prima facie in the Crown, but there is the further prerogative right to determine what places shall be ports, and to grant the privilege of erecting them; and the king may first grant the soil to A, and afterwards grant the franchise of a port to B,1 if the vested rights of A are not impaired by the second grant.2 Ports are for the receipt of goods and the collection of the customs, and a subject cannot legally land or ship customable goods on his own land or in creeks or havens, or other places out of ports, unless it be in case of danger or necessity.3 Ports have been styled the gates of the kingdom, and are established and controlled by the king as guardian of the realm.5 § 5. With respect to the larger arms of the sea, such as bays, estuaries, and sounds, the rule is that "that arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county." The ren, 5 Q. B. 773; Yarmouth v. Eaton, 3 Burr. 1402; Hale, De Portibus Maris, c. 2; 2 Black. Com. 499. Rex v. Bruce, Russ. & Ry. 243, and 2 1 Hale, De Portibus Maris, c. 6. See 2 App. Cas. 394; King v. Soleguard, note 2, ante, p. 10. 2 Exeter v. Warren, 5 Q. B. 773. 3 Per Holroyd, J., in Blundell v. Catterall, 5 B. & Ald. 268; The Baltimore Wharf Case, 3 Bland Ch. 383. 4 Ports are thus frequently characterized in the older authorities. 1 Black. Com. 264; 2 Feud. 1, 56; F. N. B. 113; Royal Fishery of the Banne, Sir John Davies, 149; Hale, De Portibus Maris, c. 3, 7; Hargrave's Law Tracts, 50, 54; Bacon Abr. tit. Prerogative, D. 5; Com. Dig. tit. Navigation; Chitty's Prerogatives of the Crown, 100. • Ibid. Hale, De Jure Maris, c. 4; 2 Hale, P. C. 16, 17, 54; Staunford, P. C. bk. 1, p. 51; Hawkins, P. C. pt. 2, c. 9, § 14; 4 Inst. 140; Fitzherbert's Abr. Corone, 399; Case of the Admiralty, 12 Co. 79; Cunningham's Case, Bell, C. C. 86; Andrew, 231; Leigh v. Burley, Owen, 122; Regina v. Keyn, 2 Ex. D. 63; The Eleanor, 6 Rob. Adm. 39; The Public Opinion, 2 Hagg. Adm. 398; The Eliza Jane, 3 Ibid. 335; United States v. Bevans, 3 Wheat. 336, 387; United States v. Grush, 5 Mason, 290; The Harriet, 1 Story, 251; United States v. New Bedford Bridge, 1 Wood. & M. 401, 483; Commonwealth v. Peters, 12 Met. 387; Dunham v. Lamphere, 3 Gray, 268, 270; People v. Supervisors, 73 N. Y. 393, 396; United States v. Robinson, 4 Mason, 307; DeLovio v. Boit, 2 Gall. 398, 425; United States v. Wiltberger, 5 Wheat. 106; 2 Hawkins, P. C. c. 9, § 14; 2 East, P. C. 804; Com. Dig. tit. Adm. E.; Bacon's Abr. tit. Admiralty, A.; 1 Kent Com. 366, 367. See United States v. Ross, 14 American Law Rev. 530; 2 Browne, Civ. & Adm. Law, 92. rule being dependent upon the eyesight, is somewhat difficult of application. The bay or inlet must be so narrow that persons and objects can be comprehended across it by the naked eye; and while in each case it is a question of fact to be determined upon the evidence, yet the weather and the size and distinctness of the objects may cause variation and uncertainty. This question is distinct from that of the territorial jurisdiction of the nation,2 which is determined by the presumed range of cannon, and by measuring three miles seaward from the exterior limit of the bay, and not by the line itself. Certain bays and estuaries of the sea, which are greater in width than six miles, or the double range of cannon, may be within the limits of counties and of the nation. Islands which lie within arms of the sea, and are also within the county, have been regarded as opposite shores within the foregoing rule,3 and in treaties between nations,* Hale thus refers to the same rule again in De Portibus Maris, c. 7 (Hargrave's Law Tracts, 88): "By the book of 8 E. 2 Corone, every arm or creek of the sea within the points of the land, where a man may discern clearly from side to side, is within the body of the county. Yet the admiral hath used at least a concurrent jurisdiction in many such creeks and arms of the sea, up to the first bridges as to matter of nusances, upon a mistake, perchance, of the words les pounts in the printed statute of 16, R. 2, c. 3, whereas some read it points." 1 United States v. Bevans, 3 Wheat. 336; United States v. Grush, 5 Mason, 290; Commonwealth v. Peters, 12 Met. 387; Dunham v. Lamphere, 3 Gray, 268. In the recent case of Direct U. S. Cable Co. v. Anglo-American Telegraph Co., 2 App. Cas. 394, 417, Lord Blackburn, referring to Coke and Hale (see ante, § 4, note) said: "Neither of these great authorities had occasion to apply this doctrine to any particular place, nor to define what was meant by seeing or discerning. If it means to say what men are doing, so, for instance, that eye-witnesses on shore can say who was to blame in a fray on the waters, resulting in death, the distance would be very limited; if to discern what great ships were about, so as to be able to see their manoeuvres, it would be very much more extensive. In either sense it is indefinite." 2 Ante, § 4, and note 1, p. 15. 3 Per Story, J., in United States v. Grush, 5 Mason, 290, 301. Thus, in the treaty of 1867, between England and France, as to Sea Fisheries, confirmed by act of Parliament in 1868 (31 & 32 Vict. c. 45), it was provided that "the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland," and that these miles "are geographical miles, whereof sixty make a degree of latitude." and in the works of writers upon international law,' bays having a width of ten miles have been conceded to be a part of the territory of the nation by which they are enclosed. In Regina v. Cunningham,2 the question was whether certain foreigners, who had committed a crime upon a foreign vessel lying in the Bristol Channel, were subject to the jurisdiction of the common-law courts in the county of Glamorgan. Although the place where the offence was committed was below low-water mark, beyond any river, and at a point where the sea was more than ten miles wide, it was held to be within the body of the adjacent county. It would necessarily be within the territory of England, since the counties cannot extend beyond the limits of the nation. In this case, the situation and condition of the place in question were considered, and the fact that it had always been treated as a part of the county of Glamorgan was regarded as a strong illustration of the principle that the whole of the Bristol Channel was within the adjacent counties. It is established that the right of property in all the soil which is covered by tide water, and is also a part of the nation's territory, is prima facie in the Crown by the common law.5 1 Manning's Law of Nations, 120. In the law of nations, bays are regarded as part of the territory of the country when their dimensions and configuration are such as to show that the nation occupying the coast also occupies the bay as part of its territory. Wheaton's Int. Law (8th ed.), 255, 256, n., 325; Grotius, De Jure Belli, bk. 2, c. 3, §§ 7, 8; Vattel, bk. 1, c. 3, § 290; Ortolan, Diplom. de la Mer, bk. 2, c. 8; 1 Phillimore's Int. Law, § 200; 1 Kent Com. 28, 29; Direct U. S. Cable Co. v. Anglo-American Telegraph Co., 2 App. Cas. 394, 419. In this country, a territorial jurisdiction has been claimed over extensive portions of the sea, including waters within lines drawn from distant headlands. 1 Kent Com. 30. Bell, C. C. 86. 3 Direct U. S. Cable Co. v. Anglo American Telegraph Co., 2 App. Cas. 394, 419; Regina v. Keyn, 2 Ex. D. 63. See Commonwealth v. Peters, 12 Met. 387; Commonwealth v. Alger, 7 Cush. 82; Commonwealth v. Roxbury, 9 Gray, 451, 494, 512, note; Pollard v. Hagan, 3 How. 230. 4 Bell, C. C. 86. Compare Chase v. American Steamboat Co., 9 R. I. 419; s. c. nom. Steamboat Co. v. Chase, 16 Wall. 522, in which usage was relied upon as showing that Narragansett Bay is within the jurisdiction of the common-law courts of Rhode Island, and not of the admiralty exclusively. Sherlock v. Alling, 93 U. S. 99, 104. As to the jurisdiction over Long Island Sound, see Mahler v. Norwich Transportation Co., 35 N. Y. 352; Keyser v. Coe, 9 Blatch. 32; The Sloop Elizabeth, 1 Paine, C. C. 10. 5 Ante, § 4; Direct U. S. Cable § 6. The title to land under water is not changed when the soil becomes bare, and the Crown is entitled to land which is left by the sudden recession of tide waters within the realm, and to islands which arise therefrom. In strictness, also, the Crown has the right of property in all things which are found upon the seashore between high and lowwater mark, and have no acknowledged owner, such as seaweed, amber, jet, etc., and in minerals lying under the navigable waters of the kingdom.2 The ancient franchise of royal fish taken within the arms of the sea or in the narrow seas, and the right to wreck, i.e., to goods from a lost vessel which were thrown upon the shore, also belonged to the Crown in virtue of the royal prerogative, and formed one of the ordinary branches of the king's revenue. But these rights, although originally associated with the dominion of the sea, were not enjoyed as appurtenant to the ownership of the sea or the seashore, for the king might grant them to a subject without granting the shore; or, he might grant the wreck to one person and royal fish to another, and the shore itself to a third person.5 According to Hale and Coke, a grant by the Crown to an individual of the right to take wreck, raises a prima facie presumption that the seashore itself was also intended to pass, inasmuch as a ship cannot Co. v. Anglo-American Telegraph Co., 2 App. Cas. 394; Regina v. Keyn, 2 Ex. D. 63. 1 Hale, De Jure Maris, c. 4, 6; Anon. Dyer, 326 b; Rex v. Yarborough, 2 Bligh, N. S. 162; Callis on Sewers, 45, 47. 2 Post, § 10. 3 Post, § 20. This prerogative was treated as not obsolete in 1831. Lord Warden v. The King, 2 Hagg. Adm. 438. Hale, De Jure Maris, c. 7; Hargrave's Law Tracts, 37-41; 2 Co. Inst. 167; 1 Black. Com. 202, 283, 290; 3 Id. 106; Callis on Sewers, 40; Sir Henry Constable's Case, 5 Co. 107; Sir John Constable's Case, Anderson, 86; Bracton, lib. 3, 120, § 5; Com. Dig. tit. Prerogative, D. and Wreck; Phear's Rights of Water, 99; 2 Kent Com. 321, 322; Woolrych on Waters, 11; Jerwood on the Seashore, 57; The Pauline, 2 Rob. Adm. 358; Rex v. 49 Casks of Brandy, 3 Hagg. 257; Rex v. 2 Casks of Tallow, Id. 294; Palmer v. Rouse, 3 H. & N. 505; Talbot v. Lewis, 6 C. & P. 603; Barry v. Arnaud, 10 Ad. & El. 646; Sutton v. Buck, 2 Taunt. 355; Hamilton v. Davis, 5 Burr. 2732; Blundell v. Catterall, 5 B. & Ald. 268; Dunwich r Sterry, 1 B. & Ad. 831; Alcock v. Cooke, 2 M. & P. 625; Legge v. Boyd, 1 C. B. 92; Stackpoole v. The Queen, Ir. R. 9 Eq. 620; The Tilton, 5 Mason, 477. 5 Ibid.; Anon. 6 Mod. 149; Scratton v. Brown, 4 B. & C. 485; Hall on the Seashore (2d ed.), 80, 82; Talbot e. Lewis, 1 C. M. & R. 495; 5 Tyr. 1. be a wreck, within the legal meaning of the term, without being cast upon the land between high and low-water mark ;' but the better view appears to be that the right to wreck is a franchise, which carries with it no right to the soil of the seashore. A grant of the shore does not pass wreck of the sea without express words.3 § 7. Prior to the recent case of Regina v. Keyn, the open seas around the coasts of Great Britain were considered to be the property of the Crown, and it was commonly said that the sea is not only under the king's dominion, but that it is his proper inheritance." According to Selden and the writers of his time, the king is lord of the great waste, both land and water. Lord Hale says that the king is owner of this waste, and that the narrow sea adjoining the coast of England is "part of his dominions, whether it lie within the body of any county or not." In ancient times, it was declared that the sea is within the legiance of the king, as of his crown of England; and in the Rolls of Parliament, in the reign of Henry V., it appears that the Commons prayed that whereas the king and his progenitors have always been lords of the sea, and now it happens,that the king is lord of the coasts of both sides of the sea, that therefore the king will lay an imposition upon strangers passing over the sea. Coke, Bacon, Blackstone, Chitty, and Woolrych,10 writing ' Hale, De Jure Maris, c. 6; Hargrave's Law Tracts, 27; Constable's Case, 5 Rep. 107; Calmady v. Rowe, 6 C. B. 861; Rex v. Ellis, 1 M. & S. 662; Beaufort . Swansea, 3 Exch. 413; Talbot v. Lewis, 6 C. & P. 606; Parsons v. Smith, 5 Allen, 578. 2 Ibid.; Phear's Rights of Water, 52; Hall on the Seashore (2d ed.), 20, 76, 81-99; Dickens v. Shaw, Ibid. App. 54, 66. 3 Alcock v. Cook, 2 M. & P. 625. 42 Ex. D. 63; post, § 11. 5 Royal Fishery of the Banne, Sir John Davies, 149, 152; 16 Vin. Abr. tit. Prerogative, B.; 1 Roll. Abr. 528; 2 Id. 168, 170; Com. Dig. tit. Prerogative ; Molloy, De Jure Maritimo (9th ed.), 207; Sir John Constable's Case, 3 Leon. 71, 73. Selden, Mare Clausum, lib. 2, c. 22, 24; Hall on the Seashore (2d ed.), 2; ante, § 3. 7 Hale, De Jure Maris, c. 4, 5; 1 Hale, P. C. 154; 2 Id. 12-15. 86 Rich. II.; Fitzherbert, tit. Protection, 46; Royal Fishery of the Banne, Sir John Davies, 149, 152; Callis on Sewers, 39; Hale on Adm. Jurisdiction, cited in Commonwealth v. McLoon, 101 Mass. 1, 12, pl. 5. 1 Rot. Parl. 8 Hen. V. N. 6; 16 Vin. Abr. tit. Prerogative, B.; Woolrych on Waters, 19. "Co. Litt. 107, 260 b, § 439; Bacon's Abr. tit. Court of Admiralty; 1 Black. |