words, all the islands and waters in the bay of New York, and within the bounds aforesaid." And again: "I am, therefore, of opinion that the state of New York has jurisdiction over all that part of the sound lying to the south of a line drawn from the channel, between Fisher's Island and the Connecticut shore directly to Lyon's Point." This case went to the supreme court on a certificate of division of opinion, and is reported in Black, 484. The court reversed the judgment on the ground that while the special verdict had found the offense to have been committed at a particular place, the court had, as a question of law, adjudged the place to be in the state of New York, and held that the jury should have found upon that point. Upon a second trial before Judge Grier, the prisoner was acquitted, and he is said to have been acquitted because the offense was committed in the state of New York. As an explanation of the unsatisfactory decision, as appearing in 1 Black, 484, Mr. Keasby, the United States district attorney for New Jersey, has informed me that he was stopped in his argument, after an adjournment, and informed that the court had examined the question, and was of the opinion that the offense was committed on the high seas. No counsel appeared for Jackalow, and the argument closed. A short time afterward the judgment was reversed, as appears in 1 Black, Judge Grier informing Mr. Keasby that the court were unwilling, on reflection, to decide so important a question, arising in a criminal case, in this way, and after no argument on the other side. All these cases touch the very question in controversy, and to these must be added The Sloop Elizabeth, 1 Paine's C. C. 10. The sloop left New York in 1808 without a permit, and was taken by a cutter one hundred and ten miles from New York, in the sound nearer to Connecticut than New York, and was libelled. The question in dispute was, whether the sloop had left the state of New York, and it was urged that no part of the sound having been given to Connecticut by its charter, that it belonged to New York. Livingston, J., held distinctly that the sound was not conveyed by the charter to the Duke of York, and that it was not a portion of the state of New York. The Sloop Martha Anne, Olc. 18. In June, 1843, a number of fishing crafts went to Oyster bay, in violation of the town law, to gather oysters. Complaint being made, the sloop "Martha Anne" was manned under the direction of the magistrates, and captured a boat called the "Bahama” and brought her back to Oyster bay, and the libellant claimed damages. The jurisdiction in which the vessel was captured became important, and it was held by Betts, J., who apparently simply followed Livingston, J., in the preceding case, that "the sound is an arm of the sea, within the common-law acceptation of the term, being navigable tide-water. It is more properly a strait than a sea. It is not within the territory of any particular state." The Amstad case, 15 Pet. 518, has no bearing on the question, as the vessel was anchored off Montauk Point to the eastward of Long Island Sound, and Judge Story in that case assumes and states as a portion of the facts of the case, that the vessel was at anchor on the high seas, half a mile from the Long Island shore. These appear to be the decisions in this question- their bearing will be discussed hereafter. Only the last two cases deny to New York any jurisdiction over the sound. In addition to the light thrown on this question by the grants and charters, the Revised Statutes and the decisions, we have various loose facts, among them that the state of New York has, on various occasions, made claim to the ownership of portions of the sound and to certain of the islands contiguous to Connecticut, sometimes with success and again unsuccessfully. In 1765 Governor Cadwallader Colden addressed a letter to Governor Fitch of Connecticut, suggesting an arbitration in regard to the ownership of Captain's Island, lying off Byram river, near the boundary line of New York and Connecticut. It appeared that one Buck, a citizen of New York, had been sued for a trespass on this island, and had complained to his own state. It was referred to the general assembly, who decided to arbitrate the question, and upon the trial in the action which caused the correspondence, the island was declared a part of Connecticut. It will be seen that these islands are south of a line drawn from Point Judith to Lyon's Point, and within the jurisdiction of New York, under the rules laid down in the court of appeals. The government, however, when lands in this island were ceded for a light-house, took cessions from both New York and Connecticut. Other controversies have, from time to time, arisen in respect to the ownership of the islands contiguous to the Connecticut shore, but I am not able to point to any authoritative decisions arising from them. I have been informed that many years ago an indictment was found against a person for selling liquors on Thimble Island, situated east of New Haven and very near the Connecticut shore, and within the headlands, and that a demurrer to the jurisdiction was sustained in the Con necticut court; and a similar question also arose in reference to Charles Island, situated also close to the shore, and east of Bridgeport, upon the arrest of certain persons for engaging in a prize fight, and it is said they were, for the same reason, discharged. A controversy also arose as to Ram Island or Mystic Island as now called about a year ago, which is very near the main land, in which the claim of New York seems to have been sustained. There are, however, two islands of that name. In addition to all this the state of New York has, from time immemorial, assumed jurisdiction over the waters of Long Island Sound, by grants of exclusive rights of ferriage, authorizing improvements in the waters of the sound, directing the flow of water, the construction of piers, regulating fishing, granting lands under water, and by legislation in regard to kindred matters. Laws 1835, ch. 234; Laws 1839, ch. 173; Laws 1847, ch. 409; Laws 1849, ch. 435; Laws 1853, ch. 83; Laws 1858, ch. 261; Laws 1865, ch. 242. From all these matters and this consideration of the general question, my opinion is as follows: I. That claims have been, from time to time, advanced to the exclusive ownership of the sound to low water on the Connecticut shore, but when critically examined, I cannot find in the original grants or in the judicial interpretation of them any clear evidence to support the claim. Nor, in fact, can I find any formal and well-considered judicial or other decision giving to New York such jurisdiction, unless it be contained in the remarks of Judge Dickerson, in his opinion in the Jackalow case, intimating that New York might be entitled to the whole sound by virtue of the description of her bounds in the Revised Statutes. It will be obvious that an opinion, the evidence to support which is the claim of the interested party, in its Revised Statutes, is not conclusive. I am not, however, prepared to say that, upon a critical examination, many of the islands lying adjacent to the Connecticut shore, and north of a line drawn from Fisher's Island to Lyon's Point, might not be adjudged to New York from possession or a long acquiescence in the jurisdiction of New York or from other causes. These islands many of which are uninhabited afford a fruitful field for litigation, and in case any line was fixed as the proper boundary, some will doubtless be found, the jurisdiction to which may be substantially settled, and which will prove exceptions to the rule. That some part of the sound, however, is within the state of New York, has been so constantly asserted by the political department of the government of the state, and upheld by the courts as above shown, that it must be considered as settled so far as this state is concerned, and any discussion of that question would be idle until these decisions. are overturned. Doubtless the decisions of Judges Livingston and Betts, before referred to, in The Elizabeth, 1 Paine's, C. C. 10, and The Martha Anne, Olc. 18, are in conflict with this view, but they cannot be considered as binding. II. There is great difficulty, however, in drawing the actual line of jurisdiction, and probably nothing short of a commission, or a decision by the court of last resort in an action instituted to fix the boundary, would be conclusive. As far as our courts have laid down a rule, two lines have been named, one following the boundary line of the state as laid down in the Revised Statutes, being a direct line drawn from Point Judith, or the center of the channel between Fisher's Island and Connecticut, direct to Lyon's Point, as suggested by Judges Welles and Edmonds in Manley v. The People, Judge Dickerson in Jackalow's case, and Judges Woodruff and Shipman in Keyser v. Coe, which would give about two-thirds of the sound to the state of New York. And the other, avoiding the questions of a direct grant of the sound, and holding, that even if the sound were not granted to the two states of New York and Connecticut, that these states succeeded to the dominion of the king over these waters, being a bay, strait or arm of the sea, in which case the proper line would follow the thread of the sound, with such deflections as may be required to include the islands confessedly within our jurisdiction. This seems to be the leaning of the court in the case of Mahler v. The Norwich, etc., Trans. Co., 35 N. Y. 352. It will be apparent, therefore, with such different lines laid down by judicial decision, and depending on such different rules, that the question as to the exact line must be considered as an open question, but with every desire to support all proper claim on behalf of the state to jurisdiction. It would appear reasonable, that where the courts of this state have decided, as in these cases, that a line drawn in one of these ways would include all the sound belonging to the state of New York, that such decisions would be almost conclusive. Either of these lines would pass a considerable distance south of the Bridgeport oyster-bed, and leave it, if not in the state of Connecticut, at least without the state of New York. III. For the reasons above given, I have not discussed the questions which arise in case it should be held that the sound was the high seas. The rights of the citizens of the two states to fisheries and other privileges would, of course, change, and, except so far as land within known headlands might be considered as the property of Connecticut, her laws regulating fisheries would be of no effect. Should such a conclusion be arrived at, innumerable questions would necessarily arise. IV. In view of all these matters, and the conclusions to which I have arrived, a means of settlement of the disputed questions is rather a matter of policy than of law. If our claim be a doubtful one, we have the advantage of the decisions thus far upon it in our favor. The state, of course, may file a bill in the supreme court of the United States, to ascertain and establish the proper boundary between New York and Connecticut, in which she may ask to be restored to any rights of sovereignty over land or water of which she has been deprived, and that her title to such portion of the sound as she may claim may be quieted. State New Jersey v. New York, 5 Pet. 283; State Rhode Island v. Massachusetts, 12 id. 658; State Florida v. Georgia, 11 How. 293; Same v. Same, 17 id. 478; Virginia v. West Virginia, 11 Wall. 39. In such an action, the pleadings and proofs will be assimilated to the necessities of the case, in such a manner as to produce substantial justice between the parties, and the court may direct an issue of law or award a commission of boundary. Rhode Island v. Massachusetts, 12 Pet. 658, 734; Same v. Same, 14 id. 210, 256; State Georgia v. Florida, 17 How. 478. And it might be seriously doubted, whether any settlements by compact or agreement, between the two states which divided the sound, would be effective or finally approved; and, in accordance with the practice laid down in State Florida v. State Georgia, 17 How. 479, the United States would doubtless be allowed to intervene and represent the general public in the supreme court. NEW YORK, September 8, 1873. JOHN L. CADWALADER. LETTER FROM HON. F. C. BARLOW. STATE OF NEW YORK: OFFICE OF THE ATTORNEY-GENERAL, DEAR SIR-Last year the legislature passed a similar resolution of inquiry about the Bridgeport oyster-beds. It was near the close of the session, and I was not able to leave, and so got Mr. Cadwalader to look into the subject, and I inclose his opinion. I think New York has no claim |