cxxxvi INTRODUCTION 



and says, in the passage already cited, that the arm or branch of the sea, which lies 

 within the fauces ierrae, where a man may reasonably discern between shore and shore, 

 is, or at least may he, within the body of a county. Hawkins (PL Cr. b. ^, ch. 9, § 

 14) has expressed the rule in its true sense, and confines it to such parts of the sea, 

 where a man standing on the one side may see what is done on the other." ' 



In explanation of this passage tiie learned justice said: 



"I do not understand by this expression, that it is necessary, that the shores should 

 be so near, that all that is done on one shore could be discerned, and testified to with 

 certainty, by persons standing on the opposite shore; but that objects on the oppo- 

 site shore might be reasonably discerned, that is, might be distinctly seen with the 

 naked eye, and clearly distinguished from each other." " 



A scarcely less distinguished judge, Chief Justice Shaw, said in a 

 case involving the right of fishing: 



"We suppose the rule to be, that these 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 terri- 

 torial jurisdiction stretches across from one headland to the other of such inlet." ' 



If the language used by the Chief Justice Cockbum in Regina n. 

 Cunningham (Bell's Crown Cases, 72), decided in 1859, be inconsistent 

 with the common law as interpreted by such competent judges as Story 

 and Shaw, it is to be noted that the point involved in that case was 

 whether the common law court or the court of admiralty should take 

 jurisdiction of a purely municipal question; for Great Britain could, 

 under international law, properly exercise jurisdiction, as in this case, 

 of an offense against its laws, committed within "a quarter of a mile 

 of land which is left dry by the tide." 



The statesmen and jurists of Great Britain and the United States 

 thus seem to be in substantial accord upon the jurisdiction which each 

 country could rightfully exercise within the waters washing their respec- 

 tive shores and place this jurisdiction, in the absence of agreement or 

 treaty, at a marine league from the shore. Lord Fitzmaurice, in the 

 extract quoted, speaks of the jurisdiction as modified by custom or treaty, 

 and the great Lord Stowell indicated, in a case decided before him in the 

 year 1801, how the ordinary jurisdiction may be modified. 



Thus, m the second Twee Gebroeders (3 Rob. Reports, 336), he said: 



"The law of rivers flowing entirely through the provinces of one state is perfectly 

 clear. In the sea, out of the reach of cannon shot, universal use is presumed. In rivers 

 flowing through conterminous states, a common use to the different states is presumed. 

 Yet, in both of these, there may, by legal possibility, exist a peculiar property, exclud- 



m. S. 1.. Crush, s Mason, 290, 300 (1829). ^lh\A., pp. 301, 302. 



* Dunham v. Lamphere, 3 Gray's Reports 268, 270 (1855). 



