ARGUMENT OF CHARLES B. WARREN. 1085 



MR. WARREN : Yes, your Honour, but these decisions that I am now 

 reading establish that the rule of common law did not and does not 

 extend the jurisdiction beyond the double of the 3-mile distance 

 fixed by the terms of the treaty of 1818. 



I continue reading the decision from near the bottom of p. 301 : 



" 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 limits 

 of the county of Suffolk, in this direction not only includes the place 

 in question, but all the waters down to a line running across from 

 the lighthouse on the Great Brewster to Point Alderton. In the 

 sense of the common law, these seem to me the true fauces terrce, 

 where the main ocean terminates." 



THE PRESIDENT: These are all criminal cases, I suppose, in which 

 these opinions were expressed ? 



MR. WARREN: This particular case involved an offence committed 

 on board a vessel, and the question was whether the vessel was within 

 the county; the whole question was whether the place where the 

 vessel lay was a part of the State of Massachusetts. 



THE PRESIDENT : Yes, but these were criminal cases in which these 

 opinions were expressed. 



MR. WARREN : Yes, Mr. President, just so. 



This statement which I have just read is very important, coming 

 from Mr. Justice Story. He was expressing an opinion as to what he 

 thought the limits of jurisdiction were. 



THE PRESIDENT : But it was for the purpose of deciding a criminal 

 case? 



MR. WARREN : No, Mr. President, he was here expressing an opinion 

 outside the case before the Court. 



JUDGE GRAY: Obiter dictum. 



MR. WARREN: Yes, your Honour; and the chart which I have sub- 

 mitted shows that the distance between Great Brewster the light- 

 house on Great Brewster and Point Alderton does not exceed If 

 miles. 



JUDGE GRAY: But you do not understand that he fixed that as a 

 limit between the fauces terras, which was to determine in all cases the 

 jurisdiction of the State over the waters enclosed? He says in that 

 case, that being the limit, clearly it was within the jurisdiction. 



MR. WARREN: No, if your Honour pleases, he went beyond the 

 spot where the vessel lay. 



JUDGE GRAY: He measured the distance between the fauces terrce, 

 and said that that ought to determine this case, no matter what the 



