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ever commodious the haven may be, and whatever protection to vessels it may afford, it is not a port unless it has been established as such by authority of the Crown.1 Hence, in ports, not only is the ownership of the soil vested 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,4 and are established and controlled by the king as guardian of the realm.6
c. 2; Hargrave's Law Tracts, 46-48. "It is a part of the jus regale or royalty of the Crown of England originally and de novo to erect publick ports in this kingdom. As all franchises within the kingdom are derived from the Crown, either immediately and explicitly; as by new erection, grant, or charter, or presumptively and consequentially, as by custom or prescription; so in a special manner are the ports and the franchises thereof." Id. c. 3; Hargrave's Law Tracts, 53, 54. "In all publick sea-ports in England,there are three kinds of rights that meet; and though they are distinct one from another, yet they consist one with another, whether the ports belong in point of franchise or propriety to the king or to a subject. 1st, Jus privatum, interest of propriety or franchise. 2nd, Jus publicum, the common interest that all persons have to resort to or from publick ports, as publick sea-marts or markets, with their goods, and wares, and merchandises. 3rd, Jus regium, or the right of superintendence and prerogative that the king hath for the safety of the realm, or benefit of commerce, or security of his customs. . . . The jus privatum takes in these several branches; 1st, The right of the lord or owner of the port. 2nd, The right of those that have the propriety of the shore contiguous to the port. 3rd, The right of the town, or ville, that is the caput partus, anii the inhabitants thereof. . . . Though of common right, the king is prima facie the owner and lord of every publick sea-port, yet a subject may by charter or prescription be lord or owner of it. . . . The ownership of propriety is, where the king or common person by charter or prescription is the owner of the soil of a creck or haven where ships may safely arrive and come to the shore. This interest
of propriety may, as hath been shown, belong to a subject, but he hath not thereby the franchise of a port; neither can he so use or employ it, unless he hath had that liberty time out of mind or by the king's chartev." Id. c. 6; Hargrave's Law Tracts, 72, 73. Id. c. 4; Hargrave, 54, 55. "Though A. may have the propriety of a creek or harbour or navigable river, yet the king may grant there the liberty of a port to B. and so the interest of propriety and the interest of franchise several and divided. And in this no injury is at all done to A. for he hath what he had before, viz., the interest of the soil, and consequently the improvement of the shore and the liberty of fishing; and as the creck was free for any to pass in it against all but the king, for it was publici juris as to that matter before, so now the king takes off that restraint, and by his licence and charter makes it free for all to come and unlade." Id. c. 6; Hargrave, 73. ... "When a port is fixed or settled by such means, though the soil and franchise or dominion thereof prima facie be in the king or by derivation from him in a subject; yet that jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested, by reason of common commerce, trade, and intercourse. And this publick right consists principally in these: 1st, They ought to be free and open for subjects and foreigners, to come and go with their merchandise. . . . 2nd, There ought to be no new tolls or charges imposed upon them without sufficient warrent, nor the old inhanced. . . . 3rd, They ought to be preserved from impediments and nusances that may hinder or annoy the access or abode or recess of ships and vessels and seamen, or the unlading or relading of goods. Nusanccs of parts are of two kinds: 1. Sucli as are immediately only nusanccs to the private concernment of the lord of the franchise of the town that is caput portus. ... 2. Such nusances as are common to all men that have occasion to come, go, or stay at ports. I will give instances of some. 1. Silting or choaking up the port, either by the sinking of vessels in the port, or throwing out of filth or trash into the port, whereby it is ehoaked. 2. Decay of the wharfs, keys, and piers, which are for the landing of merchandise and safe-guard of shipping. 3. The leaving of anchors in the port without buoys or marks, whereby ships or vessels may strike against them and be spoiled. 4. The building of new wears or inhancing of old, whereby navigation or passage of vessels is obstructed. 6. The straightening of the port, by building too far-into the water, where ships or vessels might have formerly ridden; for it is to be observed, that nusance or not nusance in such case is a question of fact. It is not therefore every building below the high water mark, nor every building below the low water mark, is ipso facto in law a nuisance. For that would destroy all the keys that are in all the ports in England. For they are all built below the high water mark; for otherwise vessels could not come at them to unlade; and some are built below the low water mark. And it would be impossible for the king to licence the building of a new wharf or key, whereof there are a thousand instances, if ipso facto it were a common nusance, because it straitens the port, for the king cannot license a common nusance. Nay, in many cases it is an advantage to a port to keep in the seawatcr from diffusing at large; and the water may flow in shallows, where
it is impossible for vessels to ride. Indeed, where the soil is the king's, the building below the high water mark is a purpresture, an encroachment, and intrusion upon the king's soil, which he may either demolish or seize, or arent at his pleasure; but it is not ipso facto a common nusance, unless indeed it be a damage to the port and navigation. In the case therefore of building within the extent of a port in or near the water, whether it be a nusance or not is guaestio facti, and to be determined by a jury upon evidence, and not quaestio juris. . . . A port or publick passage may not be obstructed; nay, if it begins to be silted or stopped, yet it must be scoured, and cannot be wholly dammed or filled up, although another cut be made as beneficial as the former, without an inquisition by writ of ad quod damnum finding it to be no damage to the publick, and the king's licence thereupon obtained; as appears by the writ of ad quod damnum cited formerly to another purpose. Register 252. ... As to the provisions by the common law we are to observe, that as the common law hath intrusted the king with the patronage and protection of the jura publico, as highways, publick rivers, ports of the sea, and the like; so the care of preventing and reforming of publick nusances therein is left to him, and his courts of justice, the prosecutions for them are in his name, and the fines for the defects or annoyances in them are part of his revenue." Id. c. 7; Hargrave, 84-87.
1 Foreman v. Whitstable Free Fishers, L. R. 4 II. L. 266; L. R. 3 C. P. 584; Nicholson v. Williams, L. R. (i Q. B. 032 ; Case of the London Wharfs, 1 Sir W. Black. 581; Jenkins v. Harvey, 1 C. M. & R. 877; Falmouth v. George, 5 Bing. 280: Exeter v. War
§ 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."6 The
ren, 5 Q. B. 773; Yarmouth v. Eaton, 3 Burr. 1402; Hale, De'Portibus Maris, c. 2; 2 Black. Com. 499.
i Hale, De Portibus Maris, c. 6. See note 2, ante, p. 10.
* Exeter v. Warren, 5 Q. B. 773.
3 Per Holroyd, J., in Blundell v. Catterall, 5 B. & Ald. 208; The Baltimore Wharf Case, 3 Bland Ch. 383.
4 Ports are thus frequently characterized in the older authorities. 1 Black. Com. 204; 2 Feud. 1, 50; F. N. B. 113; Royal Fishery of the Banne, Sir John Davies, 149; Hale, De Portious Maris, c. 3, 7; Hargrave's Law Tracts, 50, 54; Bacon Abv. tit. Prerogative, D. 5; Com. Dig. tit. Navigation; Chitty's Prerogatives of the Crown, 100.
• Hale, De Jure Maris, c. 4; 2 Hale, P. C. 10, 17, 54; Staunford, P. C. bk. 1, p. 51; Hawkins, P. C. pt. 2, c. 9, § 14; 4 Inst. 140 ; Fitzherbert's Abv. Corone, 309; Case of the Admiralty, 12 Co. 70; Cunningham's Case, Bell, C. C. GO;
Rex v. Bruce, Russ. & Ry. 243, and 2 Leach, C. C. 1093; Direct U. S. Cable Co. v. Anglo-American Telegraph Co., 2 App. Cas. 394; King v. Soleguard, 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. 330, 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, 208, 270; People v. Supervisors, 73 N. Y. 393, 306; United States v. Robinson, 4 Mason, 307; DeLovio v. Boit, 2 Gall. 398, 425; United States v. Wiltberger, 5 Wheat. 100; 2 Hawkins, P. C. c. 0, § 14; 2 East, P. C. 804; Com. Dig. tit. Adm. E.; Bacon's Abr. tit. Admiralty, A.; 1 Kent Com. 366, 307. See United States v. Ross, 14 American Law Rev. 530; 2 Browne, Civ. & Adm. Law, 92. rule bein<r 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.1 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,4
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 /mnnta in the printed statute of 10, R. 2, o. 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, 208. In the recent case of Direct U. S. Cable Co. !?. 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 duetrine to any particular place, nor to define what was meant by seeing or
discerning. If it means to say what
3 Per Story, J., in United States v. Crush, 5 Mason, 290, 301.
4 Thus, in the treaty of 1867, between England and France, as to Sea Fisheries, confirmed by act of Parliament in 1808 (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, .viln 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,i 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 Reyina v. Cunningham,* 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.3 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.4 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.6
i 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, i>., 32r,; Grotius, De Jure Belli, bk. 2, c. 3, §§ 7, 8; Vattcl, bk. 1, c. 3, § 200; Ortolan, Diplora. 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. 03. See Commonwealth v. Peters, 12 Met. 387; Commonwealth v. Alger, 7 Cush. 82; Commonwealth v. Roxbury, 9 Gray, 451, 404, 512, note; Pollard c. Hagan, 3 How. 230.
4 Bell, C. C. 86. Compare Chase v. American Steamboat Co., 0R. I. 410; s. c. now. Steamboat Co. v. Chase, 10 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 ,>. Alling, 93 U. S. 99, 104. As to the jurisdiction over Long Island Sound, see Mahlel i>. Norwich Transportation Co., 35 N Y. 352; Keyser v. Coe, 0 Blatch. 32; The Sloop Elizabeth, 1 Paine, C. C. 10.
4Ante, § 4; Direct IT. S. Table