AWARD OF THE FISHERY COMMISSION 180") 



presume that be luul not read it very recently stated that the common 

 law lawyers were greatly puzzled and that the'civil law lawyers alone 



Mr. DANA. I said other lawyers, other than those who were strictly 

 trained in the common law. 



Mr. THOMSON. I think that I can give your exact language. 



Mr. DANA. You will find it on page 71 of oar argument. 



Mr. THOMSON. Mr. Dana said: 



The Franconia case, wliich attracted so much attention a short time ago, did nt raiw 

 this question, but it is of some importance for us to remember. There tht-re wa* no HUM- 

 tion of headlands. It was a straight-line coast, and the vessel was within threw nt'le* 

 of the shore. But what was the ship doing? She was bearing her way down the Engliah 

 Channel against the sea and wind, and she made her stretches toward the Englih hore. 

 coming as near as safety permitted, and then to the French shore. She was in innocent ue 

 of both shores. She was not a trespasser because she tacked within three miles of the 

 British shore. All this I conceded. It was a necessity, so long as that channel u us open to 

 commerce. The question which arose was this : A crime having been committed on boa til 

 of that ship while she was within three miles of the British coast, was it committed within 

 the body of the county ? Was it committed within the realm, so that an English sheriff 

 could arrest the man, an English grand jury indict him, an English jury convict him, under 

 English law, he being a foreigner on board a foreign vessel, bound from one foreign port 

 to another, while perhaps the law of his own country was entirely different f Well, it was 

 extraordinary to see how the common-law lawyers were put to their wits' end to make any- 

 thing out of that statement. The thorough-bred common-law lawyers were the men who 

 did not understand it ; it was others who sat upon the bench who understood it better. 



Now, I mean to say, that when my learned friend delivered himself 

 after this manner, I think that he forgot who composed the bench on 

 this occasion. That bench was wholly composed of common law law- 

 yers, with the solitary exception of Sir Robert Phillimore. The only 

 civil law judge who then sat on the bench, out of the whole thirteen, or 

 whatever was the number, was Sir Robert Phillimore: and the judg- 

 ment of the majority of the court was determined by a casting judg- 

 ment, which was delivered by the Lord Chief Justice, against the juris- 

 diction of the Crown ; and of course this is a decision of which I under- 

 stand that Mr. Dana approves. So far, however, from the common-law 

 lawyers having had nothing to do with this finding, the fact is, that if 

 it had not been for the common-law lawyers, no such decision would 

 have been given at all. 



Mr. DANA. I do not include the equity and chancery lawyers among 

 the others. 



Mr. THOMSON. No equity or chancery lawyers sat on the bench- 

 not one ; all the judges who sat on that bench were common-law judges, 

 except Sir Robert Phillimore, who was a judge of the high court of ad- 

 miralty ; and, as I have stated, the casting decision was given by Lord 

 Chief Justice Cockburn, himself a great common-law lawyer. 



How was the Parliament of England to exercise or give jurisdiction 

 over these waters, unless they were within the territorial jurisdiction of 

 the nation, for neither the Parliament of England nor the parliament of 

 any other country can possibly make laws for the government of the 

 high seas? The moment you get within the three-mile line of coastal 

 sea you are within the jurisdiction of the country whose coast is washed 

 by those waters. The Lord Chief Justice decided on a technical ground 

 against the authority of the Crown, but further stated his conviction 

 and so also expressly held all the other judges who agreed with him that 

 it was within the province and the power of the British Parliament I 

 pass an act by which its own jurisdiction and the jurisdiction of 

 courts (over these territorial waters which washed the coast) could 

 established and maintained; therefore, so far from this judgment 1 

 against the doctrine that there are such territorial waters, it 

 best authority which could possibly be given for saving that such 



