manslaughter upon the high seas,” but not mentioning in that section any other waters. Act of April 30, 1790, c. 9 ; 1 Stat. 113, 115. In United States v. Wiltberger, decided by this court in 1820, it was adjudged that manslaughter committed by the master upon one of the seamen, on board a merchant vessel of the United States, below low water mark of a river flowing into the sea in China, was not “ manslaughter upon the high seas,” nor within the act of 1790; and Chief Justice Marshall, in delivering judgment, said: “ If the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the ‘ high seas,’ if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country.” 5 Wheat. 76, 94.
In United States v. Brailsford, this court held that the words “out of the jurisdiction of any particular State,” in section 8 of the act of 1790, meant a State of the Union, and not • a foreign State; and that a ship lying at anchor in an open roadstead, within a marine league of a foreign shore, and not in a river, haven, basin or bay, might be found by a jury to be on the high seas. 5 Wheat. 181, 189, 200. A similar *268decision had been previously made by Mr. Justice Story. United States v. Ross, 1 Gallison, 624.
In United States v. Hamilton, Mr. Justice Story held that larceny in an enclosed dock, within the ebb and flow of the tide, in a foreign port, was not larceny “ upon the high seas,” under section 16 of the act of 1790. 1 Mason, 152. In United States v. Morel, it was held by Mr. Justice Baldwin and Judge Ilopkinson, that an indictment on the. same section was not sustained by proof of stealing in a land-locked harbor of one of the Bahama Islands; the court saying: “The open sea, the high sea, the ocean, is that which is the common highway of nations, the common domain within the body of no country, and under the particular right or jurisdiction of no sovereign, but open, free and common to all alike, as a common and equal right.” 13 American Jurist, 279, 282. And in United States v. Jackson, a like decision was made by Mr. Justice .Thompson and Judge Betts as' to larceny in the harbor of Vera Cruz, because “the high seas were, properly speaking, within1 the territory of no State or country.” 2 N. Y. Leg. Obs. 3, 1.
In United States v. Robinson, 4 Mason, 307, which was art indictment on the act of March 26, 1804, c. 10, (2 Stat. 290,) for destroying a vessel “on the high seas” with intent to defraud the underwriters, Mr. Justice Story held that a land-locked bay in Bermuda could not be considered as the high seas. And, under the same statute, Mr. Justice Nelson and Judge Betts held that a vessel in the East River, or western extremity of Long Island Sound, was not upon the high seas. United States v. Wilson, 3 Blatchford, 435.
The Crimes Act of March 3, 1825, c. 65, was drafted by Mr. Justice Story, to supply the defects of former acts. 1 Story’s Life of Story, 297, 437, 439, 440; 2 ib. 402. That act, in sections 4, 6-8, 11 and 22, provided for the punishment of murder, of assaults with a dangerous weapon or with intent to kill, .artd of various other crimes, “ upon the high seas, or in any arm’ of the sea, or in any river, haven, creek, basin or bay,” thus covering all tide waters, including a dock or basin, or a land-locked bay, in which the tide ebbs and flows from *269the sea, though, in a.foreign State, if “within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State ” of the Union. 4 Stat. 115-118,122.
In United States v. Grush, 5 Mason, 290, which was aii indictment on the provision of section 22 of the act of 1825, (reenacted in the very section of the Revised Statutes now .in question,) for an assault with a dangerous weapon and with intent to kill, Mr. Justice Story, in deciding that a place in Boston Harbor within the body of a county was a bay or haven or arm of the sea, but was not the high seas, said: “ There cannot, I think, be any doubt as to what is the true meaning of the words £ high seas ’ in this statute. Mr: Justice Blackstone, in his Commentaries, (1 Com. 110,) uses the words £ high sea ’ and ‘ main sea ’ (album mare, or le haut meer) as synonymous; and he adds, £ that the main sea begins at the low watermark.’- But though this may be one sense of the terms, to distinguish the • divided empire, which the admiralty possesses between'high water and low water mark, when it is full sea, from that which the common law possesses, when it is ebb sea; yet the more common sense is, to express the open, unenclosed ocean, or that portion of the sea, which is without the fauces terree on the sea-coast, in contradistinction to that, which is surrounded, or enclosed between narrow headlands or promontories.” And, after referring to United States v. Wiltberger, above cited, and other authorities, he concluded: “ From this view of the subject, I am entirely satisfied, as well upon the language of the authorities, as the- descriptive words in the context, that the words £ high seas ’ in this statute are used in' contradistinction to arms of the sea, and bays, creeks, &c., within the narrow headlands-of the 'coast; and comprehend .only the open ocean, which washes -the sea-coast, or is not included within the body of any county in any particular ’State.” 5 Mason, 297-299.
.- Here we have the- deliberate opinion of Mr. Justice Story, wiio had drafted -the act, who had taken part in all the previous .decisions of this ■ court upon (he • Subject and who had often considered it at the circuit', that the words “ high seas” in the very enactment now before us “ comprehend only the *270open ocean, which washes the sea-coast, or is not included within the body of any county in any particular State.”
. So Chancellor Kent says:'“ The high seas mean the waters of the oceatr without the boundary of any county, and they are within the exclusive jurisdiction of the admiralty up to high water mark when the tide is full. The open ocean which washes the sea-coast is used in contradistinction to arms of the thé sea enclosed within the fauces terree, or narrow headlands and promontories: and under this head are included rivers, harbors, creeks, basins, bays, &c., where the tide ebbs and flows.” 1 Kent Com. 867.
If we turn to the principal American dictionaries, we find the following definitions of “ high seas ” : In Worcester, “ high seas, the open ocean.” In Webster, “ high seas, {law) the open sea; the part of the ocean not in the territorial waters of any' particular sovéreignty, usually distant three miles or more from the coast line.” In the Century Dictionary, “ high seas ” are defined as “ the open sea or ocean; the highway of waters; ” and, in. law, either (1) the waters of the ocean to high water mark, or (2) those “ not within the territorial jurisdiction of any nation, but the free highway of all nations, the waters of the ocean exterioi to a line parallel to the general direction of the shore and distant a marine league therefrom;” and it is added : “ The Great Lakes are not deemed high seas.”
A fortnight after the passage of the act of 1825, this court, speaking by Mr. Justice Story, decided that the general admi- ■ ralty jurisdiction of the courts of the United States was limited to tide waters. The Thomas Jefferson, 10 Wheat. 428. That decision was followed in 1833 in Peyroux v. Howard, 7 Pet. 324, in 1837 in The Orleans, 11 Pet. 175, and in 1847 in Waring v. Clarke, 5 How. 441. For more than half a century after the adoption of the Constitution, Congress took no step towards extending the admiralty jurisdiction beyond such waters. In the act of February 26, 1845, c. 20, extending” that jurisdiction, in matters of contract and tort, “upon the lakes and the navigable waters connecting the same,” Congress clearly treated those lakes and waters as distinct from, and not included within, “ the high seas or tide waters.” 5 Stat. 726. *271And Congress never indicated any intention to extend the criminal jurisdiction of the courts of the United States “to the Great Lakes and the connecting waters ” until three years after the assault alleged in the indictment in this case. Act of September 4, 1890, c. 874 ; 26 Stat. 424. .
The judgment of this court in 1851, in The Genesee Chief, 12 How. 443, overruling The Thomas Jefferson and the cases which followed it, and holding the act of 1S45 to be constitutional, did not proceed upon any assumption that the Great Lakes were “ high seas; ” but" upon the broad ground that “the lakes and the waters connecting them are undoubtedly public waters,” and therefore “ within the grant of admiralty jurisdiction in the Constitution of the United States.” 12 How. 457. Chief Justice Taney, in delivering that judgment, clearly distinguished the Great Lakes from the high seas. This appears in his statement of the question whether “ the admiralty jurisdiction, in matters of contract and tort, which the courts of the United States may lawfully exercise on the high seas, can be extended to the lakes, under 'the power to regulate commerce; ” as well as in his pregnant observations, “ These lakes are, in truth, inland seas. Different States border on them on one side, and a foreign nation on the other.” 12 How. 452, 453.
So in The Eagle, 8 Wall. 15, in which it was decided that the admiralty jurisdiction over all navigable waters, having been declared in The Genesee Chief to depend upon the Constitution, and not upon any act of Congress, extended to the British side of the Detroit River, Mr. Justice Nelson, speaking for this court, observed the same distinction, saying that the District Courts could take cognizance of “ all civil causes of admiralty jurisdiction upon the- lakes and waters connecting them, the same $s upon the high seas, bays, and rivers navigable from the sea.” 8 Wall. 21.
The lakes are not high seas, for the very .reason that they are inland seas, within the exclusive jurisdiction and control of those countries within whose territories they lie, or between whose territories they are the boundary; and therein essem tially differ from “the high seas,- where the law of. no particu*272lar State has exclusive force, but all are equal.” Bradley, J., in The Scotland, 105 U. S. 24, 29.
The distinction is familiar and well established in international law.
As was said by Sir William Scott: “ In the sea, out of the reach of cannon shot, universal use is presumed; in rivers flowing through conterminous States, a common use to the different States is presumed.” The Twee Gebroeders, 3 C. Rob. 336, 339.
In a case in which a municipal seizure under the Customs Act of March 2, 1799, c. 22, § 29, (1 Stat. 649,) in the St. Mary’s Biver, then forming the boundary between the United States and the Spanish territory, of a vessel bound up that river to the Spanish waters and Spanish possessions, was held unlawful, Mr. Justice Story, speaking for this court, said that,' “ upon the general principles of the law of nations, the waters of the whole river must be considered as common to both nations, for all purposes of navigation, as a common highway, necessary for the advantageous use of its own territorial rights and possessions; ” and he distinguished the waters of the river, common to the two nations between whose dominions it flowed, from “ the ocean, the common highway of all nations.” The Apollon, 9 Wheat. 362, 369, 371.
Mattel says: “ The open sea is not of a nature to be possessed, no one being able to settle there so as to hinder others from passing over it.” Mattel, lib. 1, c. 23, § 280. “No nation, therefore, has the right to take possession of the open sea, or to claim the sole use of it, to the exclusion of other nations.” | 281. “.Every lake, entirely included in a country, belongs to the nation owning the country, which in possessing itself of a territory is considered as having appropriated to itself everything included in it; and, as it seldom happens that the property of a lake of- considerable size falls to individuals, it remains common to the nation. If this lake is situated betweén two States, it is presumed to be divided between them at the. middle, so long as there is neither title, nor constant .and manifest custom, to determine otherwise.” c. 22, § 274.
Wheaton says: “The sea cannot become the exclusive.prop*273erty of any nation. And consequently the use of the sea, for these purposes,” (navigation, commerce, and fisheries,) “ remains open and common to all mankind.” Wheaton’s Inteiv national Law, (8tl| ed.,) § 187. “ The territory of the State includes the lakes, seas and rivers, entirely enclosed within its limits. The fivers which flow through the térritory also form a part of the domain, from their sources to their mouths, or as far as they flow within the territory, including the bays or estuaries formed by their junction with the sea. Where a navigable river, forms the boundary of conterminous States, the middle of the channel is generally taken as the line of separation between the two States, the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occupancy and long undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river.” § 192.
Phillimore, after observing that “ no difficulty can arise with respect to rivers and lakes entirely enclosed within the limits óf a State,” and discussing the rights in rivers which flow through more'than one State, and tlie rights in the open sea, in narrow seas or straits, and. in portions of the sea next the coakt or between headlands, says: “With respect to seas entirely enclosed by the land, so as to constitute a salt-water lake, the general presumption of -law is, that they belong to the surrounding territory or territories in as full and complete a manner as a fresh-water lake. The Caspian and the Black Sea naturally belong to this class.” And he proceeds to show that the rights of other nations than Turkey and Russia to navigate the Black Sea from- the Mediterranean rest upon treaties only. 1 Phillimore’s International Law, (3d ed.) c. 5, § 155; c. 8, §§ 205, 205a. See also Wheaton, § 182 and note; Treaty of 1862 of the United States with the Ottoman Empire, art. 11,12 Stat. 1216.
The Mediterranean Sea, opening directly into the Atlantic Ocean at the Straits of Gibraltar, and washing the shores of many countries of different sovereigns, has, excepting such portions thereof as the Gulf of Yenice or the Straits of Mes-- *274■ sina, been recognized and considered by all nations for centuries, as part of the high seas, free to all mankind. Martens, Precis du Droit des Gens, § 42; Wheaton, § 190. And it ivas .the one sea familiarly known to the ancients as altum mare, the deep sea or “ high sea,” or simply ciltum, the deep.
The freedom-of the Baltic Sea, and of the Sound connecting it with the North Sea, long and earnestly controverted, was finally established in 1857 by a treaty of the five powers ■whose territories bordered 'thereon with other- European nations, and by a separate treaty between the United States and Denmark. "Wheaton,'■§§ 183-185, 187 note; 1 Phillimore, c. 5, § 179; c. 8, § 206; 11 §tat. 719.
As to the Great Lakes of North America^ there has never been any doubt.- . They are in the' heart of the continent, far above the flow of. the tide from the sea. Lake Michigan is wholly within .the limits and dominion of the United States, and of those States of the Union which surround it. Illinois Central Railroad v. Illinois, 146 U. S. 387 ; 6 Opinions of Attorneys General, 172. The middle line of Lakes Superior, Huron, Erie and Ontario, and of the waters connecting them, forms part of the boundary between the United States and the State of Michigán and other States of the Union, on the one hand, and the British possessionsiin Canada, on the other. Treaties of Paris in 1783, art. 2, and of Ghent in 1814, art. 6, and Decision of Commissioners under this article; 8 Stat. 81, 221, 274; Charters and Constitutions, 994, 1453, 2026. No other nation has the right to navigate them, except by the permission, and subject to the laws, of the United States and Great' Britain,■ respectively. The conUoversy between the United States and Great Britain as to the right of navigating the river St. Lawrence turned upon the effect to -be given to the fact that one side of the Great Lakes and of the waters connecting them belonged to each country, as against the fact that both shores of the St. Lawrence beloiv belonged to Great Britain; and it was never suggested that any third nation had a free and common right of navigation of the lakes and their connecting.-waters.. On the contrary, the exclusive right of. the United States and Great Britain to navigate the lakes wras *275made the basis of the American claim to the navigation of the river. On June 19, 1826, Mr. Clay, Secretary of State under President John Quincy Adams, in a letter to Mr. Gallatin, then Minister to England, said: “The United States and Great Britain have, between them, the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) includes that of passing from the one to-the other through the natural link.” Congressional Documents, 1827-28, No. 43, p. 19; Wheaton, § 205. The right of citizens of- the United States to navigate the St. Lawrence, as well as a right to British subjects to navigate Lake Michigan, was secured by treaties between the two countries in 1854 and 1871. 10 Stat. 1091; 17 Stat. 872. See also Act of July 26, 1892, c. 248, 27 Stat. 267; 1 Wharton’s International Law Digest, §§ 30, 31. '
No instance has been produced, in which the words “high seas” have been used to designate fresh inland waters, the entire jurisdiction and control of which belong to those nations within whose territories they lie, or between whose territories they form the boundary.
The conclusion seems to me inevitable that no part of the Great Lakes can be held to be “ high seas,” within the meaning of section 5346 of the Revised Statutes.
The language of this section, immediately following the term “ the high seas,” is “ or in any at m of the sea, or in any river, haven, creek, basin or bay.” It is quite clear that the Detroit River is not an “arm of the sea,” or a “haven, creek, basin or bay.”. Is it a “ river,” within the meaning of this enactment ?
Upon this point I agree with the rest of the court that the language used must be read in conjunction with the term “the high seas,” and as referring to waters connecting with the high seas mentioned; and' that Congress cannot be supposed to have intended to include fresh-water rivers, and not to include the lakes from or into which they flow, and which, together with them, form a continuous passage for vessels. But if the lakes are not “high seas,” nor included in the act, the consequence • would seem to be that the word “river” cannot be held to include a fiver connecting two of the lakes.
*276The question now before the court is not one, arising in a civil proceeding, of the extent of the general and comprehensive grant in the Constitution of “admiralty and maritime jurisdiction” to the courts of-the United States. But it is a question, arising in a criminal prosecution, of -the construction . of particular words in a penal statute, which cannot be extended by the court to a similar or analogous case, not within their natural and obvious meaning.
' The place in the Detroit River within the territorial limits • of the Dominion of Canada, where this offence is alleged to have been committed, was doubtless “ within the admiralty jurisdiction of the United States,” under the decision in The Genesee Chief; and was “ out of the jurisdiction of any particular State,” unaer the decision in United States v. Brailsford, 5 Wheat. 184, 189, 200, already cited. Nor is there any doubt of the power of Congress to' punish crimes committed on American vessels, wherever they may be afloat. United States v. Furlong, 5 Wheat. 184, 194; Crapo v. Kelly, 16 Wall. 610, 624-626.
But, in order to come within the statute, it is not enough that the offence was committed “ within the admiralty jurisdiction of the United States;” and “out of the jurisdiction of any particular State ” of the Union; and upon a vessel belonging in whole or in part to the United.States, or to a citizen thereof. It must also be covered by the description, “ upon the high seas, or upon any arm of the sea, or in any river, haven, creek, basin or bay.”
The leading words of this description are applicable to nothing but the ocean and its adjacent watgrs within the ebb and flow of the tide; every word in the description aptly uesig- . nates tide waters; all the weirds,'taken together, point to tide waters; and no other waters come within their natural and obvious meaning, in the connection in which they are used. The evident intention of Congress,.-to be collected- from the words it employed, was to punish offenees upon the sea,' and upon any watei’s forming part of the <sea, or' immediately connecting with it, as far as high water mark, and not -within the jurisdiction of any State of the Union; and the whole object *277and effect of adding, after the. “ high seas,” the words “ or in any arm of the sea, or in any river, .haven, creek, basin or bay,” were to cure the defects of earlier statutes in this respect, and to include all waters within the ebb and flow of the tide, which are estuaries or approaches of the high seas or open ocean.
Upon this part of the case, the decision of this court in United States v. Bevans, 3 Wheat. 336, is much in point. That was an indictment for a murder committed by a marine upon another'enlisted man on a ship of war of the United States lying-in the harbor of Boston, and so within the territorial jurisdiction of the State of Massachusetts, and therefore, as the court held, not coming within the description in section 8 of the act of April 30, 1790, c. 9, “upon the high seas, or in. any river, haven, basin or bay, out of the jurisdiction of any particular State.” But the jurisdiction of the Circuit Court of the United States was also sought to be maintained under the provision, of section 7 of the same act, for the punishment of murder committed “ within any fort, arsenal, dockyard, magazine, or other place or district of country, under the sole and exclusive jurisdiction of the United States.” 1 Stat. 113. It was argued that a ship of war of the United States was “ a place under the sole and exclusive jurisdiction of the United States,” and therefore within the act. But this court, speaking by Chief Justice Marshall, held otherwise; and, while waiving a decision of the question whether any court of Massachusetts would have jurisdiction of the offence; and recognizing as unquestionable the power of Congress to punish an offence committed by a marine on board a ship of war, wherever she may be ; nevertheless hold that Congress had not exercised that power by the provision last quoted, because tbe objects noth which the word “ place ” was associated — “fort, arsenal, dockyard, magazine,” and “district of country”—being all fixed and territorial in their character, “the construction■ seems irresistible that, by the words ‘other place’ was intended another place of a similar character with those previously enumerated, and with that which follows,” and “ the context shows the mind of the legislature *278•to have been fixed on territorial objects of a similar character.” 3 Wheat. 390, 391.
Applying the same rule of construction, noscitur a soeiis, to the enactment now before the court, the conclusion seems irresistible that, as the preceding words, “upon the high seas, or in any arm of the sea,” as well as the succeeding words,' “ haven, creek, basin or bay,” designate tide waters of or adjoining the ocean, the words “any river” must be held to designate waters of a similar character, that is to say, those rivers only where the tide ebbs and flows, and which are immediately connected with the sea or with one of the other waters enumerated, and cannot be extended to a fresh-water river in the interior of the continent, because the context shows1 the mind of the legislature to have been fixed on tide waters.
Should there be any doubt of the soundness of this construction, that doubt, in interpreting a penal statute, should be solved in favor of the defendant.
In United States v. Wiltberger, cited’ at the beginning of this opinion, in which, as in United States v. Bevans, just cited,, and in the case at bar, the question was of the meaning of words, not defining the elements of the crime itself, but only describing the place of its commission, Chief Justice Marshall expounded the rule of construction of penal statutes as follows : “ The rule, that penal laws are to be construed strictly, is perhaps hot much, less old than construction itself. It is founded oh the tenderness of the law for the rights of individuals ; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial' department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.” “ Though penal 1-aws are to be construed strictly, they are not to be construed só strictly as to defeat the obvious intention of the legislature. The maxim, is not to be so-applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would. comprehend. The intention of the legislature is to be collected from the words they employ.” “ To determine that a case is within the intention of- a statute, *279its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that” a case which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.” 5 Wheat. 95, 96. A nd in answer to the suggestion made in that case (which has been repeated in this) of “the extreme improbability that Congress could have intended to make those differences with respect to place, which their words import,” the Chief Justice said: “We admit that it is extremely improbable. But probability is not a guide which a court, in construing a penal statute, can safely take. We can conceive no reason why other crimes, which are not comprehended in this act, should not be punished. But Congress has not made them punishable, and this court cannot enlarge the statute.” 5 Wheat. 105.
For these reasons, with all' deference to the opinion of my brethren, I am constrained to conclude that the question certified should be answered in the negative.