That it would seem more proper to adopt the test of cannon shot. . . . which would, in case of waters whose headlands belong to the same sovereign, exclude all bays more than eighteen miles in diameter, assuming the range of cannon shot to be nine miles. But this should be made to yield to usage. If a particular nation has exercised dominion over a bay, and this has been acquiesced in by other nations, then the bay is to be regarded as belonging to such nations. We are quite certain that none of the American courts have passed upon this subject, although decisions holding that specified waters are within or without the jurisdiction of the Admiralty courts are numerous. The question has, however, been before the English courts upon two occasions at least.

Reg. vs. Cunningham et al. (Bell's Crown Cases, 72) was the case of a crime committed upon an American vessel lying in the Bristol Channel, about three-quarters of a mile off the shores of the county of Glamorgan, in Wales, but below or exterior to low-water mark, and perhaps ten miles from the shores of the county of Somerset, in England. The prisoners were indicted and tried in Glamorgan. The question was whether the crime was committed within the county of Glamorgan or upon the high seas. It was held that it was within the county. This crime was committed, it is true, within the marine league from shore, but the Court did not rest its conclusion upon that ground. Lord Chief Justice Cockburn, delivering the opinion of the Court, said:

Looking at the local situation of this sea, it must be taken to belong to the counties, respectively, by the shores of which it is bounded. . . . The whole of this inland sea, between the counties of Somerset and Glamorgan, is to be considered as within the counties by the shores of which its several parts are respectively bounded.

But perhaps the most thoroughly considered and important case is that of Direct U. S. Cable Co. vs. Anglo-American Telegraph Co. in the House of Lords (2 App. Cs., 349). It came up on an appeal from the Supreme Court of Newfoundland against an order confirming an injunction preventing the Direct Cable Co. from landing their wire upon the soil of Newfoundland, on the ground that it would be an infringement of the rights of the AngloAmerican Co. The cable, as a matter of fact, was buoyed in Conception Bay, more than a marine league from shore, and it nowhere came within that distance from the shore, purposely to avoid coming within territorial jurisdiction. But it was asserted that the whole of Conception Bay was within the territory and jurisdiction of Newfoundland. The Supreme Court of the Province so held, and the determination was upheld by the House of Lords in a somewhat elaborate opinion.

This opinion states that Conception Bay is a body of water having an average width of fifteen miles, a distance of forty miles from the head to one of the capes at the entrance and fifty miles to the other, and a distance of twenty miles between the headlands. Coming to the question, the Lords say (p. 419):

We find an universal agreement that harbors, estuaries and bays, landlocked, belong to the territory of the nation which possesses the shores around them, but no agreement as to what is the rule to determine what is "bay " for this purpose. It seems generally agreed that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is a part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting, therefore, a width of cannon shot from shore to shore; some a cannon shot from each shore; some an arbitrary distance of 10 miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham was held to be in the county of Glamorgan.

It does not appear to their lordships that jurists' and text writers are agreed what are the rules as to dimensions and configuration which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the State possessing the adjoining coasts, and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down a rule, the difficulty of the task would not deter their lordships from attempting to fulfill it. But in their opinion it is not necessary. It seems to them that in point of fact the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations. . . . This would be very strong in the tribunals of any country to show that by prescription this bay is a part of the exclusive territory of Great Britain. In a British tribunal it is decisive.

We must now examine the local circumstance touching the status of Chesapeake Bay, and then determine whether those waters should be held to be the open ocean or jurisdictional waters of the United States in the light of these authorities.

The headlands are about twelve miles apart and the bay is probably nowhere more than twenty miles in width. The length may be two hundred miles. To call it a bay is almost a misnomer. It is more

mighty river than an arm or inlet of the ocean. It is entirely encompassed about by our own territory, and all of its numerous branches and feeders have their rise and their progress wholly in and through our own soil. It can not become an international com

mercial highway; it is not and can not be made a roadway fronɩ one nation to another.

The second charter of King James I to the Virginia Company in the year 1609, granted

All those lands, countries, and territories situate, lying, and being in that part of America called Virginia, from the point of land called Cape or Point Comfort, all along the seacoast to the northward two hundred miles, and all along the seacoast to the southward two hundred miles, and all that space and circuit of land lying from the seacoast of the precinct aforesaid up into the land throughout from sea to sea, west and northwest, together with all the soils, grounds, havens, ports, . . . rivers, waters, fishings, &c., &c.

This language would seem to place Chesapeake Bay within the boundary lines of Virginia. A line running north (as near as may be) from Point Comfort along the seacoast crosses the mouth of the bay from Cape Henry to Cape Charles.

By the King James charter to Lord Baltimore in 1632, erecting the territory of Maryland, the southern boundary line is made to cross Chesapeake Bay from Smiths Point, at the mouth of the Potomac river, to Watkin's Point, on the eastern shore, which apparently places a portion of this bay within the territory of Maryland. Had this not been intended, the boundary would presumably have followed the shore line around the bay.

It is a part of the common history of the country that the States of Virginia and Maryland have from their earliest territorial existence claimed jurisdiction over these waters, and it is of general knowledge that they still continue to do so.

The legislation of Congress has assumed Chesapeake Bay to be within the territorial limits of the United States. The acts of July 31, 1789, Chap. 5; Aug. 4, 1790, Chap. 35; and March 2, 1799, Chap. 128, Sec. 11, establishing revenue districts, provided that "the authority of the officers of the district (Norfolk and Portsmouth) shall extend over all the waters, shores, bays, harbors, and inlets comprehended within a line drawn from Cape Henry to the mouth of James river." By section 549, R. S., U. S., the eastern judicial district for Virginia embraces the "residue of the State" not included in the western district. The boundaries of the State include all of Chesapeake Bay south of a line running from Smith's Point to Watkins' Point, and hence the eastern district must embrace so much of the bay.

The position taken by this Government and by England and France in the matter of the British brig Grange, captured in Delaware Bay in 1793 by the French steamer l'Embuscade (Am. State

Papers, vol. i, pp. 147, 148), has, it seems to us, an important bearing upon the question under discussion. The brig was seized and the crew made prisoners, the two foreign Governments being at war. The British Government must have demanded that the United States compel France to release the captured vessel on the ground that the seizure was unlawful as having been made in our territorial and neutral waters. The State papers do not show this demand, but it is not material. The opinion of the Attorney General was asked and was given somewhat elaborately by Mr. Randolph. (1 Op. Atty'sGen'l, 32.) It quotes the text writers and concludes that the whole. of Delaware Bay is within the territorial jurisdiction of the United States, regardless of the marine league or cannon-shot limit from the shore. The learned Attorney General says:

In like manner is excluded every consideration of how far the spot of seizure was capable of being defended by the United States; for although it will not be conceded that this could not be done, yet will rather appear that the mutual rights of the States of New Jersey and Delaware up to the middle of the river supersede the necessity of such an investigation. No. The corner stone of our claim is that the United States are proprietors of the lands on both sides of the Delaware from its head to its entrance into the sea.

Acting upon the opinion of the Attorney General, the Secretary of State (Mr. Jefferson) demanded that France should make restitution of the Grange, and set the prisoners taken upon her at liberty, which demand was promptly and cheerfully complied with by the French Government.

If it be said that the mere claims of a nation to jurisdiction over adjacent waters are to be accepted with some degree of hesitation, then the action in reference to the Grange is of much weight, for there the claim made by the United States was promptly acquiesced in by two great foreign powers, when passions were excited, and when such acquiescence was greatly against the immediate interest of one of the combatants, as well as against the general interest of both.

It will hardly be said that Delaware Bay is any the less an inland sea than Chesapeake Bay. Its configuration is not such as to make it so, and the distance from Cape May to Cape Henlopen is apparently as great as that between Cape Henry and Cape Charles.

Reflection upon the subject has caused the Court to consider this question of very considerable national importance. Contingencies might arise which would make it of very grave import. The "high sea" belongs to all alike. It is the great highway of nations. One

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can not lawfully do anything upon it which any other has not the right to do. One can not exercise sovereignty over it. Can an American court concede so much as to Chesapeake Bay? Other nations, by common consent of all, have well-recognized peaceable rights even in our territorial waters. Ought we to admit that they have any rights hostile to the United States, or can we permit belligerent operations between foreign nations within the shores of this bay? What injustice can be done to any other nation by the United States exercising sovereign control over these waters? What annoyance and what injury may not come to the United States through a failure to do so? Considering, therefore, the importance of the question, the configuration of Chesapeake Bay, the fact that its headlands are well marked, and but twelve miles apart, that it and its tributaries are wholly within our own territory, that the boundary lines of adjacent States encompass it; that from the earliest history of the country it has been claimed to be territorial waters, and that the claim has never been questioned; that it can not become the pathway from one nation to another; and remembering the doctrines of the recognized authorities upon international law, as well as the holdings of the English courts as to the Bristol Channel and Conception Bay, and bearing in mind the matter of the brig Grange and the position taken by the Government as to Delaware Bay, we are forced to the conclusion that Chesapeake Bay must be held to be wholly within the territorial jurisdiction and authority of the Government of the United States and no part of the "high seas" within the meaning of the term as used in Sec. 5 of the act of June 5, 1872.

1886, May 28.-Secretary of State Bayard to the Secretary of the Treasury, discussing the British fisheries question and expressing the determination to maintain the "three-mile" limit as a restriction.

We do not, in asserting this claim, deny the free right of vessels of other nations to pass on peaceful errands through this zone, provided they do not, by loitering, produce uneasiness on the shore or raise a suspicion of smuggling. Nor do we hereby waive the right of the sovereign of the shore to require that armed vessels, whose projectiles, if used for practice or warfare, might strike the shore, should move beyond cannon range of the shore when engaged in artillery practice or in battle, as was insisted on by the French Government at the time of the fight between the Kearsarge and the Alabama, in 1864, off the harbor of Cherbourg.

1 U. S. Naval War College, International Law Situations, 1904, p. 136; Wharton, International Law Digest, vol. 1, p. 108.

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