The Sea & Its Arms
In reviewing the English Common Law regarding the "sea and its arms," Justice Gray, in Shively v. Bowlby, 152 U.S. 1 (1894) stated:
"By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiction of the crown of England, are in the king. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the king's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king, as the sovereign; and the dominion thereof, jus publicum, is vested in him, as the representative of the nation and for the public benefit. The great authority in the law of England upon this subject is Lord Chief Justice Hale, whose authorship of the treatise De Jure Maris, sometimes questioned, has been put beyond doubt by recent researches. Moore, Foreshore, (3d Ed.) 318, 370, 413."
The territorial limits of the fishery pertaining to the "sea and its arms" was stated by Justice Blatchford in Manchester v. Massachusetts, 139 U.S. 240 (1891):
"The limits of
the right of a nation to control the fisheries on its seacoasts, and in the bays and arms
of the sea within its territory, have never been placed at
less than a marine league from the coast on the open sea; and bays wholly within the
territory of a nation, the headlands of which are not more than two marine leagues, or six
geographical miles, apart, have always been regarded as a part of the territory of the
nation in which they lie. Proceedings of the Halifax Commission of 1877,
under the Treaty of Washington of May 8, 1871, Executive Document No. 89, 45th Congress,
2d session, (House R., pp. 120, 121, 166.)
."..In all the cases cited in the opinions delivered in Queen v. Keyn, wherever the question of the right of fishery is referred to, it is conceded that the control of fisheries, to the extent of at least a marine league from the shore, belongs to the nation on whose coast the fisheries are prosecuted. In Direct U. S. Cable Co. v. Anglo-American Tel. Co., L. R. 2 App. Cas. 394, it became necessary for the privy council to determine whether a point in Conception bay, Newfoundland, more than three miles from the shore, was a part of the territory of Newfoundland, and within the jurisdiction of its legislature. The average width of the bay was about 15 miles, and the distance between its headlands was rather more than 20 miles; but it was held that Conception bay was a part of the territory of Newfoundland, because the British government had exercised exclusive dominion over it, with the acquiescence of other nations, and it had been declared by act of parliament 'to be part of the British territory, and part of the country made subject to the legislature of Newfoundland.' We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tidewaters is a marine league from its coast; that bays wholly within its territory, not exceeding two marine leagues in width at the mouth, are within this limit; and that included in this territorial jurisdiction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free-moving fish, or fish attached to or imbedded in the soil. The open sea within this limit is, of course, subject to the common right of navigaton; and all governments, for the purpose of self-protection in time of war, or for the prevention of frauds on its revenue, exercise an authority beyond this limit. Gould, Waters, pt. 1, c. 1, 1-17, and notes; Neill v. Duke of Devonshire, L. R. 8 App. Cas. 135; Gammell v. Commissioners, 3 Macq. 419; Mowat v. McFee, 5 Can. Sup. Ct. 66; Queen v. Cubitt, 22 Q. B. Div. 622; St. 46 & 47 Vict. c. 22."
