1904 AWARD OF THE FISHERY COMMISSION. 



buoy and cables complained of were laid within the bay at a distance of 

 more than three miles from shore. The contention of the respondent 

 company was not sustained, and the injunction was retained. The judg- 

 ment of the judicial committee was delivered by Lord Blackburn, and 

 the attention of the Commission is directed to the following quotation 

 from the judgment, which, so far as judicial interpretation can affect 

 that object, must be held to set the question at rest : 



Before proceeding to discuss the second question, it is desirable to state the facts 

 which raise it. 



Conception Bay lies on the eastern side of Newfoundland, between two promon- 

 tories, the southern ending at Cape St. Francis, and the northern promontory at Split 

 Point. No evidence has been given, nor was any required, as to the configuration and 

 dimensions of the bay, as that was a matter of which the court could take judicial 

 notice. 



On inspection of the admiralty chart, the following statement, though not precisely 

 accurate, seems to their lordships sufficiently so to enable them to decide the question : 



The bay is a well-marked bay, the distance from the head of the bay to Cape St. 

 Francis being about forty miles, and the distance from the head of the bay to Split 

 Point being about fifty miles. The average width of the bay is about fifteen miles, 

 but the distance from Cape St. Francis to Split Point is rather more than twenty miles. 



The appellants have brought and laid a telegraph cable to a buoy more than thirty 

 miles within this bay. The buoy is more than three miles from the shore of the bay, 

 and in laying the cable, care has been taken not at any point to come within three 

 miles of the shore, so as to avoid raising any question as to the territorial dominion over 

 the ocean within three miles of the shore. Their lordships therefore are not called 

 npon to express any opinion on the questions which were recently so much discussed 

 in the case of The Queen r. Keyu (the Franconia case). 



The question raised in this case, and to which their lordships confine their judg- 

 ment, is as to the territorial dominion over a bay of configuration and dimensions such, 

 as those of Conception Bay above described. 



The few English common-law authorities on this point relate to the question as to 

 where the boundary of counties ends and the exclusive jurisdiction at common law 

 of the court of admiralty begins, which is not precisely the same question as that 

 under consideration: but this much is obvious, that, when it is decided that any bay 

 or estuary of any particular dimensions is or may be a part of an English county, and 

 so completely within the realm of England, it is decided that a similar bay or estuary 

 is or may be part of the territorial dominions of the country possessing the adjacent 

 shore. 



The earliest authority on the subject is to be found in the grand abridgment of 

 Fitzherbert " Corone, 399," whence it appears that in the 8 Edward II, in a case in 

 chancery (the nature and subject matter of which does not appear), Staunton, justice, 

 expressed an opinion on the subject. There are one or two words in the common 

 printed edition of Fitzherbert which it is not easy to decipher or translate, but subject 

 to that remark this is a translation of the passage : " Nota per Staunton, justice, that 

 that is not saflco [which Lord Coke translates ' part'] of the sea where a man can see 

 what is done from one part of the water and the other, so as to see from one land to the 

 other ; that the coroner shall come in such case and perform his office, as well as com- 

 ing and going in an arm of the sea, there where a man can see from one part of the 

 other of the [a word not deciphered], that in such a place the country can have conu- 

 sance, &c." 



This is by no means definite, but it is clear Staunton thought some portions of the 

 aea might be in a county, and within the jurisdiction of the jury of that county, and 

 at that early time, before cannon were in use, he can have had in his miiid no' refer- 

 ence to cannon-shot. 



Lord Coke recognizes this authority, 4 Institute, 140, and so does Lord Hale. The 

 latter, in his treatise " De Jure Maris," part I, cap. 4, uses this language : " That arm 

 or branch of the sea which lies within the ' fauces terne,' where a man may reasonably 

 discern between shore and shore, is, or at least may be, within the body of a county, 

 and^therefore within the jurisdiction of the sheriff or coroner. Edward II, Corone, 



Neither of these great authorities had occasion to apply this doctrine to any particu- 

 lar place, nor to defiue what was meant by seeing or discerning. If it means to see 

 what men are doing, so, for instance, that eye-witnesses on shore could say who was 

 o blame in a fray, on the waters, resulting in death, the distance would be very lim- 

 ited ; if to discern what great ships were about, so as to be able to see their maneuvers, 

 it would be very much more extensive ; in either sense it is indefinite. But in Regina 

 Cunningham, (Bells C. C., 86), it did become necessary to determine whether a par- 

 :nlar spot 111 the Bristol Channel, on which three foreigners on board a foreign ship 



