an injunction against the Appellant Company restraining them from laying a telegraph cable in Conception Bay, Newfoundland, and thereby infringing rights granted by the legislature of that island to the Respondent Company. The Appellant Company contended that Conception Bay (which is rather more than twenty miles wide at its mouth and runs inland between forty and fifty miles) was not British territorial waters, but a part of the high seas. The buoy and cables complained of were laid within the bay at a distance of more than three miles from the shore.

The judgment was delivered by Lord BLACKBURN, who, after reviewing the cases under the Common Law of England continued: "Passing from the Common Law of England, to the general law of nations, as indicated by the text writers on international jurisprudence, we find an universal agreement that harbors, estuaries, and bays landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is "a bay " for this purpose.

"It seems generally agreed that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory, and with this idea, most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting, therefore, a width of one cannon-shot from shore to shore, or three miles; some a cannon-shot from each shore, or six miles; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain, that part of the British Channel which in Reg. v. Cunningham was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays, and Chancellor Kent, in his Commentaries, though by no means giving the weight of his authority to this claim, gives some reasons for not considering it altogether unreasonable. It does not appear to their Lordships that jurists and text-writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination. If it was necessary in this case to lay down a rule the difficulty of the task would not deter their Lordships from attempting to fulfill it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Govern

ment has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive), the British Legislature has by acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland.

"Their Lordships, therefore, will humbly recommend to Her Majesty that the order of the Supreme Court of Newfoundland be affirmed and that this appeal be dismissed with costs."1

MANCHESTER v. MASSACHUSETTS.

SUPREME COURT OF THE UNITED STATES, 1890.

(139 United States Reports, 240.)

Manchester, a citizen of Rhode Island was indicted in Massachusetts for taking fish (Menhaden) in Buzzard's Bay, in contravention of the laws of Massachusetts regulating the fishery in that bay. Manchester held a United States license for the Menhaden fishery; and disputed the right of Massachusetts to any jurisdiction over such fisheries.

Held that, in the absence of legislation by Congress on this subject, the States may legally make regulations for the fisheries within their territorial waters.

Arthur Manchester was charged with fishing with a seine in Buzzard's Bay, within the jurisdiction of the Commonwealth of Massachusetts. The complaint is founded upon an act of the Massachusetts' Legislature (Laws of 1886, c. 192), entitled "An act for the protection of the fisheries in Buzzard's Bay," Section I. of which is as follows:

"No person shall draw, set, stretch or use any drag net, set net or

1 The Grange (1793), 1 Op. Att.-Gen. 32. In the case of the British ship Grange, captured by a French privateer in Delaware Bay, in 1793, Attorney-General Randolph held that Delaware Bay formed a part of the territorial waters of the United States, and was therefore neutral ground. He rested his arguments mainly upon the fact that the United States were proprietors of the lands, on both sides of the bay. Every consideration is exclu led, "how far the spot of seizure was capable of being defended by the United States. For, although it will not be conceded that this could not be done, yet will it rather appear, that the mutual rights of the States of New Jersey and Delaware, up to the middle of the river (or bay), supersede the necessity of such an investigation."

"No. The corner-stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the sea."

gill net, purse or sweep seine of any kind for taking fish anywhere in the waters of Buzzard's Bay within the jurisdiction of this Commonwealth, nor in any harbor, cove or bight of said bay except as hereinafter provided."

Buzzard's Bay, at its mouth, is more than one and less than two marine leagues in width-at the point where the acts complained of took place, it is more than two leagues in width, and the nearest mainland is not over a mile and a quarter away.

The defendant requested the Court of Massachusetts for a number of rulings, the first and third of which are (1) The act complained of was on the high seas, and without the jurisdiction of Massachusetts. (3) The defendant cannot be held unless the act complained of was done and committed within the body of a county, as understood at common law.

These instructions were refused, and the court told the jury that if they found that the place where the acts were done was within a marine league of the shore, it was within the jurisdiction of the Commonwealth.

The decision being against the defendant, he appealed to the Supreme Court of the United States.

Mr. Justice BLATCHFORD, after stating the case, delivered the opinion of the court:

"The principal contentions in this court on the part of the defendant are that, although Massachusetts, if an independent nation, could have enacted a statute like the one in question, which her own courts would have enforced, and which other nations would have recognized, yet when she became one of the United States, she surrendered to the general government her right of control over the fisheries of the ocean, and transferred to it her rights over the waters adjacent to the coast and a part of the ocean; that, as by the Constitution, article 3, section 2, the judicial power of the United States is made to extend to all cases of admiralty and maritime jurisdiction, it is consistent only with that view that the rights in respect of fisheries should be regarded as national rights, and be enforced only in national courts; that the proprietary right of Massachusetts is confined to the body of the county; that the offense committed by the defendant was committed outside of that territory, in a locality where legislative control did not rest upon title in the soil and waters, but upon rights of sovereignty inseparably connected with national character, and which were intrusted exclusively to enforcement in admiralty courts, that the Commonwealth has no jurisdiction upon the ocean within three miles of the shore; that it could not, by the statute in question, oust the United States of jurisdiction; that fish

ing upon the high seas is in its nature an integral part of national commerce, and its control and regulation are necessarily vested in Congress and not in the individual states; that Congress has manifested its purpose to take the regulation of coast fisheries, in the particulars covered by the Massachusetts statute in question, by the joint resolution of Congress of February 9, 1871 (16 Stat. 593), establishing the Fish Commission, and by title 51 of the Revised Statutes, entitled 'Regulation of Fisheries,' and by the act of February 28, 1887, c. 288 (24 Stat. 434), relating to the Mackerel fisheries, and by acts relating to bounties, privileges, and agreements, and by granting the license under which the defendant's steamer was fishing; and that, in view of the act of Congress authorizing such license, no statute of a state could defeat the right of the defendant to fish in the high seas under it.

By the Public Statutes of Massachusetts, part 1, title 1, c. 1, sections 1 and 2, it is enacted as follows: Section 1. The territorial limits of this Commonwealth extend one marine league from its seashore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width between its headlands, a straight line from one headland to the other is equivalent to the shore line.' Section 2. 'The sovereignty and jurisdiction of the Commonwealth extend to all places within the boundaries thereof, subject to the rights of concurrent jurisdiction granted over places ceded to the United States.' The same Public Statutes part 1, title 1, c. 22, section 1, contain the following provision: The boundaries of counties bordering on the sea shall extend to the line of the Commonwealth, as defined in section one of chapter one.' Section 11 of the same chapter is as follows: The jurisdiction of counties separated by waters within the jurisdiction of the Commonwealth shall be concurrent upon and over such waters.' By section 2 of chapter 195 of the acts of Massachusetts of 1881, it is provided as follows: 'Section 2. The harbor and land commissioners shall locate and define the courses of the boundary lines between adjacent cities and towns bordering upon the sea, and upon arms of the sea from highwater mark outward to the line of the Commonwealth, as defined in said section one [section one of chapter one of the General Statutes], so that the same shall conform as nearly as may be to the course of the boundary lines between said adjacent cities and towns on the land; and they shall file a report of their doings with suitable plans and exhibits, showing the boundary lines of any town by them located and defined, in the registry of deeds in which deeds of real estate situated in such town are required to be recorded, and also in the office of the secretary of the Commonwealth.'

"The report of the Superior Court states that the point where the defendant was using the seine was within that part of Buzzard's Bay which the harbor and land commissioners, acting under the provisions of the act of 1881, had, so far as they were capable of doing so, assigned to and made part of the town of Falmouth; that the distance between the headlands at the mouth of Buzzard's Bay 'was more than one and less than two marine leagues;' that 'the distance across said bay, at the point where the acts of the defendant were done, is more than two marine leagues, and the opposite points are in different counties;' and that the place where the defendant was so engaged with said seine was about, and not exceeding, one mile and a quarter from a point on the shore midway from the north line of the town of Falmouth to the south line' of that town.

6

"Buzzard's Bay lies wholly within the territory of Massachusetts, having Barnstable county on the one side of it, and the counties of Bristol and Plymouth on the other. The defendant offered evidence that he was fishing for menhaden only, with a purse seine; that the bottom of the sea was not encroached upon or disturbed; that it was impossible to discern objects across from one headland to the other at the mouth of Buzzard's Bay;' and that the steamer was duly enrolled and licensed at the port of Newport, Rhode Island, under the laws of the United States, for carrying on the menhaden fishery.

"By section 1 of chapter 196 of the laws of Massachusetts of 1881, it was enacted as follows: Section 1. The boundaries of cities and towns bordering upon the sea shall extend to the line of the Commonwealth as the same is defined in section one of chapter one of the General Statutes.' Section 1 of chapter 1 of the General Statutes contains the provisions before recited as now contained in the Public Statutes, chapter 1, section 1, and chapter 22, sections 1 and 11. Buzzard's Bay was undoubtedly within the territory described in the charter of the Colony of New Plymouth and the Province charter. By the definitive treaty of peace of September 3, 1783, between the United States and Great Britain (8 Stat. 81), His Britannic Majesty acknowledged the United States of which Massachusetts Bay was one, to be free, sovereign and independent States, and declared that he treated with them as such, and, for himself, his heirs and successors, relinquished all claims to the government, proprietary and territorial rights of the same and every part thereof. Therefore, if Massachusetts had continued to be an independent nation, her boundaries on the sea, as defined by her statutes, would unquestionably be acknowledged by all foreign nations, and her right to control the fisheries within those boundaries would be conceded. The