United States vs. Grush. following the exact definition given in the book of Assizes, (22 Assiz. 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."3 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 the 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.4 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. 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, harbour, 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 3 Harg. Tracts, part 1, ch. 4, p. 12; part 2, ch. 7, p. 88.-1 Hale, P. C. ch. 32, p. 424.-2 Hale, P. C. ch. 3, p. 13, 14, 15, 16, 64.-Com. Dig. Navigation, B. 42 Hale, P. C. 13, 14, 15, 16, 54.-1 Hale, P. C. 424.-3 Inst. 57, 113.-2 East, P. C. 802.-1 Bac. Abridg. Coroner, B.-2 Bac. Abridg. Courts of Admiralty, A.-Com. Dig. Admiralty, E. 7. Navigation, A. United States vs. Grush. 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.5 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, &c.; 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 fauces terræ, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county. Hawkins (Pl. Cr. b. 2, ch. 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 Fitz. Abridg. Corone. 399; 8 Edw. 2; on which Lord Coke and the common lawyers have laid so much stress as 5 See Rex vs. Bruce, 2 Leach, C. C. 1093.-Ryan & Russ. C. C. 243. United States vs. Grush. furnishing conclusive authority in their favour. 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. ch. 17, § 10, p. 804) manifestly considers this as the better opinion. In applying the law to the state of facts presented in the present case, 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. 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, Loveľ'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 64 Inst. 140, ch. 22.—Staunf. P. C. lib. 1, p. 51, (b.)—2 Gallis. R. 409. 7 See Hale De Port. Maris (Harg. Tracts, part 2, ch. 2, p. 46.) Com. Dig. Navigation, B. C. D. È. United States vs. Grush. naked 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 terra, 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. CIRCUIT COURT OF THE UNITED STATES. Summer Circuit. RHODE ISLAND, JUNE TERM, 1829, at Newport. BEFORE Hon. JOSEPH STORY, Associate Judge of the Supreme Court. EDWARD DEXTER vs. ANNA ARNOLD, AdministratRIX OF THOMAS ARNOLD. In what cases a bill of review generally lies. It lies for matter of error apparent on the face of the record. What is such matter? The error must appear on the decree and pleadings, for the evidence in the case at large cannot be examined to ascertain, whether the Court misstated or misunderstood the fact. A bill of review also lies for newly discovered evidence material to the issue, if such evidence was not known until after the period in which it could be used in the cause. Quære, if such newly discovered evidence must not be some written paper or evidence. Quære, if newly discovered testimony of witnesses, going to confirm or to contradict the original testimony, is admissible. No bill of review will lie, if the newly discovered evidence could have been obtained by reasonable diligence before the original hearing. Quare, whether a bill of review lies upon new matter not in issue in the original cause; but which shows the decree erroneous. It does not lie, where the party seeks to set out a new title, and not to support the title in the original cause. A bill of review lies for the party who obtained the original decree in his own favour, if the original decree was injurious to him. A bill of review lies for error in law only where the original decree is enrolled. If not enrolled, the remedy is a re-hearing. All decrees in the Courts of the United States are deemed to be enrolled at the term in which they were passed. |