nation's jurisdiction extends to the punishment of its citizens for offences committed on deserted islands or an uninhabited coast;1 and the consensus of civilized nations may establish rules for navigators having the force of a law of the sea.2 But, with respect to property, the sea is not subject to the

its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when generally accepted, became of universal obligation. The Rhodian law is supposed to have been the earliest system of marine rules. It was a code for Rhodians only, but it soon became of general authority, because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Analphitan Table, of the ordinances of the

Dears. & B. C. C. 525; Reg. v. Lesley, 8 Cox, C. C. 269; Bell, C. C. 220; Reg. v. Anderson, L. R. 1 C. C. 161; Lawrence's Wheat. Int. Law, pt. II. c. 2, § 4; Wildman's Int. Law, 40; Halleck's Int. Law, 185; Bluntschli, § 317; Parker v. Byrnes, 1 Lowell, 539; Johnson v. 21 Bales, 2 Paine, 601; United States v. Bennett, 3 Hughes, 466; Calahan v. Babcock, 21 Ohio St. 281. The State to which a vessel belongs, and not the United States, is, in this country, the sovereignty whose laws accompany the vessel in respect to matters which are not granted exclusively to the general government or rightfully legislated upon by Congress. Crapo v. Kelly, supra; Steamboat Co. v. Chase, 16 Wall. 522; 9 R. I. 419; Sherlock v. Alling, 93 U. S. 99; McDonald v. Mallory, 77 N. Y. 546. 1 United States v. Smiley, 6 Sawyer, Hanseatic League, and of parts of the 640.

"

Ex parte McNeil, 13 Wall. 236; The Scotia, 14 Wall. 170, 187; The Continental, 14 Wall. 345; Wilson v. McNamee, 102 U. S. 572; Lord v. Steamship Co., 102 U. S. 541; 1 Kent Com. 27; Vattel, bk. 1, c. 19, § 216; 2 Rutherford's Inst. bk. 2, c. 9, §§ 8, 19. In The Scotia, 14 Wall. 187, Mr. Justice Strong said: 'Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been

marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, express or understood, of maritime nations? When, therefore, we find such rules of navigation as are mentioned in the British orders in council of January 9, 1863, and in our Act of Congress of 1864, accepted as obligatory rules by more than thirty of the

exclusive dominion of any nation, and cannot be apportioned by municipal law.1

§ 2. It is somewhat different with respect to those parts of the sea which adjoin the shores of civilized nations. By general consent they have been regarded as capable of appropriation, and of being held by a kind of possession. Maritime countries have claimed from the earliest times a more or less extended dominion over these waters, and subjected them to the laws and regulations of the state; and upon grounds of self-protection and mutual advantage to all such countries, the dominion of the land has been acknowledged to carry with it the control of the contiguous seas,2 and the exclusive right to enjoy whatever of value may be acquired therefrom.3 The dominion over the territorial seas, as they are called, may, therefore, include rights of jurisdiction, or of property, or both. By the modern law of nations, the territorial waters extend only to such distance as is capable of command from the shore, or the presumed range of cannon, which, for the purpose of certainty, is regarded as one marine league.1

principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them, as, in part at least, and so far as relates to these vessels, the laws of the sea, as having been the law at the time when the collision of which the libellants complain took place. This is not giving to the statutes of any nation extra-territorial effect. It is not treating them as general maritime laws, but it is a recognition of the historical fact that, by common consent of mankind, these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations."

1 Vattel, § 279; Grotius, bk. 2, §§ 3, 7; Cooper's Justinian, 67, § 1; 1 Phil. Int. Law, c. 5.

2 Grotius, De Jure Belli, lib. 2, cap. 2, § 13; cap. 3, §§ 13, 2; Loccenius, De Jure Maritimo, c. 4, §§ 5, 6; Puf

fendorf, De Jure Naturae, lib. 4, c. 2, § 8; Vattel, Droit des Gens, §§ 205, 288-295; Craig, Jus Fend. lib. 1, § 133, p. 140; Wolff, Jus Gentium, c. 1, §§ 128-132; Hautefeuille, Hist. du Droit Maritime, p. 197; Ortolan, Diplomat de la Mer, lib. 1, pp. 174, 175, 177; lib. 2, c. 8, p. 157; Heffter, Pub. Int. Law, §§ 72, 75; Halleck, Int. Law, c. 5, § 13; 1 Kent Com. (12th ed.), 27-30; Manning, Law of Nations (Amos's ed.), p. 119; Lawrence's Wheaton's Int. Law, pt. II. c. 4; 1 Phillimore's Int. Law (2d ed.), 209, 218, 235.

3 Puffendorf, lib. 4, c. 5, § 7; Vattel, lib. 1, c. 23; Schultes, Aquatic Rights, 1-5; Lawrence's Wheaton's Int. Law, pt. II. c. 4, §§ 8, 10; 1 Phillimore's Int. Law (2d ed.), 209, 218, 235; 1 Kent Com. 26-31.

Ibid. According to some writers a nation may extend its jurisdiction seaward with the increased range of cannon. Hall, Int. Law, 127; 1 Fiore Int. Law, 373; Bluntschli, § 303.

§ 3. Amid the diversity of opinions which have prevailed respecting this dominion, claims have been advanced both as to its extent and character which now seem extravagant.' At an early period England claimed dominion over the four seas which surround her coasts, including the right to prohibit foreign vessels from passing over them, and the right of property in them; and in the controversy as to the freedom of the seas in the seventeenth century, the English writers and lawyers, under the lead of Selden,2 strenuously maintained

the right of the crown of England to these waters, insisting that the title to the sea and to the fundus maris, or bed of the sea tam aquae quam soli - was in the king. This is the doctrine of the ancient municipal law of England, under which the Crown had a property in the adjacent seas both as against foreign nations and its own subjects.2 Under the civil law, the sea was common property, and the seashore was classed by different writers among the res communes, or among the res publicae, as being either common property or the property of the state. There was here no exclusive or beneficial interest in the sovereign, but so far as private property is concerned, the sea and its shores were considered to be res nullius. By the Roman law, and by the ancient common law, as stated by Bracton, occupancy was the source of title to the sea and the seashore, and pearls, gems, and other things found there, as well as islands which spring up in the

contended for the fullest exercise of dominion over the British seas, both as to the passage through and fishing in them; while Sir Philip Medows suggested more confined rights, as to exclude all foreign ships of war from passing upon any of the seas of England without special license, to have the sole marine jurisdiction within those seas, and also an appropriate fishery. Woolrych on Waters, 5; Selden, Mare Clausum, lib. 1, c. 26. Observations concerning the Dominion and Sovereignty of the Seas, by Sir Philip Medows (1689); Justice's Sea Laws, art. 1, pt. 1; Co. Litt. 107 b, 260 a, note 1, and Hargrave's notes; Hall on the Seashore (2d ed.), 1, 2; Jerwood on the Seashore, 13; Chitty on the Prerogative, 142, 173, 206.

1

Selden, Mare Clausum, c. 22, 24; Bacon's Abr. tit. Prerogative, B. 3; Hall on the Seashore (2d ed.), 2; Jerwood on the Seashore, 13; Co. Litt. 107 a, 260 a, and notes; 4 Inst. 60; 2 Roll. Abr. 169, 170; Royal Fishery of the Banne, Sir John Davies, 149; Sir John Constable's Case, 3 Leon. 71, 73; Staunford's Abr.; Life of Sir Leoline Jenkins, vol. 2, p. 732; Sir Philip

Medow's Observations; Justice's Sea
Laws, art. 1.

2 Ibid. Lord Hale says: "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. This is abundantly proved by that learned treatise of Master Selden called Mare Clausum; and therefore I shall say nothing therein, but refer the reader thither." De Jure Maris, c. 4; Hargrave's Law Tracts, 10. Lord Hale refers frequently in the same treatise to "the property and jurisdiction of the king of England in the narrow seas." See Hargrave's Law Tracts, 31, 32, 41, 43.

3 The seashore was classed among things common by Justinian (I. 2, 1, 1); but Celsus says (D. 43, 8, 3) that it belonged to the state. See Mackenzie's Roman Law, 152; Goudsmit's Roman Law, 113, note.

sea, and derelict goods, belonged to the finder or first occupant. The rule of the modern common law, whereby the king has a private interest, apart from the ownership of the adjoining lands, in those tide waters which are within the territory of England, appears to be connected historically with the above claim of sovereignty over the narrow seas, and to be derived therefrom.2

§ 4. By the present law of England, the Crown has the right of property in the arms and inlets of the sea within the realm, if not in the sea itself. This right includes the bed of all tide waters which are or may be within the counties.1 The strip of land along the coast which is daily covered and left bare by the tide, and is called the shore," is a part of the county when the tide is out and a part of the sea when the tide is in. There is here divisum imperium between the