He quotes the " Æneid," book I : — "Insula portum Kfficit objectu latcrum: quibus omnis ali alto Frangitur, inque sinus scindit sese unda reductos." (But we submit to Lord Justice Bowen that alto here does not mean high, but "the deep.) Mr. Justice Field also argues that it would seem absurd that Congress should not have intended to include within the term in question such great bodies of water, carrying such an immense ccmmerce of all nations. Hut the apparent answer to that is, if they meant to include such important waters, they would have said "lakes" as well as rivers, etc. The in ference is pretty strong that they simply referred to the ocean and waters connecting with it. Mr. Justice Field also observes : — "But it will hardly be claimed that Congress by the legislation in question intended that violent assaults com mitted upon persons on vessels owned by citizens of the United States in the Detroit River, without the jurisdiction of any particular State, should be punished, and that similar offences upon persons on vessels of like owners upon the adjoining lakes should be unprovided for. If the law can be deemed applicable to offences committed on vessels in any navigable river, haven, creek, basin, or bay, connecting with the lakes, out of the jurisdiction of any particular State, it would not be reasonable to suppose that Congress intended that no remedy should be afforded for similar offenses committed on vessels upon the lakes, to which the vessels on the river, in almost all instances, are directed, and upon whose waters they are to be chiefly engaged. The more reasonable inference is that Congress intended to include the open, unenclosed waters of the lakes under the designation of high seas." But is not this begging the question that Congress meant either the great lakes or their connecting or affluent waters? On the other hand Mr. Justice Brown contends that the term "has never been regarded by any writer or held by any court to be applicable to any territorial waters, and like the word • highways,'1 presupposes the right of the public to make free use of them, and excludes the idea of private ownership." But he seems to us to hit the nail exactly on the head when he says that "the underlying error of the opinion of the court appears to me to consist in a total ignoring of the last qualifica tion" of the statute, namely, "and out of the juris diction of any particular State," and that the term is not applicable to the lakes because "they are within the local jurisdiction of the Stales bordering upon them." He also considers that as in 1790, when the act was passed, there was no commerce on the lakes except in canoes, " it seems impossible to say that Congress intended that the words, ' arm of the sea, or river, haven, creek, basin or bay' should apply to the lakes when the word ' lakes' might just
as well have been used, had the interior waters of the country been included." On the whole, the decision can be supported only on the theory of prophetic legislation and of a statutory "growth" like that of " Topsey." The three opinions are distinguished by great learning and ingenuity.
Fishing on Sunday. — In People v. Moses, 35 N. E. Rep. 478, the New York Court of Appeals held, by a majority of one, that it is a misdemeanor to fish on Sunday, in a pond belonging to a club of which the defendant is a member. The Court in the prevailing opinion observed: — "Section 259 of the Penal Code provides that, ' the first day of the week, being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community.' It is not the meaning of this section that every act which is claimed to be a violation thereof must, in fact, be a serious interruption of the repose and religious liberty of the community; but the Legislature in subsequent sections specified certain acts which are de clared to be serious interruptions of the repose and reli gious liberty of the community — acts, necessarily described in general and comprehensive terms, which the lawmakers believed had a general tendency to interfere with Sunday as a day of rest and religious worship. Section 263 pro hibits all labor on Sunday, excepting works of necessity or charity; and it matters not whether the prohibited labor be public or private, wherever it is performed it is pro hibited. In section 265 particular acts are specified, which are prohibited as follows: 'All shooting, hunting, fishing, playing, horse-racing, gaming, or other public sport, exer cises or shows upon the first day of the week, and all noise disturbing the peace of the day, are prohibited.' In sections 266, 267 and 268 other acts are specially prohib ited. It is thus seen that among the acts specially pro hibited on Sunday is fishing. That is absolutely prohibited on Sunday everywhere, and under all circumstances. It may be done in a community where it does not offend the sensibilities of any one, it may be done in such a manner as not to disturb the peace or interrupt the repose or religious liberty of the community, and yet the law is violated. It is quite unreasonable to suppose that the Legislature meant that whenever any of these acts are charged as a violation of the law an issue can be framed and tried as to their public, offensive or disturbing char acter. The Legislature has settled that matter by prohibit ing them absolutely." It seems to us so clear as almost to preclude argu ment, that the Legislature in this enumeration of pro hibited sports, etc., intended to prohibit them only when they are publicly conducted. The words "other public sport" qualify the preceding words and attach to them, as an ingredient to their crimi nality, a public character. This construction is the more apparent by the concluding clause concerning
