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THE LAW OF WATERS.
OF PROPERTY IN TIDE "WATERS AT COMMON LAW.
1. Property in the open sea.
2, 3. Rights in territorial waters.
4, 6. The Crown's property in tide waters within the realm.
6. What this includes.
7-9. The seaward limit of national property and jurisdiction.
10. Right to minerals beneath the sea and seashore.
11, 12. Regina v. Keyn.
13, 14. The authority of this decision.
15, 10. Effect.of legislation respecting territorial waters.
17, 18. The nature of the Crown's title. The jus publicum and the jus privatum.
19. Foundation of the doctrine of a jus privatum.
20. What are included within the public rights of navigation and fishery.
21. Purprestures and nuisances.
22, 23. Prescriptive rights against the Crown.
24, 25. The rights of the public with respect to sand, gravel, and sea-weed.
27. Limits of the shore.
28. Words synonymous with "shore."
29. Meaning of these terms in legal instruments.
§ 1 The sea is serviceable for important uses, especially for navigation and fishery; but it is incapable, from its nature, of permanent appropriation and continuous occupation. It thus remains without an owner, as a barren and unappropriated waste. When articles of value are taken from the sea, they belong to the finder, inasmuch as there is no title which is superior to his possession. Between different claimants what constitutes such possession may depend upon usage. In the whale fisheries, it is a valid usage that the boat first striking a whale shall be entitled to the fish.1 But, where no special custom of fishery was proved, it was held that the plaintiff, who while fishing had nearly encompassed the fish with his net, could not recover from the defendant for vowing his boat to the opening, thereby disturbing the fish and preventing their capture.2 The tests for determining the ownership of such parts of the sea as can be appropriated, or of islands arising therefrom or newly discovered, are occupaney, discovery, or conquest.3 Those, for instance, who expend money in mining guano upon a newly discovered island and convey it to the shore, are entitled to protection in the enjoyment of the property thus acquired.4 Ships upon the ocean continue subject to the law of the flag, making those on board amenable to the laws of the nation to which the vessel is accredited.6 A
i Fennings v. Grenville, 1 Taunt. 241; Littledale v. Smith, Id. 243, note; Aberdeen Arctic Co. v. Sutter, 4 M.icq. 11. L. Cas. 355; Young v. Hitchens, i5 Q. B. 606; Stevens v. Jeacocke, 11 Q. B. 741; Hogarth v. Jackson, M. & M. 58; Skinner v. Chapman, Id. 59, note; Tuber v. Jenny, 1 Sprague, 315; Bartlett v. Budd, 1 Lowell, 223; Bourne :>. Ashley, 1 Lowell, 27 ; Swift v. Gifford, 2 Lowell, 110. Fish not reclaimed or confined are not the subject of larceny. Rex v. Carrodice, 2 liuss. 1199; State v. Krider, 78 N. C. 4S1. A sale of fish afterwards to be caught in the sea is invalid. Low v. Pew, 108 Mass. 347.
'Young v. Kitchens, 6 Q. B. 606.
nation's jurisdiction extends to the punishment of its citizens for offences committed on deserted islands or an uninhabited coast;i 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 exclusive dominion of any nation, and cannot be apportioned by municipal law.1
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; Bluntsehli, § 317; Parker v. Byrnes, 1 Lowell, 539; Johnson v. 21 Bales, 2 Paine, 601; United States v. Bennett, 3 Hughes, 400; Calahan v. Babeock, 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, 10 Wall. 522; 9 R. I. 419; Sherlock v. Ailing, 93 U. S. 99; McDonald v. Mallory, 77 N. Y. 546.
i United States v. Smiley, 6 Sawyer, 640.
>Ex parte McNeil, 13 Wall. 230; The Scotia, 14 Wall. 170, 187; The Continental, 14 Wall. 345; Wilson v. McXamee, 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, Mv. Justice Strong said: "Undoubtedly, no single nation can change the law of the 6ea. 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
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, whiih 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, hut 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 Hanseatic League, and of parts of the 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, ex press or understood, of maritime na tions? When, therefore, we fmd such rules of navigation as are mentioned in the British orders in council of Junuary 9, 1803, and in our Act of Congress of 1864, accepted as obligatory rules by more than thirty of the
§ 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.* 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.4
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 libelants 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 wc 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, 07, § 1; 1 Phil. Int. Law, c. 6.
* Grotius, De Jure Belli, lib. 2, cap. 2, § IT; cap. 8, §§ 13, 2; Loccenius, De Jure Maritimo, c. 4, §§ 5, 6; Puf
§ 3. Amid the diversity of opinions which have prevailed respecting this dominion, claims have heen advanced both as to its extent and character which now seem extravagant.1 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
i In Regina v. Keyn, 2 Ex. D. 63, 170, which is referred to post, §§ 11,12, Cockburn, C. J., thus states some of the views as to the extent of this jurisdiction : "Albericus Gentilis extended it to one hundred miles; Baldua and Bodinus to sixty. Loccenius (De Jure Maritimo, c. 4, § 6) puts it at two days' sail; another writer makes it extend as far as could be seen from the shore. Valin, in his Commentary on the French Ordinances of 1081 (c. 5) would have it reach as far as the bottom could be found with the lead-line, etc."
* Selden's Mare Clausum was published in 1635. The doctrine maintained by Selden, so far at least as there was occasion to assert it in treating of the common law, was accepted by his contemporaries, Bacon, Coke, Hale, and Staunford. See 1 Bacon Abv. 640; Co. Litt. 107; Hale, De Jure Maris, c. 4,6; and Pleas of the Crown. Lord Hale says: "Thekingof England hath the propriety as well as the jurisdiction of the narrow seas; for he is in a capacity of acquiring the narrow and adjacent sea to his dominion by a kind of possession which is not compatible to a subject; and accordingly regularly the king hath that propriety in the sea: but a subject hath not nor indeed cannot have that property in the sea, through a whole tract of it, as the king hath; because without a regular power he cannot possibly possess it. But though a subject cannot acquire the interest of the narrow
seas, yet he may by usage and prescription acquire an interest in so much of the sea as he may reasonably possess, viz. of a districtus maris, a place in the sea between such points, or a particular part contiguous to the shore, or of a port or creck or arm of the sea. These may be possessed by a subject, and prescribed in point of interest both of the water, and the soil itself covered with the water within such a precinct; for these are manoriable, and may be entirely possessed by a subject." De Jure Maris, c.6. And see/Mwf, §§ 21-23. The words "infra quatuor maria" are said to mean, within the kingdom of England, and the dominions of the same kingdom. Co. Litt. 107. The four seas are: 1. The Atlantie, which washes the western shore of Ireland, and which comprises, as it were by way of sulvdivision, the Irish Sea, St. George's Channel, and the Scottish Sea to the north-west; %. The North Sea of the coast of Scotland; 3. The German Ocean on the east; and 4. The British Channel on the south. Co. Litt. 107 (a), note 7. The jurisdiction of the king, as lord and sovereign of the sea, has been defined, with respect to the Channel, to extend between England and France, and to the middle of the sea between England and Spain. Sir John Constable's Case, 3 Leon. 73; 5 Com. Dig. 102. With respect to the western and northern oceans, there was said to be more uncertainty as to the limits of British dominion. Selden