1902 AWARD OF THE FISHERY COMMISSION. 



The United States renounced the right to take fish in such bays. 

 The Treaty of Washington, 1871, frees them from such renunciation. 

 The restriction or exclusion is altogether removed. The case of the 

 Queen vs. Keyn (L. R. 2 Ex. Div. 63), so much relied on in the Answer 

 and Brief of the United States, affords no support whatever to the posi- 

 tion there taken. The question involved in that case was whether or 

 not a foreigner commanding a foreign vessel could legally be convicted 

 of manslaughter committed whilst sailing by the external coast of Eng- 

 land, within three miles from the shore, in the prosecution of a voyage 

 from one foreign port to another. 



The court, by a majority of seven judges to six, held the conviction 

 bad, on the ground that the jurisdiction of the common-law courts only 

 extended to offenses committed within the realm, and that at common 

 law such realm did not extend on the external coasts beyond low-water 

 mark. None of the judges, however, doubted that Parliament had full 

 power to extend the laws of the realm to a zone of three miles around 

 the outer coast if it saw fit so to do. The Lord Chief Justice of England, 

 by whose casting judgment the conviction was quashed, not only guarded 

 himself expressly against being understood as throwing any doubt what- 

 ever upon the jurisdiction of the courts over inland or territorial waters, 

 but emphatically affirmed such jurisdiction. " But," says he (p. 162), 

 "only so much of the laud of the outer coast as was uncovered by the 

 sea, was held to be within the body of the adjoining county. If an offense 

 was committed in a bay, gulf, or estuary, inter fauces terrce, thecommonlaw 

 would deal with it because the parts of the sea so circumstanced were 

 held to be within the body of the adjacent county or counties; but 

 along the coast, on the external sea, the jurisdiction ot the common 

 law extended no farther than to low-water mark." Again, at p. 197, he 

 thus expresses himself: "To come back to the subject of the realm, I 

 cannot help thinking that some confusion arises from the term ' realm y 

 being used in more than one sense. Sometimes it is used, as in the 

 statutes of Eichard II, to mean the land of England and the internal sea 

 within it, sometimes as meaning whatever the sovereignty of the Crown 

 of England extended or was supposed to extend over. When it is used 

 as synonymous with territory, I take the true meaning of the term ' realm 

 of England' to be the territory to and over which the common law of 

 England extends. In other words, all that is within the body of any 

 county, to the exclusion of the high seas, which come under a different 

 jurisdiction only because they are not within any of those territorial 

 divisions into which, among other things, for the administration of the 

 law, the kingdom is parceled out. At all events I am prepared to abide 

 by the distinction taken in the statutes of Richard II, between the 

 realm and the sea." This clearly shows that as far back as the time of 

 Richard II, beyond which legal memory is not permitted to run, the 

 realm of England was known and understood to include within its 

 bounds those inland waters which were inclosed from the high seas be- 

 tween headlands. 



The Answer of the United States (p. 5) quotes with approbation the 

 strong condemnatory language of the Lord Chief Justice, and holds it 

 out to the Commissioners and the world as applicable to the contention 

 of Great Britain in this matter. If the language was really so applied, 

 it might be considered as damaging to the case of Great Britain, but if 

 it has no reference to any question now before the Commission, then it 

 is submitted that its presence in the Answer is calculated to mislead, 

 la the course of his judgment, Sir Alexander Cockburn, referring to 

 claims made by England centuries ago, not merely to exclusive domin- 



