United States v. Grush

26 F. Cas. 48, 5 Mason C.C. 290

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1829
• Status: Published

Opinion

STORY, Circuit Justice.

It is agreed between the parties, that the place where the vessel, (the Pacific,) on board of which the offence was committed, lay at anchor at the time of the commission of the offence, was between Lovel's Island. George’s Island, and Gallop’s Island, which belong to the city of Boston, as part of its territorial limits. The tide ebbs and flows between these islands into what is called the inner harbour of Boston; and at all times of the tide there is a great depth of water there, the bottom or channel never being dry; and vessels at anchor there are constantly afloat in the stream. The distances between these islands is about one eighth of a mile. Hale’s map of Boston, and Wadsworth’s chart of the harbour of Boston and the adjacent coasts and headlands are admitted in evidence, as accurate delineations of the same. The nearest headlands on the main land on each side are the town of Hull on the southern, and Point'Shirley on the northern side of the harbour of Boston,- and the distance between these headlands is about five or six miles. There are a number’ of islands between these headlands, with narrow inlets and passages for vessels between them. The main channel into the inner har-bour of Boston flows also between them, in no instance exceeding one mile in breadth. Nantasket Roads, as it is called, or the outer ' harbour of Boston, where vessels, going from and coming to the port, are accustomed to lie at safe anchorage, is on'the side contiguous to Hull. There are several islands farther out towards the ocean: and particularly the Great Brewster, on which the principal lighthouse stands. The extreme point of the main land, jutting from, the southern coast opposite to this light-house, is called Point Alder-ton, and the distance between them is about one mile and a quarter. Processes from the state courts of the' county of Suffolk have been at all times, without objection, served as' far down as where the Pacific lay; and even down to -the light-house on the Great Brewster; but not below. Vessels are accustomed to anchor where the Pacific lay. The towns of Boston and Chelsea constitute the county of Suffolk. Such are the material facts.

The statute, on which the present indictment is founded (Act 1825. c. 276, § 22 [3 Story’s Laws. 2006; 4 Stat. 121]) declares “that if any person or persons upon the high seas, or in any arm of the sea. or in any river, haven, creek, basin, or bay within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, on board any vessel. &c.. shall with a dangerous weapon, or with intent to kill. Ac. commit an assault on another such person shall on conviction thereof be punished.” Ac. 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 Comm. 110), uses the words “high sea” and “main sea” (“altum mare,” or “le haut meer”) as synonymous; and he adds, “that the main sea begins at the low water mark.” But though this may l)o 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 jKissesses, when it is ebb sea (see, also, Constable's Case; 5 Coke, 106); yet the more common sense is, to express the open, uninclosed ocean, or that portion of the sea, which is without the fauces terras on the sea coast, in contradistinction to that, which is surrounded, or inclosed between narrow headlands or promontories. Thus Lord Hale says (De Jure Haris, Harg. Tracts, e. 4. p. 10): “The sea is either that, which lies within the body of the county, or without. That arm or. branch of the sea, which lies within the fauees terrae, where a man may reasonably discern between shore and shore, is. or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coronor;” and for this he cites Fitzli. Abr, Corone. 399; 8 Edw. II. And then he adds: “The part of the sea. which lies not within the body of a county, is called the main sea. or ocean.” See Selden’s Forteseue De Laud. Anglise, c. 32, p. 67, etc., notes; and Hale de Fort, pt. 2, c. 7; Harg. Law Tracts, p. 88; Vatt. bk. 1, c. 33. § 279 et seq.; The Twee Gebræders. 3 C. Rob. Adm. 336. In U. S. v. Wiltberger. 5 Wheat. [18 U. S.] 76, 94. Mr. Chief Justice Marshall, in delivering the opinion of the court, manifestly inclined to the same interpretation of the words “high seas.” in our Penal Code. If (says he) “the words be taken according to the common undemanding of mankind, if they be taken in their received and popular 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 in the interior of a country.” The other words de scriptive of place in the present statute, give great additional weight to this suggestion; for if “high seas” meant to include other waters, why should the supplemental words, ••arm of the sea, river, creek, bay,” &c. have been used? Lord Hale, following the exact definition given in the Book of Assizes (22 Ass. 93) says: “That is called an arm of the ■sea, where the sea flows and reflows, and so far only as the sea flows and reflows.” Harg. Law Tracts, pt. 1. c. 4. p. 12; Id. pt. 2. c. 7. p. 88; 1 Hale. P. C. c. 32, p. 424; 2 Hale, P. C. c. 3, pp. 13-10. 64: Com. Dig. “Navigation.” B. Both he and Lord Coke constantly limit the “high seas” to those waters of the ■ocean, which are without the boundary of any county at the common law; and we shall presently see. that narrow arms of the sea are deemed to be within the boundary of some county of the realm. But the waters of the ocean upon the open sea-coast are admitted •on all sides to be without limits of any county. and are within the. exclusive jurisdiction of the admiralty up to high water mark, when the tide is full; and are deemed by the crown writers, generally, as the high sea or main sea. 2 Hale, P. C. 13-16. 54; 1 Hale. P. C. 424; 3 Inst. 57, 113; 2 East. P. C. 802; 1 Bac. Abr. “Coroner,” B: 2 Bac. Abr. “Courts of Admiralty,” A; Com. Dig. “Admiralty," E, 7. “Navigation,” A. ■

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 compre-' hend only the open ocean, which washes the sea-coast, or is not included within the body of any county in any particular state. And upon the facts admitted in the present case, the place, where the offence was committed, is not the “high seas.” in this sense of the terms. It is, in my judgment, “an arm of the sea,” in the proper definition of that phrase' But an arm of the sea may include various' subordinate descriptions of waters, where the tide ebbs and flows. ■ It may be a river, har-bour, creek, basin, or bay; and it is sometimes used to designate very extensive reaches of waters within the projecting capes or points of a country. My own opinion is, that arms of the sea, whether of the one description or the other, are within the admiralty and maritime jurisdiction of the United States. But if they are within the body of any county of a particular state, the state has also-concurrent jurisdiction therein. See Rex v. Bruce. 2 Leach. 1093; Ryan & R. 243. I do not now go over the grounds of this opinion, having upon other occasions gone into them somewhat at large. But to bring a case within the purview of the present statute, it is not sufficient, that the place, where the offence is committed, is within the admiralty jurisdiction of the United States, whether it be an arm of the sea, creek, or bay. &e.; but it must, by the very words of the statute, also be a place “out of the jurisdiction of any particular state.” And it is out of the jurisdiction of the state, in the sense of this statute. if it be not within the body of some county within the state.

This leads me to consider what is the proper boundary of counties bordering on the sea-' coast, according to the established course of the common law; for to that I shall feel myself bound to conform on the present occasion, whatever might have been my doubts, if I were called to decide upon original principles. The general rule, as it is often laid down in the books, is, that such-parts of rivers, arms, and creeks of the sea. are deemed to be within the bodies of counties, where persons can see from one side to the other. Lord Hale uses more guarded language, and says, in the passage already cited, that the arm or branch of the sea, which lies within the fauees terrae, where a man may reasonably discern between shore and shore, is. or at least may be, within the body of a county. Hawkins (P. C. bk. 2, c. 9, § 14) has expressed the rule in its true sense. and confines it to such parts of -the sea, where a man standing on the one side may see what is done on the other. And this is precisely the doctrine, which is laid down by Stanton, J., in the passage in Fitzh. Abr. Corone, 399: 8 Edw. II.; on which Lord Coke and the common lawyers have laid so much stress as furnishing conclusive authority in their favour. 4 Inst. 140, c. 22; Staunf. P. C. lib. 1, p. 51b; De Lovio v. Boit [Case No. 3,776]. It is there said: “It is no part of the sea, where one may see what is done on the one part of the water, and the other, as to see from one land to the other.” And Mr. East, in his treatise on Common Law (2 East, P. C. c. 17, § 10, p. 804), manifestly considers this, as the better opinion.

In applying the law to the state of facts presented in the present ease, I confess, that there does not seem to me any reason to doubt, that the place where the offence was committed was within the county of Suffolk. It is not' necessary to decide, whether it be a bay, or haven, within the statute, though it might, perhaps, indifferently fall within each denomination, for it is a narrow arm of the sea,- and also a place of safe anchorage for vessels. See Hale, De Port. Maris (Harg. Law Tracts) pt. 2, c. 2, p. 46; Com. Dig. “Navigation,” B, C, D, E. It appears to me, that where there are islands enclosing a harbour, in the manner in which Boston harbour is enclosed, with such narrow straits between them, the whole of the waters must be considered as included within the body of the county. It is certain, that the islands themselves are within the county of Suffolk; and. whether they are inhabited or not, can make no difference in the principles of law. Islands so situated must be considered as the opposite shores, in the sense of the common law, where persons, standing on one side, may see what is done on the other. There can be no doubt, from the proximity of Gallop’s, Lovel's, and George’s Islands to each other, that any person, on either of their shores, could see what was done on the other, I do not understand by this expression, that it is necessary, that the shores should be so near, that all that is done on one shore could be discerned, and testified to with certainty, by persons standing on the opposite shore; but that objects on the opposite shore might be reasonably discerned, that is, might be distinctly seen with the nuked eye, and clearly distinguished from each other. Indeed, upon the evidence before me, I incline strongly to the opinion, that the limits of the county of Suffolk, in this direction, not only include the place in question, but all the waters down to a line running across from the light house on the Great Brewster to Point Alderton. In the sense of the-common law, these seem to me the true fauces terrae, where the main ocean terminates.

Upon the whole, my opinion is, that the court, upon the facts, has no jurisdiction, and that a new trial ought to be granted. This renders it unnecessary to consider, whether the other point, made in arrest of judgment, can be maintained. I allude to the objection, that, in the caption of the indictment, after the usual beginning, “United States of America. District of Massachusetts." the letters “SS." are omitted. The point has, however, been argued; and, as at present advised, it strikes me to be clearly not maintainable as a valid objection.

The district judge concurs in this opinion; and therefore a new trial must be granted. Notice must be given to the proper prosecuting officers of the state, that the prisoner may be dealt with according to law in the state courts.