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provinces of Yeh, Tavoy, Mergui, and Tennasserim, and of the islands appertaining thereto, including the Mergui Archipelago; as also over all bays, gulfs, and estuaries inter fauces terra, whether of such mainland or islands, but no further. be the precise nature of the territorial jurisdiction exercised by a nation over such belt Whatever may or zone, it is clear that it comprises the right to control or grant exclusive right of fishing therein, and that such right is one which is not only sanctioned by the positive laws of nations, as laid down by the jurists and writers of International Law; (see Vattel's Law of Nations, Book I., Chapter XXIII., sections 287 and 289; Wharton's International Law, 2nd English Edition, sections 180 and 189; Kent's Commentaries, Volume I., 29, and Manning's Law of Nations, page 119), but by conventions and treaties (per Cockburn, C.J., at page 204 of the Queen v. Keyn, L.R., 2, Exchequer Division, 63), and also by usage (per Cockburn, C.J., at page 206 of the same case).

The origin and nature of this territorial jurisdiction have been fully discussed, not only by the publicists, but, in the Franconia case (the Queen v. Keýn, L.R., 2, ·- Exchequer Division, 63) by all the greatest authorities amongst the English Judges. Cockburn, C.J., thus expresses himself:-

"It is true that from an early period the Kings of England, possessing more ships than their opposite neighbours, and being thence able to sweep the channel, asserted the right of sovereignty over the narrow seas

Venice in like manner laid claim

to the Adriatic, Genoa to the Ligurian Sea, Denmark to a portion of the North Sea. The Portuguese claimed to bar the ocean route to India and the Indian seas to the rest of the world, while Spain made the like assertion with respect to the West. All these

vain and extravagant pretensions have long since given way to the influence of reason and common sense. If, indeed, the sovereignty thus asserted had a real existence and could now be maintained, it would be, of course, independently of any question as to the three-mile zone, conclusive of the present case. at all times unfounded, has long since been abandoned."

But the claim to such sovereignty, (b.) Answering the preceding question with such limitations as are above expressed, we are of opinion that the islands in question do form a part of British India. In paragraph 3 of the letter referred to in the previous question it is stated that the provinces of Yeh, Tavoy, Mergui, Tenasserim, with the islands and dependencies there- unto appertaining, were by treaty of the 11th April 1826 ceded by His Majesty the King of Ava to the East India Company. Such being the case, these provinces, islands, and dependencies became, by section 1. of 21 and 22 Vict. c. 106, vested in Her Majesty the Queen, and formed part of India within the meaning of that Act. In the absence of any materials, other than the statements contained in paragraph 3 of the letter already referred to, we are unable to go further than to express our opinion that the province of Tenasserim, and it may be the islands adjacent and appertaining thereto, are part of the territories under the administration of the Chief Commissioner of Burma. The fact that the Local Government has exercised some degree of authority over the islands does not, in our opinion, suffice per se to show that such islands form part of Burma.

(c.) We are of opinion that according to the principles of International Law the subjects of a State are entitled to the exclusive right of fishing within the limited belt or zone above mentioned. This being so, and it having been held by the Courts in India that the sea and its adjacent soil within the ordinary territorial limits around British India are vested in the Sovereign, but that the use of it for the purposes of navigation and fishing belongs to Her subjects communis juris, subject to the right of the Crown to appropriate the same (see Reg. v. Kestya Raum, 8 Bom., H.C. Rep., 63, and Baban Mayacha v. Naga Shravacha and others, I.L.R., 2, Bombay 19), we are of opinion that the Government is entitled to grant exclusive right of fishing under the Burma Fishery Act, 1875, within the territories for the time being under the administration of the Chief Commissioner of British Burma, and under the general law in any part of British India beyond such territories, but in both cases without prejudice to or in derogation of any express grant of right to fish heretofore made by the British Government.

(d) We are of opinion that the Government is entitled to regulate or control the right of fishing within such limited belt or zone in respect of territories to which the provisions of Act VII. of 1875 apply; but that the Government is not empowered under any existing enactment to act in the way suggested in Messrs. Moylan and Eddis's letter, dated 1st September 1892, to the Chief Commissioner with respect to territorial waters not affected by that Act.

(e.) We are of opinion that the Governor-General in Council is competent, under 24 & 25 Vict. c. 67. 8. 22, consistently with the principles of International Law, to legislate with respect to rights of fishing within such territorial waters as are above

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indicated-not only as regards British subjects, but also as regards foreigners. In this respect the Governor-General in Council appears to us to have with respect to British India, under the statute lastly above referred to, the powers which the Parliament of Great Britain and Ireland possesses with respect to the dominions of Her Majesty.

Dealing with the extent and limit of those powers last mentioned, Dr. Lushington observes in the case of Zollveren, Swabey's Admiralty Reports, page 90-"The power "of this country is to legislate for its subjects all the world over, and as to foreigners "within its jurisdiction, but no further," (cited by Cockburn, C.J., at page 160 of L. R., 2 Exchequer Division,) and in the case of the Annapolis, 1 Lushington, page 306, "The Parliament of Great Britain, it is true, has not, according to the principles of public law, any authority to legislate for foreign vessels on the high sens or for foreigners out of the limits of British jurisdiction, though, if Parliament thought fit so to do, this Court, in its instance jurisdiction at least, would be bound to obey. In "cases admitting of doubt, the presumption would be that Parliament intended to legislate without violating any rule of International Law, and the construction has "been accordingly. Within, however, British jurisdiction, namely, within British territory, and at sea within three miles from the coast, and within all British rivers "inter fauces, and over foreigners in British ships, I apprehend that the British Parlia- ment has an undoubted right to legislate. I am further of opinion that Parliament has "a perfect right to say to foreign ships that they shall not, without complying with "British law, enter into British ports, and that if they enter, they shall be subject to penalties, unless they have previously complied with the requisitions ordained by the "British Parliament: whether those requirements be, as in former times, certificates of origin or clearances of any description from a foreign port, or clean bills of health, or "the taking on board a pilot at any place in or out of British jurisdiction before entering British waters." As regards the character of the legislation required, the above- quoted observations of Dr. Lushington in the case of the Annapolis indicate in several most important particulars the nature and extent of the power which the Legislature may assume in this matter. These powers, it will be observed, extend not only to the regulating and controlling of fishing by British subjects or foreigners within territorial waters, but also to the securing compliance by British or foreign ships entering such waters or British Indian ports, even when engaged in fishing beyond such waters, with all such rules and regulations as may be laid down to be observed by persons on board such ships.

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(f) We are of opinion that no proceedings should be taken under section 7 of the Burma Fisheries Act, 1875, against Mr. Loveridge, seeing that, even if he were liable to a conviction, it would be undesirable. to raise questions of such importance and difficulty in a Criminal Court. Moreover, it appears from the letter written by Messrs. Moylan and Eddis to the Chief Commissioner of British Burma, No. 395, dated the 30th August 1892, that Mr. Loveridge ment within the three-mile limit, but challenges their right outside the three-mile limit, not disposed to question the right of the Govern- and, for the reasons above expressed, we are of opinion that this contention on his part is

sound.

Lastly. We have already dealt with the questions as to territorial jurisdiction over foreigners and exclusive rights of fishing within the jurisdiction in our answers to questions (e) and (c).

26th January 1893.

J. T. WOODROFFE. A. PHILLIPS.