Opinion of the Court.

prohibited, under a penalty, from issuing receipts or bills of lading, except for goods which had been actually received into their possession, the railway company must be conclusively presumed to have been in possession of the cotton for which it had issued bills of lading. But it might be argued, with equal force, that this statute prevented the bills of lading from binding the railway company before the cotton was actually received into its possession. If the statute has any bearing, it is only upon the question of fact whether the railway company had or had not any share in the custody and control of the cotton, for which bills of lading had been issued, before it was put upon the cars.

As to the hypothesis that the sheds of the compress company and the adjoining street had been made by the railway company one of its receiving stations, and that the compress company was the agent of the railway company, either in receiving or in holding the cotton, it is enough to say that, if the facts have any tendency to support that hypothesis, they fall far short of conclusively establishing it as matter of law.

The Circuit Court therefore erred in refusing to give the fifth, eleventh and twelfth instructions requested, as well as in the instructions which were given to the jury.

As for this reason the verdict must be set aside and a new trial ordered, at which an amendment in respect to parties may be allowed in the discretion of the court below, we express no opinion upon the question of pleading under the Code of Arkansas, (which is not free from doubt,) whether this action was rightly brought in the name of the insurance companies alone, or whether the assured should have been made a party, either as a plaintiff or as a defendant. See Mansfield's Digest, S$473, 4933, 4934; St. Louis, Iron Mountain & Southern Railway v. Camden Bank, 47 Arkansas, 541, 548.

Judgment reversed, and case remanded, with directions to set aside the verdict and to order a new trial.

MR. JUSTICE BROWN, not having been a member of the court when this case was argued, took no part in its decision.

Statement of the Case.

MANCHESTER v. MASSACHUSETTS.

ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS FOR THE COUNTY OF BARNSTABLE.

No. 1518. Argued January 14, 15, 1891.— Decided March 16, 1891.

The act of the Legislature of Massachusetts, approved May 6, 1886, (Laws of 1886, c. 192,) "for the protection of the fisheries in Buzzard's Bay," is valid, so far as it relates to the taking of menhaden.

It applies to a vessel which has a license to fish for menhaden under the laws of the United States.

As between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from the coast; and bays wholly within its territory which do not exceed two marine leagues in width at the mouth are within this limit; and included in such territorial jurisdiction is the right of control over fisheries.

The courts of Massachusetts can lawfully take jurisdiction of violations of such statutes, as against the admiralty and maritime jurisdiction of the courts of the United States.

It has always been the doctrine of this court, that whenever a conflict arises between a State and the United States, as to the regulation of commerce or navigation, the authority of the latter is supreme and controlling.

Within what are generally recognized as the territorial limits of States by the law of nations, a State can define its boundaries on the sea and the boundaries of its counties; and by this test Massachusetts can include Buzzard's Bay within the limits of its counties.

There are no existing treaties or acts of Congress which relate to the menhaden fisheries within such a bay as Buzzard's Bay.

The question is not considered whether or not Congress would have the right to control the menhaden fisheries in question.

By an act of the legislature of the Commonwealth of Massachusetts, approved May 6, 1886, (Laws of 1886, c 192,) entitled "An act for the protection of the fisheries in Buzzard's Bay," it was enacted as follows:

"SECTION 1. No person shall draw, set, stretch or use any drag net, set net or gill net, purse or sweep seine of any kind for taking fish anywhere in the waters of Buzzard's Bay within the jurisdiction of this Commonwealth, nor in any harbor, cove or bight of said bay except as hereinafter provided.

Statement of the Case.

"SECTION 2. Any net or seine used in violation of any provision of this act, together with any boat, craft or fishing apparatus employed in such illegal use, and all fish found therewith, shall be forfeited; and it shall be lawful for any inhabitant or inhabitants of any town bordering on said bay to seize and detain, not exceeding forty-eight hours, any net or seine found in use contrary to the provisions of this act, and any boat, craft, fishing apparatus and fish found therewith, to the end that the same may be seized and libelled if need be by due process of law.

"SECTION 3. All nets and seines in actual use set or stretched in the waters aforesaid in violation of this act are declared to be common nuisances.

"SECTION 4. Nothing contained in this act shall be construed to interfere with the corporate rights of any fishing company located on said bay nor in any way to affect the fish weirs mentioned in section seventy of chapter ninety-one of the Public Statutes, nor the use of nets or seines in lawful fisheries for shad or alewives in influent streams of said bay, nor to the use of set nets or gill nets in the waters of the town of Fairhaven within a line drawn from Commorant rock southwesterly to the buoy on West Island Rips and from thence westerly in a straight course through the buoy on West Island Ledge to the town line of Fairhaven.

"SECTION 5. Whoever violates any provision of this act or aids or assists in violating the same shall pay a fine not exceeding two hundred dollars for each offence.

"SECTION 6. District courts and trial justices shall have concurrent jurisdiction with the Superior Court of all offences and proceedings under the provisions of this act.

"SECTION 7. All fines received under this act shall be paid one-half to the complainant and the other half to the Commonwealth. All moneys from any forfeitures incurred under this act shall inure and be paid one-fourth to the informer and one-fourth to the person filing the libel and the other half to the Commonwealth."

Under that statute, a complaint in writing under oath was made on behalf of the Commonwealth, before a trial justice

VOL. CXXXIX-16

Statement of the Case.

in and for the county of Barnstable, in Massachusetts, that Arthur Manchester, at Falmouth, in the county of Barnstable, on the 19th day of July, in the year 1889, did then and there draw, set, stretch and use a purse seine for the taking of fish in the waters of Buzzard's Bay, within the jurisdiction of the Commonwealth. Under a warrant issued on this complaint, Manchester was, on the 1st of August, 1889, brought before the trial justice, and pleaded not guilty. The justice found him guilty, on a hearing of the case, and imposed upon him a fine of $100, to the use of the Commonwealth, and costs, and ordered that, if the fine and costs should not be paid, he should be committed to jail, there to be kept until he should pay them, or be otherwise discharged by due course of law.

The defendant appealed to the Superior Court of Barnstable County. In that court, the case was, according to the statute, tried by a jury, which found the defendant guilty. That court reported the case for the determination of the Supreme Judicial Court of the Commonwealth, which heard it, and on the 18th of September, 1890, made an order that judgment should be rendered on the verdict. On the rescript being received by the Superior Court, it affirmed the judgment of the trial justice, and directed the defendant to pay a fine of $100 and the costs of prosecution, and stand committed until he should comply with the order.

The report of the Superior Court, signed by a justice thereof, was as follows: "This was a complaint under section 1 of chapter 192 of the statutes of 1886. A copy of the complaint is annexed and made a part of this report. The evidence of the Commonwealth tended to show that the defendant and others, who were citizens of Rhode Island and were officers and crew of the fishing steamer called the A. T. Serrell,' on the day named in the complaint were engaged in drawing, setting, stretching and using a purse seine for the taking of fish in the waters of Buzzard's Bay. The place where the defendant was so engaged with said seine was about, and not exceeding, one mile and a quarter from a point on the shore midway from the north line of said town to the south line thereof. The point where the defendant was so using said

Statement of the Case.

seine was within that part of Buzzard's Bay which the harbor and land commissioners, acting under the provisions of section 2 of chapter 196 of the acts of the year 1881, had, so far as they were capable of doing so, assigned to and made a part of the town of Falmouth. A copy of the map showing boundary lines between the adjacent cities and towns bordering on Buzzard's Bay, as so located by said commissioners, was used at the trial and may be referred to. The point where the defendant was using said seine is marked 'A' on said plan. The Commonwealth's evidence tended to show that the defendant and his associates, on said day and at the point described, caught with said seine a large quantity of the fish called menhaden. In this act of fishing no fixed apparatus was used and the bottom of the sea was not encroached upon or disturbed.. The Commonwealth further offered evidence tending to show that the distance between the headlands at the mouth of Buzzard's Bay, viz., at Westport, in the county of Bristol, on the one side, and the island of Cuttyhunk, in the county of Dukes, on the other side, was more than one and less than two marine leagues. The island of Cuttyhunk is the most southerly of the chain of islands lying to the eastward of Buzzard's Bay, and known as the Elizabeth Islands. The distance across said bay at the point where the acts of the defendant were done is more than two marine leagues, and the opposite points are in different counties. The defendant did not dispute any of the testimony offered by the Commonwealth, but introduced evidence tending to show that he was engaged in fishing for menhaden only, and that he caught no other fish excepting menhaden; that menhaden is not a food fish and is only valuable for the purpose of bait and of manufacture into fish oil; and that the taking of said menhaden by seining does not tend in any way to decrease the quantity and variety of food fishes. The defendant offered evidence further tending to show that he was in the employ of the firm of Charles Cook and others, who were engaged in the State of Rhode Island in the business of seining menhaden to be sold for bait and to be manufactured into fish oil and fish manure. The defendant further offered testimony tending to show that it was impossible to