Manchester v. Commonwealth of Massachusetts
By an act of the legislature of the commonwealth of Massachusetts, approved May 6, 1886, (Laws 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 dragnet, 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 Sec. 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 libeled, if need be, by due process of law. Sec. 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. Sec. 4. Nothing contained in this act shall be construed to interfere with the corporate rights of any fishing companyloc ated on said bay, nor in any way to affect the fishweirs 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 setnets or gill-nets in the waters of the town of Fairhaven within a line drawn from Commorant rock south-westerly 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. See. 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 offense. Sec. 6. District courts and trial justices shall have concurrent jurisdiction with the superior court of all offenses and proceedings under the provisions of this act. Sec. 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 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 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 defendantwas  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 sougherly of the chain of islands lying to the eastward of Buzzard's bay, and known as the 'Elizabeth Islands.' is the most southerly of the chain of islands 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, put 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 discern objects across from one headland to the other at the mouth of Buzzard's bay. The defendant's evidence showed that the said steamer was of Newport, Rhode Island, duly enrolled and licensed at that port, under the laws of the United States, for carrying on the menhaden fishery, and it was conceded by the commonwealth that the defendant was employed upon the vessel described by said enrollment and license, and, at the time of the commission of the acts complained of, he and his associates were so in the employ of the vessel described in said license. The district attorney stated that he should not controvert any of the foregoing evidence, but claimed that it was incompetent in defense of this complaint; but for the purposes of the trial I admitted the testimony. The foregoing is all the evidence offered at the trial of this complaint. It was conceded that the defendant could not be convicted if chapter 212 of the Acts of 1865 was not repealed by the statute of 1886, chapter 192. At the conclusion of the evidence the defendant asked me to rule as follows: (1) As the government does not claim that the act complained of is in violation of any statute except of chapter 192 of the Acts of 1886, the defendant, notwithstanding that statute, is authorized to take menhaden by the use of the purse seine in the waters of Buzzard's bay in the place where this act was committed. (2) Chapter 192 of the Acts of the year 1886 did not repeal chapter 212 of the Acts of the year 1865. (3) The defendant may lawfully take menhaden, by the use of the purse seine, in Buzzard's bay, in the place where the acts complained of in this case were done. And also: (1) The act complained of was on the high seas, and without the jurisdiction of Massachusetts. (2) The act complained of having been done under a United States license for carrying on this fishery, the defendant cannot be held as a criminal for violating a statute of this commonwealth. (3) The defendant cannot be held unless the act complained of was done and committed within the body of a county, as understood at common law. (4) The statute of this commonwealth prohibiting under a penalty the use of nets and seines and the taking of fish within three miles of the shore is invalid especially as against a license to fish granted under the laws of the United States. The defendant further asked me to rule that on all the evidence the defendant could not be convicted. I declined to rule as requested by the defendant, and submitted the case to the jury, with the instruction that the statute of 1865 was repealed by the statute of 1886, and with the instruction that, if they found that the defendant was engaged in using a purse seine for the taking of fish of any kind in that part of Buzzard's bay which was within the jurisdiction of the commonwealth of Massachusetts, they would be authorized to convict the defendant, and that the place where the acts of the defendant were committed, being within a marine league from the shore at low-water mark, was within the jurisdiction of the commonwealth. The jury returned a verdict of guilty; and now, after verdict, and at the request of the defendant, and by the consent of the parties, I report the case, with my rulings at the trial of the same, for the determination of the supreme judicial court.' The supreme judicial court held the statute in question to be constitutional and valid, and delivered an opinion, by Chief Justice FIELD, which is reported in 152 Mass. --, 25 N. E. Rep. 113. The defendant has sued out a writ of error directed to the superior court, to review its judgment, and assigns as errors that the court ruled and adjudged. '(1) that the place where the alleged offense was committed was not a part of the high seas, and was not, under article 3, section 2, of the constitution, which provides that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction, within the exclusive jurisdiction of the federal government. (2) That said place, notwithstanding said provision of the constitution, was within the jurisdiction of Massachusetts. (3) That the plaintiff in error was not authorized to do the act complained of by a license under title 51 of the Revised Statutes, and was not protected by such license. (4) That chapter 192 of the Acts of the General Court of Massachusetts for the year 1886, as construed by the court, was valid, notwithstanding the provisions of the constitution and laws above cited, or any provisions of the constitution and laws of the United States.' George A. King, Joseph H. Choate, and James F. Jackson, for plaintiff in error.

[Argument of Counsel from pages 246-253 intentionally omitted]

H. C. Bliss, Dep. Atty. Gen., for the Commonwealth.

BLATCHFORD, J. 

Notes
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