bays, creeks, etc., 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 prescnt case, the place where the offense 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, harbor, creek, basin or bay; and it is sometimes used to desig nate 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, C. C., 1093; Russ. & Ry. C. C., 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 offense is committed is within the admiralty jurisdiction of the United States, whether it be an arm of the sea, creek or bay, etc.; 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.

§ 1641. All inlets of the sea which are so narrow that a man may discern an object from shore to shore are not properly the high seas, but waters that lie within the body of a county.

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 furnishing conclusive authority in their favor. 4 Inst., 140, ch. 22; Staunf. P. C., lib. 1, p. 51 (b.); 2 Gall., 409. 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 offense 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 IIale De Port. Maris (Harg. Tracts, part 2, ch. 2, p. 46); Com. Dig. Nav., B. C. D. E. It appears to me that where there are islands inclosing a harbor, in the manner in which Boston harbor is inclosed, 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, Lovell'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 naked eye, and clearly distinguished from each other. Indeed, upon the evidence before me, I incline strongly to the opinion that the lim ts 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 Allerton. In the sense of the common law, these seem to me the true fauces terræ 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.

§ 1642. In general.— The courts of the United States have no jurisdiction except such as is expressly conferred by statute or necessarily implied. United States v. Ta-wan-ga-ca,* Hemp., 304; United States v. Alberty,* Hemp., 444; United States v. McKenzie,* 1 N. Y. Leg. Obs., 371; United States v. Plumer, 3 Cliff., 54; United States v. Hudson,* 7 Cr., 32; United States v. Coolidge,* 1 Wheat., 415. To fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which cannot be dispensed with in a court, and so far the federal courts possess powers not immediately derived from statute. United States v. Hudson,* 7 Cr., 32. See $ 14, 22, 32, 35.

§ 1643. The jurisdiction of a federal court depends upon three things: first, the nature of the offense; second, the status as to nationality of the party committing it; and thir, the place where it was committed. This is so because the criminal jurisdiction of the courts of the United States is limited. Ex parte Reynolds, 5 Dill., 395.

§ 1644. The jurisdietion of a court cannot be limited by an order of the president or direction of the attorney-general Courts in determining the extent of their jurisdiction look to the law, and, within that jurisdiction, they are absolutely free from the control of any other department of the government. United States v. Lawrence, 13 Blatch., 295 (ZZ 3468–74).

§ 1645. The United States courts derive their only power to try, convict or punish from the constitution and the laws made in pursuance of it. The jurisdiction of offenses which are cognizable at common law resides in the state courts alone, even though the general government may be the party immediately aggrieved by the misdeed complained of. United States v. Hutchison,* 4 Penù. L. J. Rep., 211.

§ 16:6. In order to ascertain the jurisdiction of the federal courts in criminal cases resort must be had to the acts of congress providing for the punishment of crimes; for although such courts are unquestionably to look to the common law, in the absence of statutory provision, for rules of guidance in the exercise of their functions in criminal as well as in civil cases, it is to the acts of congress passed in pursuance of the constitution alone that they must have recourse to determine what constitutes an offense against the authority of the United States, it being the settled law that the United States has no unwritten code to which resort can be bad as a source of jurisdiction. (Per CLIFFORD, J., dissenting.) Tennessee v. Davis, 10 Otto, 276 (CONST., ES 2473-2500).

§ 1647. The federal courts of inferior jurisdiction cannot take cognizance of criminal offenses of any grade, without the express appointment or direction of positive law. To enable them to exercise the functions bestowed by the constitution over crimes and misdemeanors, there must be a designation, by positive law, both of the offense and the tribunal which shall take cognizance of it. Congress has, in its criminal legislation, se lulously evinced the intention to use the term high seas in its popular and natural sense, and in contradistinction to mere tide-waters flowing in ports, havens and basins. And hence, under the act of March 24, 1804, punishing with death “any one, not being the owner, who shall, on the high seas, wilfully and corruptly cast away, burn, or otherwise destroy any ship or other vessel unto which he belongeth, being the property of a citizen of the United States,” the district court has no jurisdiction of the offense when committed within the tide-waters, but not upon the high seas. United States v. Wilson, 3 Blatch., 435.

§ 1648. The courts of the United States have no jurisdiction on an indictment against a corporation for obstructing a navigable river by a bridge erected by state authority, unless by maintaining such structure the defendant has violated the constitution of the United States, an act of congress, or a treaty, because it is only within those limits that the courts of the United States can act. United States v. New Bedford Bridge, 1 Woodb. & M., 491. § 1649. The federal courts, having only a limited jurisdiction, cannot transcen1 these limits, though the parties make no objection. The court is bound to pause whenever, at any stage of the case, it finds itself to be without jurisdiction. Ibid.

§ 1650. Place of trial - Offenses within the United States.- If an offense against the United States be committed within the United States it must be tried in the state and district within which it is committed. United States v. Bird,* 1 Spr., 299.

$ 1651. The provisions of section 731, Revise 1 Statutes, which provides that, when any offense is committed in one district and terminated in another, the trial may be had in either, and the offense may be deemed to have been committed in both, has no application to the case of a libel composed in one district and published in another. In re Buell, 3 Dill., 116 (§§ 3183-87).

1652. The district court of the United States for the district in which a criminal is found or to which he is brought has jurisdiction to try the offense, nor will it deliver up the criminal that he may be tried in some other district. United States v. Corrie,* 23 Law Rep.,

145.

§ 1653. On a charge of conspiracy under section 30 of the act of March 2, 1867, the defendants may be tried in the district where the overt act was committed. United States v. Rindskopf, 6 Biss, 259 (§ 200-206).

§ 1654. offenses out of a state.- Crimes against the laws of the United States, committed outside of the limits of a state, are not local, but may be tried at such place as congress shall designate by law; but if committed within a state they are local, and must he tried within the district where committed. United States v. Jackalow,* 1 Black. 484; United States v. Dawson,* 15 How., 467; Hemp., 646.

§ 1655. It is competent for congress to prescribe the punishment of offenses committed on the high seas, open roadsteads, in any haven, basin or bay, or in any river where the sea ebbs and flows, although it is within the limits of a state. But in such cases the offense must be tried in the state where it was committed. United States v. Jackalow,* 1 Black, 484. § 1656.

offenses out of the limits of the United States.-The statutes of 1790 and 1825, requiring that an offense committed without the limits of the United States, on the high seas or in a foreign port, must be tried in the district "where the offender is appreheaded, or into which he may be first brought," contemplate two classes of cases, one in which the offender shall have been apprehended without the limits of the United States, and brought, in custody, into the same judicial district; the other, in which he shall not have been so apprehended and brought, but shall have been first taken into legal custody, after his arrival within some district of the United States, and provide in what district each of these classes shall be tried. They do not contemplate that the government shall have an election in which of two districts to proceed to trial. United States v. Bird,* 1 Spr., 299.

§ 1657.

offenses at sea.- For crimes committed on the high seas, the offender may be

prosecuted in the district where he is apprehended, or into which he shall first be brought. United States v. Thompson,* 1 Sumn., 170.

§ 1638. The act of March 3, 1825, declaring that "the trial of all offenses which shall be committed upon the high seas or elsewhere, out of the limits of any state or district, shall be in the district where the offender is apprehended, or into which he may be first brought," is in the alternative, and the jurisdiction may be exercised either in the district into which the prisoners are first brought, or in that in which they are apprehended under lawful authority, for trial for the offense. United States v. Baker,* 5 Blatch., 6.

1659. Though where a person is indicted for murder on the high seas it must be shown that he was first apprehended within the district in which the indictment is found, yet where no evidence of that fact was given, and the point was not made on the trial, it was held that evidence that the ship was bound for a town in which the indictment was found is sufficient proof of his first apprehension in that district. United States v. Mingo,* 2 Curt., 1.

1689. The act of March 3, 1825, makes an assault committed with a dangerous weapon on board an American vessel, upon the high seas, a crime against the United States, cognizible "in the district where the offender is apprehended or into which he may first be brought." It is held that a person who, on the commission of the offense, has been placed in irons on board ship, and so kept until the vessel reaches the lower quarantine anchorage in New York harbor, within the eastern district of that state, and, after remaining there several days, is delivered to the harbor police of the state of New York, and by them, without process or warrant, carried to New York city and delivered over to the marshal of the southern district of New York, a warrant for his arrest being afterwards delivered to the marshal, may be tried and punished in the circuit court for the southern district. United States v. Arwo, 19 Wall., 4-6.

§ 1661. Where the members of the crew of an American whaling vessel were indicted and convicted of endeavoring to make a mutiny and revolt on board th› vessel while on a voyage o the high seas, and no objection was made at the trial that there was no proof to support the averment in the indictment that the southern district of Now York in the second circuit was the district and circuit into which the defendants were first brought and apprehended, it was held to be too late to raise the objection on a motion in arrest of judgment. United States v. Crawford,* 1 N. Y. Leg. Obs., 399.

§ 1662. — larceny in another state. It is held that one who steals goods in Maryland and brings them into the District of Columbia may be convicted and punished in the latter place. United States v. Tolson, 1 Cr. C. C., 269; United States v. Hankey, 2 Cr. C. C., 65. § 1663. forged chick sent by mail.- A forged check was placed in a letter in Baltimore, and put into the postoffice, directed to Washington. Held, not an uttering at Washington. United States v. Plympton,* 4 Cr. C. C., 309. It was also held that an indictment would not lie in Washington county for false pretenses made out of the county, although the money was obtained in the county. Ibid.

§ 1664. stroke in Alexandria, death in Maryland. Where the mortal stroke was given in Alexandria, and the death happened in Maryland, the circuit court for the District of Columbia has no jurisdiction of the offense of homicide. United States v. Bladen,* 1 Cr. C. C., 518. But see United States v. Guiteau, 1 Mackey, 498, 563. § 1665. stroke at sea, death on land.—Section 11 of the crimes act of April 30, 1790, declaring that murder committed on the high seas shall be tried in the district court where the offender is apprehended, or into which he shall be first brought, does not give the circuit court jurisdiction where the stroke took place at sea and the death upon the land. United States v. Magili,* 1 Wash., 463.

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§ 1668. treason in another state.- Greiner was brought before the district judge of the United States in Pennsylvania in 1861, on a charge of treason committed in Georgia. It was admitted that the United States courts did not at that time sit in Georgia, nor did their process actually run there, on account of existing hostilities, and that the defendant could not have a "speedy trial by a jury of the state and district" where the crime was committed, as is secured by the constitution. These circumstances existing, and the district attorney not asking for a removal of the defendant to the district where the crime was committed, under the thirty-third section of the judiciary act of September 24, 1789, providing for a removal in such cases, but asking that the defendant be committed or held for trial at the next actual session of the United States court for the southern district of Georgia, the judge held that he could do nothing more than require the defendant to give security to keep the peace, and be of good behavior in all cases arising under the constitution and laws of the United States. United States v. Greiner,* 4 Phil., 396.

§ 1637. — brought within distrlet illegally.-It cannot be pleaded to the jurisdiction of the circuit court of the United States, to take cognizance of an offense against the United States committed within the district for which the court is sitting, that the defendant was

brought within the jurisdiction from Canada, under a charge of committing a crime, the commission of which extradition is not provided for in our treaty with Great Britain United States v. Caldwell,* 8 Blatch.. 131.

§ 1668. nuisance. It seems that an indictment for keeping and maintaining a nui sance can only be prosecuted in the state within which the nuisance is located, for only in that state is it a trespass and a crime. Mississippi & Missouri R'y Co. v. Ward, 2 Black, 494. § 1689. Confined to the district. The jurisdiction of the circuit courts of the United States in criminal cases is confined to offenses committed within the district for which those courts respectively sit, where the offenses are committed on land. Hence, after the act of April 20, 1818, divided the district of Pennsylvania, created a district court for the western district, and vested this court with circuit court jurisdiction within the western district, except in cases of appeal, the circuit court for the district of Pennsylvania no longer had jurisdiction of crimes committed in the western district. Under such circumstances, an indictment in the circuit court which states that the crime was committed at the district of Pennsylvania does not show that the court has jurisdiction, since it might have been committed in either the castern or the western district.

United States v. Woods,* 2 Wheeler, 325. § 1670. District to be previously ascertained. The sixth amendment to the constitution, providing that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law," requires that the district shall have been ascertained previous to the commission of the crime. One who committed an offense in the southern district of New York, prior to February 25, 1865, at which date the eastern district was formed from the southern district, cannot, therefore, be tried for the offense in the eastern district. United States v. Maxon,* 5 Blatch., 360.

§ 1671. The provision in the sixth amendment, that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law," applies only to offenses committed within the limits of a state. United States v. Dawson,* 15 How., 467.

§ 1672. On August 16, 1856, the territory of Washington then being divided into three judicial districts, and Pierce county being in the third district, congress passed an act declaring that the judges of the supreme court in each of the territories should fix and appoint the several times and places of holding the several courts in their respective districts. Pursuant to this act, the judges of the supreme court of this territory assembled at its capital on No vember 10, 1956, and proceeded to fix the times and places of holding the courts in the several districts. In the third district two terms were appointed, the term for that fall to commence in Pierce county on the third Monday in November. On the assembling of the legislature, Pierce county was transferred to the second judicial district. A term of the district court for Pierce county was held after the passage of the act of congress on August 16th, but prior to the action of the judges of the supreme court, or the transferring of Pierce county to the second district. At this term, held on the third Monday in November, 1856, the grand jury, inquiring for the body of the county of Pierce, found a bill of indictment against the prisoner for murder. At the same term the defendant was arraigned and tried on this indie mnt; the jury not being able to agree, the case was. on the transfer of Pierce county to the second district, passed into the second district, and the defendant was put on trial in the district court for the second district, in which was Pierce county, and a verdict of guilty found against him on the original indictment. It was held that the defendant was not deprived of any rights conferred on him by that clause of the constitution entitling him to a trial in the district in which the crime was committed, which district must have been previously ascertained by law; and it was further held that the district court for Pierce county, in the first instance, and the district court for the second judicial district in the second place, had full and complete jurisdiction in the premises. Leschi v. Washington Territory:* 1 Wash. T'y, 13. § 1673. Offenses on the high seas.- A crime committed on waters on the sea-coast, which are without the boundaries of low-water mark, is committed on the high seas, within the meaning of the act of April 30, 1780, giving to the circuit court jurisdiction of crimes committed on the high seas, although such waters may be in a bay or roadstead within the jurisdictional limits of a foreign government. United States v. Ross * 1 Gall., 624.

§ 1674. At the time of the adoption of the constitution, the admiralty courts did not punish misdemeanors committed within the body of a county; and hence there must be an act of congress to punish such misdemeanors, or no jurisdiction over them exists in the circuit courts. United States v. New Bedford Bridge, 1 Woodb. & M., 470.

$1675. Locality is the chief test of admiralty jurisdiction over crimes as well as over torts, and a misdemeanor committed within the body of a county, though upon tide-water, is not within the criminal jurisdiction of courts of admiralty. Ibid.