provision of the Merchant Shipping Act,1 authorizing the detention of a foreign vessel which had caused injury to the liament to legislate for these waters, and proceeded: "As he understood these words, if Sir Robert Lush had found that in the particular place Parliament had stepped in and said that portion of the water was part of the United Kingdom, he would have been of opinion that the Crown had territorial jurisdiction over it, and the conviction ought not to quashed. It was fortunate for the prisoner in the 'Franconia' case, though not fortunate for the vindication of the law, that Mr. Justice Lush was under the impression that that had not been done which really had been done. It appeared that in an Act of 1848 for the regulation of customs there was a provision authorizing the Lords of the Treasury to establish ports in many places where ports were required, and to define their limits. Under that provision the Lords of the Treasury issued a warrant, which was inserted in the London Gazette of the 3rd of March, 1848. In that warrant were these paragraphs: That the limits of the port of Dover shall commence at St. Margaret's Bay aforesaid, and continue along the said coast of Kent to Cape Point in the said county. That the limits of the port of Folkestone shall commence at Cape Point aforesaid, and continue along the coast to Dungeness, in the said county.' 'And we, the said Commissioners of Her Majesty's Treasury, do further declare that the limits seaward of the said ports shall extend to a distance of three miles from low-water mark, out to sea, and that the limits of such ports shall include all islands, bays, harbours, rivers, and creeks within the same respectively.' So that under Parliamentary powers the proper authorities had declared, long before the 'Franconia' case, that the limits of the Port of Dover extended three miles out to sea. He understood the view of the majority of the judges to be this, there was one jurisdiction by land and the other by sea; that the jurisdiction by land was one limited by the limits of counties, taking into the county the low-water mark, and the harbours and rivers within the county; and the jurisdiction by sea, the old jurisdiction of the Lord High Admiral now exercised by the Central Criminal Court; that the jurisdiction of the Lord High Admiral extended to the high seas, but the persons over whom it was exercised must be British subjects, not foreigners; and that the Central Criminal Court had no jurisdiction over the persons of foreigners beyond the lowwater mark. That he understood to be the common ground on which the majority of the judges acted in quashing the conviction. And taking that as the ratio decidendi of the judges in a decision which he accepted, it would at first sight appear that there was nothing more for him to do than to ask the favorable consideration of their lordships for a Bill to amend the law; but there fell some observations from Sir Robert Phillimore, the Lord Chief Baron, and the. Lord Chief Justice, whose judgment was the most elaborate, and might be regarded as the leading judgment of the majority, and which contained a principle that seemed to challenge the right of Parliament to legislate on this subject. Expressions of the Lord Chief Justice would certainly seem to imply that we could not legislate with respect to the high seas even within the limits of the belt or zone to which he had referred without the consent of foreign nations, or until after communication with foreign 1 17 & 18 Vict. c. 104, § 527. property of English subjects in any part of the world, if at any time thereafter such ship was found in any port or river of the United Kingdom, or within three miles of the coast, was considered insufficient to include the three-mile belt within the realm, and Cockburn, C. J., doubted whether it would apply to a ship on a foreign voyage. In 1794, Congress recognized the three-mile rule by authorizing the district courts to take cognizance of complaints in cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof.1 In the case of the Brig Ann,2 a seizure was made off Newburyport, and within three miles of the shore, for violation of the embargo acts. Story, J., held that, as a principle of public law, the waters within the three-mile belt form part of the nation's territory;3 and that, as the acts in question extended to all places within the jurisdiction of the United States, these waters, as well as ports and rivers, were within the operation of the statutes. In Dunham v. Lamphere,1 Shaw, C. J., expressed the opinion that, by virtue of a statute of Massachusetts, which prohibited fishing with a seine within one mile of the shores of Nantucket and other small islands, that extent of sea was within the territorial limits of the State. It is now provided by statute, in this and other .nations. This was a very serious question. If the judgments of those learned judges amounted, as they were supposed to do, to a proposition of that kind, of course Parliament would be exceeding its powers if it entered into legislation applying to that belt or zone with the view of making foreigners answerable to our law. But he would ask their lordships to consider whether there was any foundation for that principle. He ventured to think there was not, and he thought it would be a very serious thing if there were." London Times, Feb. 15, 1878, reprinted in 2 Halleck's Int. Law (Baker's ed.), 559. Blackpool Pier v. Fylde, 46 L. J. M. C. 189. On March 30, 1882, in reply 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 ' 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 v. 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. 1 Hale, De Jure Maris, c. 6; Hargrave, 36. fishery. In the case of Attorney General v. London,1 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 H. L. Cas. 440. 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. |