§ 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

3 Post, § 20. This prerogative was treated as not obsolete in 1831. Lord Warden v. The King, 2 Hagg. Adm. 438.

4 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 r. Davis, 5 Burr. 2732; Blundell v. Catterall, 5 B. & Ald. 268; Dunwich v. Sterry, 1 B. & Ad. 831; Alcock v. Cooke, 2 M. & P. 625; Legge v. Boyd, 1 C. B. 92; Stackpoole e. 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 v. 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;1 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,a 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

1 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 v. Swansea, 3 Exch. 413; Talbot v. Lewis, 6 C. & P. 606; Parsons v. Smith, 5 Allen, 578.

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.

91 Rot. Parl. 8 Hen. V. N. 6; 16 Vin. Abr. tit. Prerogative, B.; Woolrych on Waters, 19.

10 Co. Litt. 107, 260 b, § 439; Bacon's Abr. tit. Court of Admiralty; 1 Black.

at different periods, reassert the same doctrine; and Callis considers that, by the common law, the king has, in the English seas, possession and rights of property as well as of jurisdiction.1

§ 8. The narrow seas were thus considered to be within the realm of England. Although the Admiralty now has exclusive jurisdiction of questions arising upon the ocean, yet it appears that a concurrent jurisdiction was formerly exercised by the common-law courts in cases of felonies done upon the narrow seas, although they were still regarded as high seas.3 Under this theory, the Crown was entitled to royal fish which were captured in the British seas, though not to those taken in the seas beyond, and to islands which

arose from these waters. So broad a claim has not been sanctioned by the acquiescence of other nations, yet it is asserted by modern writers upon the common law,3 and was insisted upon by the British government in the present century.4

§ 9. It has been held by eminent judges that the Crown retains within the three-mile belt the rights which were formerly appropriated to it over entire seas. Thus, in the case of the Whitstable Free Fishers v. Gann,5 which involved the right to collect tolls for anchorage beyond low-water mark, Erle, C. J., laid down broadly that "the soil of the seashore, to the extent of three miles from the beach, is vested in the Crown." When this case came before the House of Lords on appeal, Lord Wensleydale appears to have assented? to that rule, as he also did upon another occasion; but

the taker, the other moiety to the admiral in right of the king." De Jure Maris, c. 7,4,6; Hargrave's Law Tracts, 42, 43; Woolrych on Waters, 63.

1 Ante, § 6.

Ortolan, Diplom. de la Mer, tom. 1, liv. 2, c. 15; Grotius, Mare Liberum; Vattel, Droit des Gens, liv. 1, c. 23, § 289; Martens, Precis du Droit des Gens, liv. 2, c. 1, § 42; 11 Edinburgh Review, art. 1, pp. 17-19; Klüber, § 132; Lawrence's Wheaton's Int. Law (2d ed.), pt. II. c. 4, p. 328. According to an ancient record between Edward the First of England and Philip the Fair of France, all the maritime nations of Europe assented to the exclusive possession and dominion of the English kings in the seas of England. Selden, Mare Clausum, lib. 2, c. 23; 4 Co. Inst. 142; 1 Roll. Abr. 528, pl. 2; 6 Vin. Abr. tit. Court of Admiralty, 2; 1 Molloy, De Jure Maritimo (9th ed.), c. 5, pl. 14; Woolrych on Waters, 5.

3 Chitty on the Prerogative, 143, 173, 206; Woolrych on Waters, 41; Hall on the Seashore (2d ed.), 2, 3, 154; Schultes on Aquatic Rights, 1-5.

4

8

In 1803 the negotiations for a settlement of the controversy between this country and England, as to the impressment of seamen by British cruisers from American merchant vessels, were broken off in consequence of the British government insisting that the "narrow seas" should be excepted out of the sphere over which the contemplated stipulations against impressment should extend. See Lawrence's Wheaton's Int. Law (2d ed.), pt. II. c. 2, p. 211. Saluting the flag was the usual recognition of England's dominion over the seas. 1 Phillimore's Int. Law, 100. Mr. Hall refers to a regulation of the English Admiralty, as existing in 1805, by which English war vessels were directed to insist upon the salute of the flag over the sea south of England as far as Cape Finisterre. Hall's Int. Law, 121. 5 11 C. B. N. s. 387, 413.

611 H. L. Cas. 192; see the same case before the Exchequer Chamber, 13 C. B. N. s. 853.

7

p. 213.

8 Gammel v. Commissioners of Woods, 3 Macq. 419, 465. Lord Wens

Lord Chelmsford, adverting more directly to the statement of Erle, C. J., and recognizing it so far as it related to territorial property and jurisdiction as against foreign powers, doubted its correctness with reference to the subjects of England.1 So, according to Lord Cranworth,2 Judge Story, and Chief Justice Shaw, the right of soil in the sea as well as the shore was in the Crown by the common law. In the case of The Leda," Dr. Lushington, although not passing directly upon the Crown's right of property in the sea, held

2 Attorney General v. Chambers, 4 gave, and that was the colonial view De Gex, Mac N. & G. 206, 213.