ion in favor of the Crown, by which it was declared and enacted that all mines and minerals lying below low-water mark under the open sea adjacent to but not being part of the county of Cornwall were, as between the Queen, in right of her Crown, and the Prince, in right of his Duchy of Cornwall, vested in the Queen "in right of her Crown as part of the soil and territorial possessions of the Crown." It would seem that the Prince, being owner of the shore between high and low-water marks around the county, would control the access from the land to the bed of the sea; and that, as he was the first occupant of the mines, the Crown could be held to be the owner of the fundus maris beyond the limits of the county, independently of a title to the shore, only under the supposed rule of the common law, while the Crown's rights in the sea-bottom adjacent to but beyond the limits of Cornwall would, according to this arbitration and statute, be similar to those which it had been thought to possess around all the coasts of the kingdom.1 §11. In Regina v. Keyn,2 it appeared that the Franconia, a German vessel, while proceeding from one foreign port to another, negligently came in collision with an English vessel off Dover, and at a point less than three miles distant from the coast of England. It was held that the defendant, who was in command of the Franconia, and was charged with manslaughter for causing the death of a passenger upon the English vessel, was not subject to the jurisdiction of the English admiralty. The six judges who dissented from this conelusion were of the opinion that the territory of England and the jurisdiction of the Crown, and the Admiral, included the See the judgment of Amplett, J. A., and Lord Coleridge, C. J., in Reginar. Keyn, 2 Ex. D. 63, 121, 155-158, and the criticism upon this arbitration by Cockburn, C. J., in the same case, 2 Ex. D. 199-202. See post, § 12. 1 2 Ex. D. 63. 3 The trial was in the Central Criminal Court, to which the jurisdiction of the admiral over crimes was trans ferred by Stat. 4 & 5 Will. 4, c. 36; Stat. 7 & 8 Vict. c. 2. The judge who presided at the trial reserved the question of jurisdiction for the Court for Crown Cases Reserved. The case was argued a second time in this court before fourteen judges. Archibald, J., one of this number, died before judgment, but agreed with the majority. waters within the three-mile belt, and the fact that the passenger's death occurred upon an English vessel was regarded by Lord Coleridge, C. J., and Denman, J., as sustaining the jurisdiction.1 It was also held that express legislation is necessary to confer upon the courts jurisdiction over foreign vessels passing near the coast; that the Admiralty had not such jurisdiction in the particular case under the statutes then in force; that, with respect to both property and jurisdiction, the territorial seas and the ocean beyond are alike high seas, open to the peaceful navigation of all nations,2 and that the territory of England extends only to low-water mark on the external coast.3 §12. Of the opinions delivered in Regina v. Keyn, that of Cockburn, C. J.,4 contains the fullest discussion of the ques See Reg. v. Coombes, 1 Leach, C. C. 388; Commonwealth . Macloon, 101 Mass. 1. The admiralty has no jurisdiction of an offence committed by a foreigner upon a foreign vessel upon the high seas beyond the threemile belt, even when the offence is committed against English subjects. Reg. v. Serva, 1 Den. C. C. 104; Reg. v. Lewis, 1 Dearsley & Bell, C. C. 182; Regina v. Keyn, 2 Ex. D. 63. 2 Regina v. Keyn, 2 Ex. D. 63, 70, 77, 82, 91, 119, 206, 217; The Saxonia, 1 Lush. 410; 11 H. L. Cas. 192; L. R. 4 H. L. 266; The Twee Gebroeders, 3 C. Rob. 336, 352; The Vigilantia, 1 C. Rob. 1; The Catharina, 5 C. Rob. 161; The Success, 1 Dodd's Adm. 131; United States v. Kessler, 1 Bald. C. C. 15, 17. 3 In Manning's Law of Nations (Amos's ed.), 119, the purposes for which jurisdiction over the sea may be exercised under the law of nations are said to be: (1) the regulation of fisheries; (2) the prevention of frauds on custom laws; (3) the exaction of harbor and lighthouse dues; and (4) the protection of the territory from violation in time of war between other states. This passage was noticed and apparently approved in Regina r. 4 The learned judge (2 Ex. D.177,178) regards Bynkershoek, whose treatise De Dominio Maris was published in 1702, as the first to limit the territorial jurisdiction over the sea to the range of cannon. After reviewing the diverse opinions expressed by various writers with reference to the character and extent of this jurisdiction, the opinion proceeds: "But it is said that, although the writers on international law are disagreed on so many essential points, they are all agreed as to the power of a littoral state to deal with the three-mile zone as subject to its dominion, and that consequently we may treat it as sub tions considered and of the Crown's property in the sea. The learned judge, adverting to the fact that Selden, Hale, ject to our law. But this reasoning strikes me as unsatisfactory, for what does this unanimity in the general avail us when we come to the practical application of the law in the particular instance, if we are left wholly in the dark as to the degree to which the law can be legitimately enforced? This unanimity of opinion that the littoral sea is, at all events for some purposes, subject to the dominion of the local state, may go far to show that, by the concurrence of other nations, such a state may deal with these waters as subject to its legislation. But it wholly fails to show that, in the absence of such legislation, the ordinary law of the local state will extend over the waters in question which is the point which we have to determine. forms part of the realm of England, the question may well be put, When did it become so? Was it so from the beginning? It certainly was not deemed to be so as to the three-mile zone, any more than as to the rest of the high seas, at the time the statutes of Richard II. were passed. For in those statutes a clear distinction is made between the realm and the sea; the jurisdiction of the admiral being (subject to the exception already stated as to murder and mayhem) confined strictly to the latter, and its exercise "within the realm prohibited in terms. . . . In these statutes the jurisdiction of the admiral is restricted to the high seas, and in respect of murder and mayhem, to the great rivers below the bridges, while whatever is within the realm, in other words within the body of a county, is left within the domain of the common law. There is no distinction taken between one part of the high sea and another. The three-mile zone is no more dealt with as within the realm than the seas at large. The notion of a three-mile zone was in those days in the womb of time. When its origin is traced, it is found to be of comparatively modern growth. The first mention of it by any writer, or in any court of this country, so far as I am aware, was made by Lord Stowell, with reference to a question of neutral rights, in the first year of the present century, in the case of The Twee Gebroeders (3 C. Rob. 162). To this hour it has not, even in theory, yet settled into certainty. For centuries before it was thought of, the great landmarks of our judicial system had been set fast — the jurisdiction of the common law over the land and the inland waters contained within it, forming together the realm of England, that of the admiral over Not altogether uninfluenced, perhaps, by the diversity of opinion to which I have called attention, the argument in support of the prosecution presents itself-not without some sacrifice of consistency-in more than one shape. At one time it is asserted that, for the space of three miles, not only the sea itself, but the bed on which it rests, forms part of the territory or realm of the country owning the coast, as though it were so much land; so that the right of passage and anchorage might be of right denied to the ships of other nations. At another time it is said that, while the right is of a territorial character, it is subject to a right of passage by the ships of other nations. Sometimes the sovereignty is asserted, not as based on territorial right, but simply as attaching to the sea, over which it is contended that the nation owning the coast may extend its law to the foreigner navigating within it. To those who assert that to the extent of three miles from the coast, the sea and other early writers who assert an unrestricted sovereignty over the sea,1 wrote at a period when the three-mile rule was altogether unknown, and in support of England's dominion over the whole of the narrow seas, concluded that, as this theory is now exploded, the unlimited jurisdiction and the rights of property maintained by these writers cannot be revived so as to attach to the distinct dominion since acquired over the territorial seas; that no distinction being suggested by them between one part of the narrow seas and another, no time can be designated when the three-mile zone became part of the realm; that the assertions of publicists and jurists, even if in harmony, could not add to the territory of a nation or confer jurisdiction upon its courts; that the right to erect wharves, piers, breakwaters, forts, etc., upon the open sea-coast below low-water mark, would be determined merely by the prior occupancy of the space covered by them; and that, while such encroachments, being commonly in aid of navigation, are readily acquiesced in,2 it would be worthy of consideration, if the case arose, whether there would not be just cause for complaint if they obstructed navigation by foreign vessels. the English vessels on the seas, the gone, the territorial property which was suggested to be consequent upon it must necessarily go with it. But we are met here by a subtle and ingenious argument. It is said that although the doctrine of the criminal jurisdiction of the admiral over foreigners on the four seas has died out, and can no longer be upheld, yet, as now, by the consent of nations, sovereignty over this territorial sea is conceded to us, the jurisdiction formerly asserted may be revived and made to attach to the newly acquired domain. I am unable to adopt this reasoning." 1 Ante, § 7. 2 If erected for purposes of defence, they are within the principle that a nation may do what is necessary for the protection of its own territory. Per Cockburn, C. J., 2 Ex. D. p. 199. § 13. The decision in Regina v. Keyn was that of a bare majority of a court composed of thirteen judges, and it is uncertain how far it may be approved in this country.1 Lord Hale thought it no objection to the theory of sovereignty over the narrow seas that it extended the rights and jurisdiction of the king beyond the counties,2 and, under that theory, the sea and the land appear to have been regarded as distinct territories. If, as Cockburn, C. J., suggests, the three-mile rule was adopted as a compromise of the earlier diverse claims, there would, perhaps, be no inconsistency in maintaining that it limited this dominion in extent but did not change its character, which, by the common law, if not by the law of nations, included rights of property as well as of jurisdiction.5 In this country, counties are dependent for their existence upon the consent of the legislature, which may change their boundaries at pleasure, if not restricted by express constitutional provisions; and to v. 1 The decision in Regina v. Keyn is binding upon all the English courts. Harris . The Franconia, 2 C. P. D. 173. See Direct U. S. Cable Co. v. Anglo-American Telegraph Co., 2 App. Cas. 394. In Blackpool Pier v. Fydle Union, 46 L. J. M. C. 189, the part of a pier which was beyond low-water mark was held to be beyond the realm, and not ratable as an extra-parochial place, under 31 & 32 Vict. c. 122, § 7. 2 "The narrow sea adjoining to the coast of England is part of the waste and demesnes and dominions of the king of England, whether it lie within the body of any county or not." De Jure Maris, c. 4; Hargrave's Law Tracts, 10. See also Hale's unpublished treatise on Admiralty Jurisdiction, quoted by Gray, J., in Commonwealth v. Macloon, 101 Mass. 1, 12, pl. 5. 3 In 1 Molloy, De Jure Maritimo (9th ed.), c. 5, pl. 14, note, it is said, with reference to the four seas: "The right unto the sea ariseth not from the possession of the shores; for the sea and land make distinct Laramie Co. v. Albany Co., 92 U. S. 307; Burns v. Clarion Co., 62 Penn. St. 425; Windham v. Portland, 4 Mass. 589; Opinion of the Justices, 6 Cush. 578; Stone v. Charlestown, 114 Mass. 214; Eagle v. Beard, 33 Ark. 497; Dodson v. Fort Smith, Id. 508; Bittle v. Stuart, 34 Ark. 224, 231; Reynolds v. Holland, 35 Ark. 56; Albernathy r. Dennis, 49 Mo. 468; State v. Shortridge, 56 Mo. 126; Opinion of Supreme Court, 55 Mo. 295; Woods v. Henry, Ibid. 560; Baltimore v. State, 15 Md. 376; Groff r. Frederick City, 44 Md. 67; Frederick v. Goshon, 30 Md. 436; Wade v. Richmond, 18 Gratt. 583; Manly v. Raleigh, 4 Jones Eq. 370; Love v. |