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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." i
In the case of Dunham v. Lamphere, 1853, 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 abzence 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 Adiniralty 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
steamer. In the collision, the deceased woman was drowned, and the prisoner, the captain of the Franconia, is convicted of manslaughter; but a question of law is reserved.
An objection was taken on the part of the prisoner that, inasmuch as he was a foreigner, in a foreign vessel, on a foreign voyage, sailing upon the high seas, he was not subject to the jurisdiction of any court in this country.
The Crown contends that inasmuch as, at the time of the collision, both vessels were within the distance of three miles from the English shore, the offense was committed within the realm of England, and is triable by the English court.
The case was argued before Cockburn, C. J., Lord Coleridge, C. J., Kelly, C. B., Sir R. Fhillimore, Bramwell, Pollock, and Amphlett, B. B., Lush, Brett, Grove, Denman, Archibald, * Field and Lindley, JJ.
COCKBURN, C. J;— “ The question is, whether the accused is amenable to our law, and whether there was jurisdiction to try him ?
“ The legality of the conviction is contested, on the ground that the accused is a foreigner; that the Franconia, the ship he commanded, was a foreign vessel, sailing from a foreign port, bound on a foreign voyage; that the alleged offense was committed on the high seas. Under these circumstances, it is contended that the accused, though he may be amenable to the law of his own country, is not capable of being tried and punished by the law of England.
“ The facts on which this defense is based are not capable of being disputed; but a twofold answer is given on the part of the prosecution :-1st. That, although the occurrence on which the charge is founded took place on the high seas in this sense that thu place in which it happened was not within the body of a county, it occurred within three miles of the English coast; that by the law of nations, the sea, for a space of three miles from the coast, is part of the territory of the country to which the coast belongs ; that, consequently, the Franconia, at the time the offense was committed, was in English waters, and those on board were therefore subject to English law.
“Secondly. That, although the negligence of which the accused was guilty occurred on board a foreign vessel, the death occasioned by such negligence took place on board a British vessel; and that, as a British vessel is, in point of law to be considered British territory, the offense, having been consummated by the death of the deceased in a British ship, must be considered as having been committed on British territory. * * *
“ According to the general law, a foreigner who is not resid* Archibald, J., died after the agument and before the judgment was delivered. ing permanently or temporarily in British territory, or on board a British ship, cannot be held responsible for an infraction of the law of this country.
“Unless, therefore, the accused, Keyn, at the time the offense of which he has been convicted was committed, was on British territory or on board a British ship, he could not be properly brought to trial under British law, in the absence of express legislation. * * *
“In the reign of Charles II., Sir Leoline Jenkins, then the judge of the Court of Admiralty, in a charge to the grand jury at an Admiralty sessions at the Old Bailey, not only asserted the king's sovereignty within the four seas, and that it was his right and province “to keep the public peace on these seas '—that is, as Sir Leoline expounds it, “to preserve his subjects and allies in their possessions and properties upon these seas, and in all freedom and security to pass to and fro on them, upon their lawful occasions, but extended this authority and jurisdiction of the King. "To preserve the public peace and to maintain the freedom and security of navigation all the world over; so that not the utmost bound of the Atlantic Ocean, nor any corner of the Mediterranean, nor any part of the South or other seas, but that if the peace of God and the King be violated upon any of his subjects, or upon his allies or their subjects, and the offender be afterwards brought up or laid hold of in any of His Majesty's ports, such breach of the peace is to be inquired of and tried in virtue of a commission of oyer and terminer as this is, in such county, liberty, or place as His Majesty shall please to direct—so long an arm hath God by the laws given to his vicegerent the King.' * * *
“Venice, in like manner, laid claim to the Adriatic, Genoa to the Ligurian Sea, Denmark to a portion of the North Sea.
“ The Portuguese claimed to bar the ocean route to India and the Indian Seas to the rest of the world, while Spain made the like assertion with reference to the West.
“ All these vain and extravagant pretensions have long since given way to the influence of reason and common sense.
“ If, indeed, the sovereignty thus asserted had a real existence, and could now be maintained, it would of course, independently of any question as to the three-mile zone, be conclusive of the present case. But the claim to such sovereignty, at all times unfounded, has long since been abandoned. No one would now dream of asserting that the sovereign of these realms has any greater right over the surrounding seas than the sovereigns on the opposite shores; or that it is the especial duty and privilege of the Queen of Great Britain to keep the peace in these seas; or that the Court of Admiralty could try a foreigner for an offense committed in a foreign vessel in all parts of the Channel.
“No writer of our day, except Mr. Chitty in his treatise on the prerogative, has asserted the ancient doctrine. Blackstone, in his chapter on the prerogative in the Commentaries, while he asserts that the narrow seas are part of the realm, puts it only on the ground that the jurisdiction of the Adiniralty extends over these seas.
“ He is silent as to any jurisdiction over foreigners within them. The concensus of jurists, which has been so much insisted on as authority, is perfectly unanimous as to the non-existence of any such jurisdiction. Indeed, it is because this claim of sovereignty is admitted to be untenable that it has been found necessary to resort to the theory of the three-mile zone.
“ It is in vain, therefore, that the ancient assertion of sovereignty over the narrow seas is invoked to give countenance to the rule now sought to be established, of jurisdiction over the three-mile zone.
“ If this rule is to prevail, it must be on altogether different grounds. To invoke, as its foundation or in its support, an assertion of sovereignty which, for all practical purposes, is, and always has been, idle and unfounded, and the invalidity of which renders it necessary to have recourse to the new doctrine, involves an inconsistency, on which it would be superfluous to dwell. I must confess myself unable to comprehend how, when the ancient doctrine as to sovereignty over the narrow seas is adduced, its operation can be confined to the three-mile zone. If the argument is good for anything, it must apply to the whole of the surrounding seas. But the counsel for the Crown evidently shrank from applying it to this extent. Such a pretension would not be admitted or endured by foreign nations. That it is out of this extravagant assertion of sovereignty that the doctrine of the three-mile jurisdiction, asserted on the part of the Crown, and which, the older claim being necessarily abandoned, we are now called upon to consider, has sprung up, I readily admit. * * *
“With the celebrated work of Grotius, published in 1609, began the great contest of the jurists as to the freedom of the seas. “ The controversy ended, as controversies often do, in a species of compromise. While maintaining the freedom of the seas, Grotius, in his work De Jure Belli et Pacis, had expressed an opinion that, while no right could be acquired to the exclusive possession of the ocean, an exclusive right or jurisdiction might be acquired in respect of particular portions of the sea adjoining the territory of individual states. * * *