Page images
PDF
EPUB

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 common property or highway of mankind." Reference is made to the statements of Selden, Hale, Coke, and Blackstone (see ante, § 7) and it is then said (p. 196): "To what, after all, do these ancient authorities amount? Of what avail are they towards establishing that the soil in the three-mile zone is part of the ⚫ territorial domain of the Crown? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. . No one has gone the length of suggesting, much less of openly asserting, that the jurisdiction still exists. It seems to me to follow that when the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is

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

'The decision in Regina v. Keyn is binding upon all the English courts. Harris v. 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.

[ocr errors]

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

territories, and by the laws of England, the land is called the realm, but the sea the dominion; and as the loss of one province doth not infer that the prince must resign up the rest, so the loss of the land territory doth not by concomitancy argue the loss of the adjacent sea."

42 Ex. D. 63.
5 Ante, §§ 7-10.

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 r. Stuart, 34 Ark. 224, 231; Reynolds v. Holland, 35 Ark. 56; Albernathy v. 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 v. 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.

declare that the external bounds of a State upon the seacoast are limited by those of its counties, is but another form of saying that both depend upon the will of the legis lature. According to the decisions in the State courts, these boundaries are not necessarily identical. Thus, in Schooner Norway v. Jensen,2 in Illinois, Breese, C. J., said, with reference to the western part of Lake Michigan: "It is true, no portion of this vast body of water has been assigned to the counties bordering upon it, or received in any manner the attention of the legislature, yet it is, nevertheless, a portion of the navigable waters of this State and of our territory." The right of fishing within the distance of three miles from the shore was not considered in Regina v. Keyn, and appears to belong exclusively to the inhabitants of the littoral State.3

Schenck, 12 Ired. 304; Wallace v. Trustees, 84 N. C. 164; People v. Hill, 7 Cal. 97; San Francisco v. Canavan, 42 Cal. 541; State v. Branin, 3 Zab. 485; Pell v. Newark, 40 N. J. L. 71; Detroit v. Blackeby, 21 Mich. 84; Barner v. District of Columbia, 91 U. S. 540; Beckwith v. Racine, 7 Biss. 142.

1 Mahler v. Norwich Transportation Co., 35 N. Y. 358; 45 Barb. 226; 30 How. 237; Manley v. People, 7 N. Y. 295, 299, 303; Dunham v. Lamphere, 3 Gray, 268, 270; Commonwealth v. Roxbury, 9 Gray, 451, 494; Keyser v. Coe, 37 Conn. 597, 613; Powers v. Larrabee, 1 Wis. 200; State v. Cameron, 2 Chand. (Wis.) 172; Hart v. Rogers, 9 B. Mon. 418, 422; United States v. Bevens, 3 Wheat. 336, 386; Montgomery v. Henry, 1 Dall. 49; Tyler v. People, 8 Mich. 320; 7 Mich. 161; 11 Am. L. Rev. 625. In this article in the American Law Review by Hon. Dwight Foster, it is said with reference to a nisi prius case tried in the Superior Court of Massachusetts in Barnstable County: "In the course of the trial, the presiding judge remarked: 'If the jurisdiction of the State extends to the distance of a marine league from the shore, as I

suppose it does, it does not follow, as
a matter of course, that the jurisdic-
tion of the county of Barnstable ex-
tends to that distance. I do not find
any authority to that effect.' This.
nisi prius ruling was made by one of
the ablest men of his day (Charles
Allen of Worcester), who shortly
after declined the place of Chief Jus-
tice of Massachusetts, upon the re-
signation of Shaw, C. J.
But we
refer to it, chiefly because it led to
the immediate passage of the Massa-
chusetts statute cited above." In
the King v. 49 Casks of Brandy, 3
Hagg. Adm. 275, 290, Sir John Nicholl
said: "No person ever heard of a
land jurisdiction of the body of a
county which extended to three miles
from the coast." In Maine, it is held
that every part of the State is within
some one of its counties. State v.
Wagner, 61 Maine, 178.

2 52 Ill. 373, 380.

3 See Gammell v. Commissioners of Woods and Forests, 3 Macq. 149; Dunham v. Lamphere, 3 Gray, 268; Schultes, Aquatic Rights, 3; Chitty on the Prerogative, 100; Vattel, tit. 1, c. 23; Puffendorf, IV. 4; VII. 8; Craig, Jus Feud. lib. 1, 15, § 13; Law.. rence's Wheaton's Int. Law, pt. II. c. 4;

§ 14. All political bodies are not limited by the lines which bound their sub-divisions. Counties are made up of towns, cities, or parishes, and yet the seashore between high and low-water mark, though within the county at low tide,2 is presumed to be extra-parochial with respect to jurisdiction. This presumption applies to the shore of an arm of the sea and of a tidal river 5 as well as to the shore of the external coast.

§ 15. In Regina v. Keyn, Kelly, C. B., and Sir R. Phillimore doubted whether Parliament could, consistently with a due regard to the rights of other nations and the principles of international law, create a general jurisdiction over the threemile belt. It appears, however, to admit of little doubt that there is no legal restraint upon the legislature to assert and exercise such power. The subject was discussed in Parliament shortly after the above decision, and a statute was enacted by which foreigners passing in foreign vessels, within three miles of the shore, were made subject to the criminal law of England. This statute appears to extend the juris

diction only.

Martens, Precis du Droit, § 153; Hall's International Law, 125. In the recent English work by Coulson and Forbes on Waters (pp. 2, 4, 11) it said that a nation may bind itself by treaty, and perhaps by non-user, from participating in the common right of fishing at certain places in the sea in favor of other nations; and that "there can be no doubt but that by treaty, or by the implied assent of nations, the right of fishing within three miles of the coast of the United Kingdom is vested exclusively in the inhabitants subjects of her Majesty."

1 Embleton v. Brown, 3 El. & El. 234; Regina v. Musson, 8 El. & Bk. 900; ante, 13.

Regina v. Musson, 8 El. & Bk. 900; Waterloo Bridge Co. v. Cull, 28 L. J. Q. B. 75; 5 Jur. 1288. See Hale, De Jure Maris, c. 6, I; Calmady v. Rowe, 6 C. B. 880; Regina v. Gee, 1

El. & El. 1068; McCannon v. Sinclair, 2 Ib. 53; Perrott v. Bryant, 2 Y. & C. 61, 69; 31 & 32 Vict. c. 122, § 27; Blackpool Pier Co. v. Fylde Union, 46 L. J. M. C. 189; 36 L. T. 251; Reg. v. Newport, 31 L. J. M. C. 267.

3 Ipswich Dock Commissioners v. St. Peter, 7 B. & S. 310.

4 Bridgewater Trustees v. Bootlecum-Linacre, L. R. 2 Q. B. 4; 7 B. & S. 348; Cory v. Bristow, 2 App. Cas. H. L. 262. Rex v. Landulph, 1 Mod. & Rob. 393, seems to apply to parishes bordering on private

streams.

5 Post, c. 3.

See Regina v. Keyn, 2 Ex. D. 63. 741 & 42 Vict. c. 73, entitled The Territorial Waters Act. In the House of Lords, the Lord Chancellor (Lord Cairns), in duscussing the proposed legislation, said: "The jurisdiction to which he had to call attention was

§ 16. The effect of legislation relating to territorial waters has also been brought in question. In Regina v. Keyn,1 the

not over rivers, bays, or harbours, because in respect of that no controversy had ever arisen, but the jurisdiction over the territorial waters in that belt or zone of the high seas which more or less surrounded the shores of the empire. This, at first sight, would appear to be a question of law. No doubt it was a question of law, but he rather thought of that which had been described as the first law of nature the law of self-preservation. It was necessary, to some extent and in some measure, that there should be a territorial jurisdiction over the high seas surrounding the seaboard. No empire which had a seaboard could be allowed to remain without a jurisdiction of that kind. If in the case of such an empire it was held that the jurisdiction of the kingdom ended with the dry land, the consequence would be that the subjects of that kingdom in the presence of foreigners would be absolutely without defence from the moment they entered the sea for the purpose of bathing, or fishing, or for any other purpose. Not only so, but when on dry land they would be without a protection, because if no jurisdiction from the land extended to the sea surrounding the seaboard, people from all parts of the world might come to the part of the high sea contiguous to the land and resort to practices which might be of the most serious character to people on shore. So, again, in the case of war, hostilities carried on by belligerents outside the shore might expose a neutral power to the greatest danger. It might be asked whether the question was not solved, so far, at all events, as to the low-water mark to which unquestionably the territorial jurisdiction extended. With regard to the low

[ocr errors]

water mark, it must be remembered
that there were parts of the coasts
where there were considerable inter-
vals between high and low-water
marks, and also there were in the
kingdom, as their lordships knew,
many places where the sea came so
close to the clifts that there was abso-
lutely no horizontal interval between
high and low-water mark. It had
been suggested, or might be suggested,
that if the jurisdiction of this country
extended over the part of the high
seas immediately adjoining the shore,
inasmuch as the right of passage over
that part was allowed to foreign ships,
it would be unfair to claim such juris-
diction as against them.
He was
quite willing to concede the right of
passage contended for, but he had
imagined that it was to be conceded
on this footing and this fooung only

that those who availed themselves of the rights of passage should not expose themselves to any complaint of a violation of the rights of those by whom the right of passage was conceded. In truth, any such exemption would apply to the case of foreign ships coming into one of our bays." With respect to the decision in Regina v. Keyn, the Lord Chancellor said: "One of the learned judges, for whom they all had the greatest respect, and whose judgment, from his experience in criminal cases, was of the greatest weight - Mr. Justice Lush-stated that though he concurred with the Lord Chief Justice in that learned judge's view of the case, yet he wished to guard himself in this particular case with respect to the limits of the high seas." He then quoted the passage in the opinion of Lush, J., in which that judge declined to adopt any expressions implying a doubt as to the competency of Par12 Ex. D. C3.

« ՆախորդըՇարունակել »