States, that the territorial limits of the State extend three miles seaward from the shore.1 § 17. The rights of the Crown in tide waters are classed among the regalia or prerogative rights, like the right to treasure trove, to wreck, and the privilege of appointing ports and havens. Such privileges are accorded to the king by the common law, as incident to the powers of government, for the protection of the realm, the regulation of the marine revenues, and in the interest of commerce.2 Accord 1 In Massachusetts, "the territorial limits of this commonwealth extend one marine league from its seashore at low-water mark"; "the boundaries of counties bordering on the sea extend to the line of the State as above defined"; and "the sovereignty and jurisdiction of the commonwealth extend to all places within the boundaries thereof." St. 1859, c. 289; Gen. Sts. (1860) c. 1, §§ 1, 2. And the boundaries of cities and towns bordering upon the sea extend to the State line. St. 1881, c. 196. In Rhode Island there is a similar statute, the line being, however, one league from the seashore at high-water mark. Gen. Sts. (1872), c. 1, §§ 1, 2. See Rev. Sts. of R. I. (1857), c. 7, 8. In the Constitution of California, Art. 12, the State is bounded on the south along the boundary line between the United States and Mexico "to the Pacific Ocean, and extending therein three English miles"; and in the Political Code of that State it is provided, with respect to county boundaries (Sec. 3907), that "the words 'in,' 'to,' or 'from the ocean shore mean a point three miles from shore. The words 'along,' 'with,' 'by,' or 'on' the ocean shore, mean a line parallel with and three miles from the shore." Thus the boundary of Del Norte County, which is the northerly sea-coast county of that State, begins at a point in the Pacific Ocean, at the southern line of Oregon, and runs "thence southerly by ocean shore," &c. Code, § 3909. As to the statutes of New York, see Mahler v. Norwich Transportation Co., 35 N. Y. 352, 360. See, also, Constitution of Alabama, Art. 2, § 1, and Code 1876, § 12 (16). The Republic of Texas defined its southern boundary as extending from "the mouth of the Sabine River and running west along the Gulf of Mexico, three leagues from land to the mouth of the Rio Grande," and after the annexation of Texas, the State reaffirmed this right of jurisdiction. In Galveston . Menard, 23 Texas, 349, 391, it is said that the admission of this claim by other nations might depend upon the power of the littoral state to enforce it, but that the boundary thus established was conclusive between its own citizens with respect to the right of soil. By the treaty between the United States and Mexico (9 St. at Large, 926, § 5), it was provided that the boundary line between the two countries should commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande River, and run northward with the middle of the river. See The Peterhoff, 5 Wall. 28, 51. 21 Black. Com. 263, 264; 2 Id. 14, 105, 204; Selden, Mare Clausum, lib. 2, c. 22, 24; Callis on Sewers, 39–41; Chitty's Prerogative of the Crown, 142, 173, 206; Com. Dig. tit. Pre ing to the treatise De Jure Maris, commonly ascribed to Lord Hale, and other authorities of the seventeenth century, which refer to early precedents, the Crown's interest in navigable waters is of a two-fold nature: first, the jus publicum, a right of jurisdiction and control for the benefit of its subjects, which is similar to the jurisdiction over public highways by land, though the right of soil may be in the owners of the adjoining estates, and for the protection of which the king, as the head of the realm, may interpose when the rights of the public are impaired; 1 second, the jus privatum, or right of private property, which is subject to the jus publicum, and which cannot be used by the Crown or conveyed to a subject discharged of this public trust, or so as to justify any interference with the public rights of navigation and rogative D., and Navigation B.; Bacon's Abr. tit. Court of Admiralty A., and Prerogative B. 1, 3; 2 Roll. Abr. 168; Co. Litt. 1 b, 65 a; 3 Kent Com. 487; Woodward v. Fox, 2 Ventris, 267; Bracton, lib. 3, § 120; Hall on the Seashore (2d ed.), 6. "The king being to look to the sea as well as to the dry land, and being to defend his subjects both by sea and land, the law, therefore, gives him many prerogatives both upon the one and the other. As thus: (1) That the king, as supreme, is custos totius regni Angliae, and to take care both of sea and land, of both which he, not only as to protection, but as to propriety, is said to be the lord. And therefore that the four seas, being as the walls of the kingdom, and havens, creeks, and ports adjoining to the sea, being the gates and posterns of it, are said by law to belong to him, and he is to name and appoint the officers for the custody thereof.... (4) That in cases where the sea-banks be broke or the sewers or gutters thereof not secured, the king might heretofore (by the common law) have appointed commissioners of sewers, and have given them commission to inquire of and to have punished the defaults, and to have ordered the repairs of the passages, gutters, and rivers that lead into the sea. The which is now further provided for by the statutes of 23 Hen. 8, cap. 5, and 13 Eliz. cap. 9, and 1 Mar. cap. 11, with many others. (5) That the king may, upon special occasion, arrest ships within the seas for the voyages of the realm. (6) That he may by law, for his enablement and encouragement herein, and to help to maintain his navy, have and take divers privileges and advantages in, upon, and about the sea and rivers thereunto belonging. For (1) the soil, banks, and shores, as high as they flow and reflow, belong to him. (2) He is to have all the havens, ports, and creeks thereof. (3) He is to have all the navigable rivers and breaches of the sea, as Thames and Lee and the rest, which are his streams: and he hath, and is to have in them, the same prerogative, so high as the sea floweth and refloweth in them, as he hath in alto mari. And therein the fishing, rigore juris, as a royal fishery, doth belong to him." Shepperd's Abridg. (2d ed.), tit. Prerogative, pt. 3, p. 97. Hale, De Jure Maris, c. 6; grave, 36. Har fishery. In the case of Attorney General v. London, Sergeant Merewether presented an elaborate argument,2 in which he contended that, upon an examination of the early authorities, including the Saxon charters and laws, Domesday book, in which the king's lands are enumerated, the works of Bracton, Glanville, Fleta, and Britton, and the ancient decisions, no trace of a private interest in the Crown was found, but that, on the contrary, there were traces of a territorial right to the shores of tide waters as belonging to the adjacent lands; that the treatise De Jure Maris, which had been accepted as the repository of ancient learning upon this and kindred subjects, was not with good reason ascribed to Lord Hale, the use of whose name had given an undue weight to the statements there made; 3 that the theory of a jus privatum had its rise in the arbitrary reigns of the Stuarts, from which period precedents for such a doctrine should be taken with caution; and that, while the Crown had confessedly certain rights in the sea and its shores, including dominion and jurisdiction over them by its courts, and the duty to care for them in the interests of navigation and for the public benefit, the proposition that it had also a private and beneficial interest, and a right to take the fruits of the seashore, independently of any title to the adjoining lands, had been asserted rather than controverted and adjudged. § 18. The case in which this argument was delivered appears to have been decided upon other grounds, and the later English decisions support the title of the Crown in accordance with the statements of the treatise De Jure 1 Probably reported in 8 Beav. 270; 12 Beav. 8; 2 Mac. & G. 247; 1 II. L. Cas. 440. 2 Published in the Appendix to Hall on the Seashore (2d ed.). See Jerwood on the Seashore, which contains a reply to this argument. 3 Certain of the ancient charters contained express grants of the sea shore, salt marshes, etc., accompanying the grant of the lands included in the charters. Thus Hale refers to a grant of King Canute "de terra insulae Thanet, tam in terra quam in mari et littore"; and to another of William the First, "de tota terra Estanore, et totum littus usque mediatatem aquae." De Jure Maris, c. 5. Maris. It seems to admit of little doubt that this celebrated treatise was written by Sir Matthew Hale, and it is uniformly ascribed to him in the decisions of the English and American courts.2 But the reported cases, which came before the English courts in the seventeenth century, tend to show that the doctrine was not then fully recognized; In Lord Advocate . Blantyre, 4 App. Cas. 770, 773, note, Lord Curriehill, Lord Ordinary, said in the court below: "There is no longer any doubt, if such ever existed, that the foreshore of the sea and of navigable rivers, though belonging to the Crown, subject to certain public uses connected with navigation and the like, are nevertheless alienable by the Crown subject to such public uses." In Gann v. Whitstable Free Fishers, 11 C. B. N. s. 387, Erle, C. J., said that there is no rule of law which prevents the Crown from granting to a subject that which is vested in itself. 2 See Regina v. Betts, 4 Cox, C. C. 213; Attorney General v. Chambers, 4 De Gex & J. 55, 71; Calmady v. Rowe, 6 Man. G. & S. 878, note; Exeter v. Warren, 5 Q. B. 773, 801; Ipswich Dock v. St. Peter, 7 B. & S. 310, 344; King v. Ward, 4 Ad. & El. 384, 406; King v. Yarborough, 3 B. & C. 91; 2 Bligh, N. S. 147; 1 Dow, N. S. 176; Bolt v. Stennett, 8 T. R. 606; Aldnutt v. Inglis, 12 East, 527, 537; Attorney General v. St. Aubyn, Wightwick, 262; Murphy v. Ryan, Ir. R. 2 C. L. 143; Blundell v. Catterall, 5 B. & Ald. 268; Ex parte Jennings, 6 Cowen, 536, note; Per Waite, C. J., and Field, J., in Munn . Illinois, 94 U. S. 113, 126, 149; Per Gray, J., in Nichols v. Boston, 98 Mass. 39, 41, and Haskell v. New Bedford, 108 Mass. 208, 215; Berry v. Snyder, 3 Bush, 266, 275; Phear's Rights of Water, 47, note m; Jerwood on the Seashore, 31, 94, 118. Lord Hale's views appear in his judgment as Chief Justice in Lord Fitzwalter's Case, 3 Keb. 242; 1 Mod. 105 (s. c. 3 Keb. 459, 465, 485, 519, 555; 2 Lev. 139; 1 Freem. 414), and by his position as counsel in Johnson v. Barrett, Aleyn, 10, referred to in the next note. Sir Matthew Hale died in 1676, and the treatise De Jure Maris, though probably written in the earlier part of the seventeenth century, was not published until 1787. 3 Merewether argues that the jus privatum was not acknowledged in the English law prior to the case of Bulstrode v. Hall, Sid. 182, decided in 1663. He refers particularly to Johnson v. Barrett, Aleyn, 10 (1646). This was an action of trespass for carrying away soil and timber, in which it appeared that the bailiff and burgesses of Yarmouth had destroyed a wharf erected in that town. Rolle, the presiding justice, stated that if it were erected between the high and lowwater mark it belonged to the owner of the adjoining land, while Hale, who was counsel in the case, earnestly affirmed that it belonged to the Crown of common right. But it was clearly agreed that if it were erected beneath the low-water mark, it belonged to the king. Merewether argues that Hale would have cited this case in which he was counsel, if he were the author of the treatise De Jure Maris, or that, the case not being referred to in that treatise, it was decided against his doctrine. Woolrych (on Waters, 20) says of this case that "if it were understood that the soil between high and low-water mark might belong to a subject by grant or prescription, as might well be the fact, and that the soil below low-water mark belonged to the Crown, as being of little or no and, as the American colonies were settled from England at that time, those cases and the argument of Sergeant Merewether appear to have a significance in this country, where, as will be hereafter seen, the ancient usages of most of the original States allow to the owners of the adjoining lands rights in the soil below the high-water mark of tide waters, which are unknown to the common law of England, and where, in accordance with the dicta of the earlier English decisions, the view generally accepted has been that the Crown holds this property solely as a trustee for the public, and cannot, since Magna Charta, convey it to a subject.2 §19. Various reasons are jus privatum in the Crown. assigned for the existence of a Under the fiction of the feudal 268; Somerset v. Fogwell, 5 B. & C. 875, 884; Attorney General v. Farmen, 2 Lev. 171; T. Raym. 241; 2 Mod. 106. value as the subject of a grant, there would be no difficulty in reconciling the opinions of the great lawyers who differed upon that occasion." It appears that the plaintiff afterwards had Per Kirkpatrick, C. J., in Arnold judgment. 2 Rol. Abr. 250, pl. 7. . Mundy, 1 Halst. 1, 12, 77, 78; See Boston v. Richardson, 105 Mass. Nevins, J., in Bell v. Gough, 23 N. J. 351, 362; Barnstable v. Thacher, 3 L. 624, 684, 688; per Bellows, J., in Met. 239, 243; Jerwood on the Sea- Clement v. Burns, 43 N. H. 609, 616; shore, 61. In Anon. Dyer, 326 b (15 Martin v. Waddell, 16 Peters, 367, & 16 Eliz.) it was doubted whether 410; Pollard v. Hagan, 3 How. 212; the king was entitled to land left by the Goodtitle v. Kibbe, 9 How. 471; Barsea; and in Attorney General . Far- ney . Keokuk, 94 N. S. 324; Commen, 2 Lev. 171, it was debated whether monwealth v. Wright, 3 Am. Jur. 185; such land belongs to the Crown as a Hatfield v. Grimstead, 7 Ired. 139; thing of inheritance or of prerogative, Galveston v. Menard, 23 Texas, 349; and it was held that no patent could Chapman v. Kimball, 9 Conn. 38; be made of the soil under the sea until McManus v. Carmichael, 3 Iowa, 1, it has become convertible or derelict. 29. In Barker v. Bates, 13 Pick. 255, See, also, Attorney General ». Turner, 259, Shaw, C. J., speaking of the law 2 Mod. 104; 2 Lev. 171; Whitaker of England, said: "There the rule is r. Wise, 2 Keb. 759. Lilly, who, al- that the right of property to highthough not a writer of high author- water mark is in the Crown, but it is ity, perhaps shows the popular under- deemed to be so held in trust for the standing prior to the publication of use and benefit of all the king's subthe De Jure Maris, says: "Lands be- jects, and therefore such right of tween the high-water and low-water property cannot be granted by the mark belong to the lord of the manor crown to a subject." See the opinnext adjoining, as part of his manor; ions of the same judge in Commonand he can claim by prescription to wealth v. Alger, 7 Cush. 53, 89-94; have wreck and fishing there." 2 Lilly's Practical Register, tit. Rights. 'Blundell v. Catterall, 5 B. & Ald. Weston v. Sampson, 8 Cush. 347, 352; Commonwealth v. Roxbury, 9 Gray, 451, 483. |