declare that the external bounds of a State upon the seacoast are limited by those of its counties, is but another form of saying that both depend upon the will of the legislature. According to the decisions in the State courts, these boundaries are not necessarily identical.1 Thus, in Schooner Norway v. Jensen, in Illinois, Breese, C. J., said, with reference to the western part of Lake Michigan: "It is true, no portion of this vast body of water has been assigned to the counties bordering upon it, or received in any manner the attention of the legislature, yet it is, nevertheless, a portion of the navigable waters of this State and of our territory." The right of fishing within the distance of three miles from the shore was not considered in Regina v. Keyn, and appears to belong exclusively to the inhabitants of the littoral State.3 Schenck, 12 Ired. 304; Wallace v. Trustees, 84 N. C. 164; People v. Hill, 7 Cal. 97; San Francisco v. Canavan, 42 Cal. 541; State v. Branin, 3 Zab. 485; Pell v. Newark, 40 N. J. L. 71; Detroit v. Blackeby, 21 Mich. 84; Barner . District of Columbia, 91 U. S. 540; Beckwith. Racine, 7 Biss. 142. 1 Mahler v. Norwich Transportation Co., 35 N. Y. 358; 45 Barb. 226; 30 How. 237; Manley v. People, 7 N. Y. 295, 299, 303; Dunham . Lamphere, 3 Gray, 268, 270; Commonwealth e. Roxbury, 9 Gray, 451, 494; Keyser r. Coe, 37 Conn. 597, 613; Powers e. Larrabee, 1 Wis. 200; State v. Cameron, 2 Chand. (Wis.) 172; Hart v. Rogers, 9 B. Mon. 418, 422; United States v. Bevens, 3 Wheat. 336, 386; Montgomery . Henry, 1 Dall. 49; Tyler v. People, 8 Mich. 320; 7 Mich. 161; 11 Am. L. Rev. 625. In this article in the American Law Review by Hon. Dwight Foster, it is said with reference to a nisi prius case tried in the Superior Court of Massachusetts in Barnstable County: "In the course of the trial, the presiding judge remarked: 'If the jurisdiction of the State extends to the distance of a marine league from the shore, as I suppose it does, it does not follow, as 2 52 Ill. 373, 380. 3 See Gammell v. Commissioners of Woods and Forests, 3 Macq. 149; Dunham v. Lamphere, 3 Gray, 268; Schultes, Aquatic Rights, 3; Chitty on the Prerogative, 100; Vattel, tit. 1, c. 23; Puffendorf, IV. 4; VII. 8; Craig, Jus Feud. lib. 1, 15, § 13; Lawrence's Wheaton's Int. Law, pt. II. c. 4; § 14. All political bodies are not limited by the lines which bound their sub-divisions. Counties are made up of towns, cities, or parishes, and yet the seashore between high and low-water mark, though within the county at low tide,2 is presumed to be extra-parochial with respect to jurisdiction.3 This presumption applies to the shore of an arm of the sea and of a tidal river 5 as well as to the shore of the external coast. § 15. In Regina v. Keyn, Kelly, C. B., and Sir R. Phillimore doubted whether Parliament could, consistently with a due regard to the rights of other nations and the principles of international law, create a general jurisdiction over the threemile belt. It appears, however, to admit of little doubt that there is no legal restraint upon the legislature to assert and exercise such power. The subject was discussed in Parliament shortly after the above decision, and a statute was enacted by which foreigners, passing in foreign vessels, within three miles of the shore, were made subject to the criminal law of England. This statute appears to extend the juris diction only. Martens, Precis du Droit, § 153; Hall's International Law, 125. In the recent English work by Coulson and Forbes on Waters (pp. 2, 4, 11) it said that a nation may bind itself by treaty, and perhaps by non-user, from participating in the common right of fishing at certain places in the sea in favor of other nations; and that "there can be no doubt but that by treaty, or by the implied assent of nations, the right of fishing within three miles of the coast of the United Kingdom is vested exclusively in the inhabitants subjects of her Majesty." 1 Embleton v. Brown, 3 El. & El. 234; Regina v. Musson, 8 El. & Bk. 900; ante, § 13. * Regina v. Musson, 8 El. & Bk. 900; Waterloo Bridge Co. v. Cull, 28 L. J. Q. B. 75; 5 Jur. 1288. See Hale, De Jure Maris, c. 6, I; Calmady v. Rowe, 6 C. B. 880; Regina v. Gee, 1 El. & El. 1068; McCannon v. Sinclair, 2 Ib. 53; Perrott v. Bryant, 2 Y. & C. 61, 69; 31 & 32 Vict. c. 122, § 27; Blackpool Pier Co. v. Fylde Union, 46 L. J. M. C. 189; 36 L. T. 251; Reg. v. Newport, 31 L. J. M. C. 267. 3 Ipswich Dock Commissioners v. St. Peter, 7 B. & S. 310. 4 Bridgewater Trustees v. Bootlecum-Linacre, L. R. 2 Q. B. 4; 7 B. & S. 348; Cory v. Bristow, 2 App. Cas. H. L. 262. Rex v. Landulph, 1 Mod. & Rob. 393, seems to apply to parishes bordering on private streams. 5 Post, c. 3. "See Regina v. Keyn, 2 Ex. D. 63. 7 41 & 42 Vict. c. 73, entitled The Territorial Waters Act. In the House of Lords, the Lord Chancellor (Lord Cairns), in duscussing the proposed legislation, said: "The jurisdiction to which he had to call attention was § 16. The effect of legislation relating to territorial waters has also been brought in question. In Regina v. Keyn,1 the not over rivers, bays, or harbours, because in respect of that no controversy had ever arisen, but the jurisdiction over the territorial waters in that belt or zone of the high seas which more or less surrounded the shores of the empire. This, at first sight, would appear to be a question of law. No doubt it was a question of law, but he rather thought of that which had been described as the first law of nature the law of self-preservation. It was necessary, to some extent and in some measure, that there should be a territorial jurisdiction over the high seas surrounding the seaboard. No empire which had a seaboard could be allowed to remain without a jurisdiction of that kind. If in the case of such an empire it was held that the jurisdiction of the kingdom ended with the dry land, the consequence would be that the subjects of that kingdom in the presence of foreigners would be absolutely without defence from the moment they entered the sea for the purpose of bathing, or fishing, or for any other purpose. Not only so, but when on dry land they would be without a protection, because if no jurisdiction from the land extended to the sea surrounding the seaboard, people from all parts of the world might come to the part of the high sea contiguous to the land and resort to practices which might be of the most serious character to people on shore. So, again, in the case of war, hostilities carried on by belligerents outside the shore might expose a neutral power to the greatest danger. It might be asked whether the question was not solved, so far, at all events, as to the low-water mark to which unquestionably the territorial jurisdiction extended. With regard to the low water mark, it must be remembered that there were parts of the coasts where there were considerable intervals between high and low-water marks, and also there were in the kingdom, as their lordships knew, many places where the sea came so close to the clifts that there was absolutely no horizontal interval between high and low-water mark. It had been suggested, or might be suggested, that if the jurisdiction of this country extended over the part of the high seas immediately adjoining the shore, inasmuch as the right of passage over that part was allowed to foreign ships, it would be unfair to claim such jurisdiction as against them. He was quite willing to concede the right of passage contended for, but he had imagined that it was to be conceded on this footing and this footing only that those who availed themselves of the rights of passage should not expose themselves to any complaint of a violation of the rights of those by whom the right of passage was conceded. In truth, any such exemption would apply to the case of foreign ships coming into one of our bays." With respect to the decision in Regina v. Keyn, the Lord Chancellor said: "One of the learned judges, for whom they all had the greatest respect, and whose judgment, from his experience in criminal cases, was of the greatest weight - Mr. Justice Lush-stated that though he concurred with the Lord Chief Justice in that learned judge's view of the case, yet he wished to guard himself in this particular case with respect to the limits of the high seas." He then quoted the passage in the opinion of Lush, J., in which that judge declined to adopt any expressions implying a doubt as to the competency of Par12 F. D. (3. provision of the Merchant Shipping Act,1 authorizing the detention of a foreign vessel which had caused injury to the liament to legislate for these waters, and proceeded: "As he understood these words, if Sir Robert Lush had found that in the particular place Parliament had stepped in and said that portion of the water was part of the United Kingdom, he would have been of opinion that the Crown had territorial jurisdiction over it, and the conviction ought not to quashed. It was fortunate for the prisoner in the 'Franconia' case, though not fortunate for the vindication of the law, that Mr. Justice Lush was under the impression that that had not been done which really had been done. It appeared that in an Act of 1848 for the regulation of customs there was a provision authorizing the Lords of the Treasury to establish ports in many places where ports were required, and to define their limits. Under that provision the Lords of the Treasury issued a warrant, which was inserted in the London Gazette of the 3rd of March, 1848. In that warrant were these paragraphs: 'That the limits of the port of Dover shall commence at St. Margaret's Bay aforesaid, and continue along the said coast of Kent to Cape Point in the said county. That the limits of the port of Folkestone shall commence at Cape Point aforesaid, and continue along the coast to Dungeness, in the said county.' 'And we, the said Commissioners of Her Majesty's Treasury, do further declare that the limits seaward of the said ports shall extend to a distance of three miles from low-water mark, out to sea, and that the limits of such ports shall include all islands, bays, harbours, rivers, and creeks within the same respectively.' So that under Parliamentary powers the proper authorities had declared, long before the 'Franconia' case, that the limits of the Port of Dover extended three miles out to sea. He understood the view of the majority of the judges to be this, there was one jurisdiction by land and the other by sea; that the jurisdiction by land was one limited by the limits of counties, taking into the county the low-water mark, and the harbours and rivers within the county; and the jurisdiction by sea, the old jurisdiction of the Lord High Admiral now exercised by the Central Criminal Court; that the jurisdiction of the Lord High Admiral extended to the high seas, but the persons over whom it was exercised must be British subjects, not foreigners; and that the Central Criminal Court had no jurisdiction over the persons of foreigners beyond the lowwater mark. That he understood to be the common ground on which the majority of the judges acted in quashing the conviction. And taking that as the ratio decidendi of the judges in a decision which he accepted, it would at first sight appear that there was nothing more for him to do than to ask the favorable consideration of their lordships for a Bill to amend the law; but there fell some observations from Sir Robert Phillimore, the Lord Chief Baron, and the Lord Chief Justice, whose judgment was the most elaborate, and might be regarded as the leading judgment of the majority, and which contained a principle that seemed to challenge the right of Parliament to legislate on this subject. Expressions of the Lord Chief Justice would certainly seem to imply that we could not legislate with respect to the high seas even within the limits of the belt or zone to which he had referred without the consent of foreign nations, or until after communication with foreign 1 17 & 18 Vict. c. 104, § 527. property of English subjects in any part of the world, if at any time thereafter such ship was found in any port or river of the United Kingdom, or within three miles of the coast, was considered insufficient to include the three-mile belt within the realm, and Cockburn, C. J., doubted whether it would apply to a ship on a foreign voyage. In 1794, Congress recognized the three-mile rule by authorizing the district courts to take cognizance of complaints in cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof.1 In the case of the Brig Ann,2 a seizure was made off Newburyport, and within three miles of the shore, for violation of the embargo acts. Story, J., held that, as a principle of public law, the waters within the three-mile belt form part of the nation's territory;3 and that, as the acts in question extended to all places within the jurisdiction of the United States, these waters, as well as ports and rivers, were within the operation of the statutes. In Dunham v. Lamphere, Shaw, C. J., expressed the opinion that, by virtue of a statute of Massachusetts, which prohibited fishing with a seine within one mile of the shores of Nantucket and other small islands, that extent of sea was within the territorial limits of the State. It is now provided by statute, in this and other nations. This was a very serious question. If the judgments of those learned judges amounted, as they were supposed to do, to a proposition of that kind, of course Parliament would be exceeding its powers if it entered into legislation applying to that belt or zone with the view of making foreigners answerable to our law. But he would ask their lordships to consider whether there was any foundation for that principle. He ventured to think there was not, and he thought it would be a very serious thing if there were." London Times, Feb. 15, 1878, reprinted in 2 Halleck's Int. Law (Baker's ed.), 559. Blackpool Pier v. Fylde, 46 L. J. M. C. 189. On March 30, 1882, in reply to a question in reference to the projected channel tunnel, in the House of Commons, Mr. Joseph Chamberlain, president of the Board of Trade, said that the chairman of the Southeastern Railway had been warned that the government claimed the bed of the sea for three miles below low-water mark, and held themselves free to use any powers at their disposal as Parliament may direct, or the national interest may require. 11 Stats. at Large, p. 384, c. 50, § 6; 1 Kent Com. 26–30. 1 Gall. 62. 3 Citing Church v. Hubbard, 1 Cranch, 187, 234. Dunham v. Lamphere, 3 Gray, 268, 269. |