limits of the right of a nation to control the fisheries on its sea-coasts, and in the bays and arms of the sea within its territory, have never been placed at less than a marine league from the coast on the open sea; and bays wholly within the territory of a nation, the headlands of which are not more than two marine leagues, or six geographical miles, apart, have always been regarded as a part of the territory of the nation in which they lie. Proceedings of the Halifax Commission of 1877, under the treaty of Washington of May 8, 1871. Executive Document No. 89, 45th Congress, 2d session, Ho. Reps., pp. 120, 121, 166.

"On this branch of the subject the case of The Queen v. Keyn, 2 Ex. D. 63, is cited for the plaintiff in error; but there the question was not as to the extent of the dominion of Great Britain over the open sea adjacent to the coast, but only as to the extent of the existing jurisdiction of the Court of Admiralty in England over offenses committed on the open sea; and the decision had nothing to do with the right of control over fisheries in the open sea or in bays or arms of the sea.

"In all the cases cited in the opinions delivered in The Queen v. Keyn, wherever the question of the right of fishery is referred to, it is conceded that the control of fisheries, to the extent of at least a marine league from the shore, belongs to the nation on whose coast the fisheries are prosecuted.

"In Direct U. S. Cable Co. v. Anglo-American Tel. Co., 2 App. Cas. 394, it became necessary for the Privy Council to determine whether a point in Conception Bay, Newfoundland, more than three miles. from the shore, was a part of the territory of Newfoundland, and within the jurisdiction of its legislature. The average width of the bay was about fifteen miles, and the distance between its headlands was rather more than twenty miles; but it was held that Conception Bay was a part of the territory of Newfoundland, because the British government had exercised exclusive dominion over it, with the acquiescence of other nations, and it had been declared by act of Parliament to be part of the British territory, and part of the country made subject to the legislature of Newfoundland.'

"We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast; that bays wholly within its territory not exceeding two marine leagues in width at the mouth are within this limit; and that included in this territorial jurisdiction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free-moving fish, or fish attached to

or embedded in the soil. The open sea within this limit is, of course, subject to the common right of navigation; and all governments, for the purpose of self-protection in time of war or for the prevention of frauds on its revenue, exercise an authority beyond this limit. Gould on Waters, part 1, c. 1, §§ 1-17, and notes; Neill v. Duke of Devonshire, 8 App. Cas., 135; Gammell v. Commissioners, 3 Macq., 419; Mowat v. McFee, 5 Sup. Ct. of Canada, 66; The Queen v. Cubitt, 22 Q. B. D., 622; St. 46 and 47 Vict. C., 22.

"It is further insisted by the plaintiff in error, that control of the fisheries of Buzzard's Bay is, by the constitution of the United States, exclusively with the United States, and that the statute of Massachusetts is repugnant to that Constitution and to the laws of the United States. * * *

"Under the grant by the Constitution of judicial power to the United States in all cases of admiralty and maritime jurisdiction, and under the rightful legislation of Congress, personal suits on maritime contracts or for maritime torts can be maintained in the state courts; and the courts of the United States, merely by virtue of this grant of judicial power, and in the absence of legislation by Congress, have no criminal jurisdiction whatever. The criminal jurisdiction of the courts of the United States is wholly derived from the statutes of the United States. ***

"In each of the cases of United States v. Bevans, 3 Wheat., 336, and of Commonwealth v. Peters, 12 Met., 387, the place where the offense was committed was in Boston Harbor; and it was held to be within the jurisdiction of Massachusetts, according to the meaning of the statutes of the United States which punished certain offenses committed upon the high seas or in any river, haven, basin or bay 'out of the jurisdiction of any particular state.' The test applied in Commonwealth v. Peters, which was decided in the year 1847, was that the place was within a bay not so wide but that persons and objects on the one side can be discerned by the naked eye by persons on the opposite side,' and was therefore within the body of a county. In United States v. Bevans, MARSHALL, C. J., said: "The jurisdiction of a state is coextensive with its territory; coextensive with its legislative power. The place described is unquestionably within the original territory of Massachusetts. It is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States.' If the place where the offense charged in this case was committed is within the general jurisdiction of Massachusetts, then, according to the principles declared in Smith v. Maryland, the statute in question is not repugnant to the constitution and laws of the United States.

"It is also contended that the jurisdiction of a state as between it and the United States must be confined to the body of counties; that counties must be defined according to the customary English usage at the time of the adoption of the Constitution of the United States; that by this usage counties were bounded by the margin of the open sea; and that, as to bays and arms of the sea extending into the land, only such or such parts were included in counties as were so narrow that objects could be distinctly seen from one shore to the other by the naked eye. But there is no indication that the customary law of England in regard to the boundaries of counties was adopted by the Constitution of the United States as a measure to determine the territorial jurisdiction of the states.

"The extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation; and, except so far as any right of control over this territory has been granted to the United States, this control remains with the state. In United States v. Bevans, MARSHALL, C. J., in the opinion, asks the following questions: Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise? As the powers of the respective Governments now stand, if two citizens of Massachusetts step into shallow water where the tide flows, and fight a duel, are they not within the jurisdiction, and punishable by the laws of Massachusetts ?' The statutes of the United States define and punish but few offenses on the high seas, and, unless other offenses when committed in the sea near the coast can be punished by the states, there is a large immunity from punishment for acts which ought to be punishable as criminal. Within what are generally recognized as the territorial limits of states by the law of nations, a state can define its boundaries on the sea and the boundaries of its counties; and by this test the Commonwealth of Massachusetts can include Buzzard's Bay within the limits of its counties.

"The statutes of Massachusetts, in regard to bays at least, make definite boundaries which, before the passage of the statutes, were somewhat indefinite; and Rhode Island and some other states have passed similar statutes defining their boundaries. Public Statutes of Rhode Island, 1882, c. 1, §§ 1, 2; c. 3, § 6; Gould on Waters, $ 16 and note. The waters of Buzzard's Bay are, of course, navigable waters of the United States, and the jurisdiction of Massachusetts over them is necessarily limited, Commonwealth v. King, 150 Mass., 221; but there is no occasion to consider the power of the United States to regulate or control, either by treaty or legislation, the fisheries in these waters, because there are no existing

treaties or acts of Congress which relate to the menhaden fisheries in such a bay.

"The rights granted to British subjects by the treaties of June 5, 1854, and May 8, 1871, to take fish upon the shores of the United States, had expired before the statute of Massachusetts (St. 1886, c. 192) was passed, which the defendant is charged with violating. The Fish Commission was instituted for the protection and preservation of the food fishes of the coast of the United States.'

"Title 51 of the Revised Statutes relates solely to food fisheries, and so does the Act of 1888. Nor are we referred to any decision which holds that the other acts of Congress alluded to apply to fisheries for menhaden, which is found as a fact in this case not to be a food fish, and to be only valuable for the purpose of bait and of manufacture into fish oil.

"The statute of Massachusetts which the defendant is charged with violating is, in terms, confined to waters, within the jurisdiction of this commonwealth;' and it was evidently passed for the preservation of the fish, and makes no discrimination in favor of citizens of Massachusetts and against citizens of other states. If there be a liberty of fishing for swimming fish in the navigable waters of the United States common to the inhabitants or the citizens of the United States, upon which we express no opinion, the statute may well be considered as an impartial and reasonable regulation of this liberty; and the subject is one which a State may well be permitted to regulate within its territory, in the absence of any regulation by the United States. The preservation of fish, even although they are not used as food for human beings, but as food for other fish which are so used, is for the common benefit; and we are of opinion that the statute is not repugnant to the constitution and the laws of the United States.

"It may be observed that § 4398 of the Revised Statutes (a re-enactment of § 4 of the joint resolution of February 9, 1871), provides as follows, in regard to the Commission of Fish and Fisheries: The commissioner may take or cause to be taken at all times, in the waters of the sea-coast of the United States, where the tide ebbs and flows, and also in the waters of the lakes, such fish or specimens thereof as may in his judgment, from time to time, be needful or proper for the conduct of his duties; any law, custom or usage of any state to the contrary notwithstanding.' This enactment may not improperly be construed as suggesting that, as against the law of a state, the Fish Commissioner might not otherwise have the right to take fish in places covered by the State law.

"The pertinent observation may be made that, as Congress does

not assert, by legislation, a right to control pilots in the bays, inlets, rivers, harbors, and ports of the United States, but, leaves the regulation of that matter to the states, Cooley v. Board of Wardens, 12 How., 299, so if it does not assert by affirmative legislation its right or will to assume the control of menhaden fisheries in such bays, the right to control such fisheries must remain with the State which contains such bays.

"We do not consider the question whether or not Congress would have the right to control the menhaden fisheries which the statute of Massachusetts assumes to control; but we mean to say only that as the right of control exists in the State in the absence of the affirmative action of Congress taking such control, the fact that Congress has never assumed the control of such fisheries is persuasive evidence that the right to control them still remains in the State."1

1In the case of Dunham v. Lamphere, 1855, 3 Gray, 268, before the Supreme Court of Massachusetts, SHAW, C. J., said: "We suppose the rule to be that those limits extend a marine league, or three geographical miles from the shore; and in ascertaining the line of shore this limit does not follow each narrow inlet or arm of the sea, but when the inlet is so narrow that persons and objects, can be discerned across it by the naked eye, the line of territorial jurisdiction stretches across from one headland to the other of such inlet."

(d) Marginal Seas.

THE QUEEN v. KEYN.

COURT OF CROWN CASES REserved, 1876.

(L. R., 2 Exchequer Division, 63.)

History of the development of the rule fixing the limit of territorial waters at three miles.

A foreigner, sailing along the English coast, within this three-mile zone, commits an offense against an English subject. Held, that he was not subject to the jurisdiction of the Admiralty, nor its successor the Central Criminal Court, in the abзence of an act of Parliament expressly conferring such jurisdiction.

The prisoner was indicted at the Central Criminal Court for the manslaughter of Jessie Dorcas Young on the high seas, and within the jurisdiction of the Admiralty of England. The deceased was a passenger on board the Strathclyde, a British steamer bound from London to Bombay. This vessel, when one and nine-tenths of a mile from Dover pier-head, and within two and a half miles from Dover beach, was run down and sunk by the Franconia, a German