« ՆախորդըՇարունակել »
Maria} It 6eems to admit of little doubt that this celebrated treatise was written by Sir Matthew Hale, and it is uniformly ascribed to him in the decisions of the English and American courts.2 But the reported cases, which came before the English courts in the seventeenth century, tend to show that the doctrine was not then fully recognized;3 and, as the American colonies were settled from England at that time, those cases and the argument of Sergeant Merewether appear to have a significance in this country, where, as will be hereafter seen, the ancient usages of most of the original States allow to the owners of the adjoining lands rights in the soil below the high-water mark of tide waters, which are unknown to the common law of England, and where, in accordance with the dicta of the earlier English decisions,i the view generally accepted has been that the Crown holds this property solely as a trustee for the publie, and cannot, since Magna Charta, convey it to a subject.2
1 In Lord Advocate v. Blantyre, 4 App. Cas. 770, 773, note, Lord Curriehill, Lord Ordinary, said in the court below: "There is no longer any doubt, if such ever existed, that the foreshore of the sea and of navigable rivers, though belonging to the Crown, subject to certain public uses connected with navigation and the like, are nevertheless alienable by the Crown subject to such public uses." In Gann v. Whitstable Free Fishers, 11 C. B. N. s. 387, Erie, C. J., said that there is no rule of law which prevents the Crown from granting to a subject that which is vested in itself.
* See Regina r. Betts, 4 Cox, C. C. 213; Attorney General v. Chambers,
4 De Gex & J. 65, 71; Calmady v. Rowe, 0 Man. G. & S. 878, note; Exeter p. Warren, 5 Q. B. 773, 801; Ipswich Dock v. St. Peter, 7 B. & S. 310, 344; King v. Ward, 4 Ad. & El. 384, 406; King v. Yarborough, 3 B. & C. 91; 2 Bligh, N. S. 147; 1 Dow, N. S. 170; Bolt v. Stennett, 8 T. R. 606; Aldnutt t>. Inglis, 12 East, 527, 537; Attorney General v. St. Auhyn, Wightwick, 262; Murphy v. Ryan, Ir. R. 2 C. L. 143; Blundell v. Catterall,
5 B. & Aid. 268; Ex parte Jennings, 0 Cowen, 530, note; Per Waits, C. J., and Field, J., in Munn v. Illinois, 94 U. S. 113, 126, 149; Per Gray, J., in Nichols v. Boston, 98 Mass. 30, 41, and Haskell v. New Bedford, 108 Mass. 208, 216; Berry v. Snyder, 3 Bush, 266, 275; Phear's Right* of Water, 47, note m; Jerwood on the Seashore, 31, 94, 118. Lord Hale's views appear in his judgment as Chief Justice in Lord Fitzwalter's Cose, 3 Keb. 242; 1 Mod. 105 (s. c. 3 Keb.
459, 465, 485, 619, 555; 2 Lev. 139; 1 Freem. 414), and by his position as cotinsel in Johnson o. Barrett, Aleyii, 10, referred to in the next note. Sir Matthew Hale died in 1076, and the treatise De Jure Maris, though probably written in the earlier part of the seventeenth century, was not published until 1787.
3 Merewether argues that the jus privatum was not acknowledged in the English law prior to the case of Bulstrode v. Hall, Sid. 182, decided in 1603. He refers particularly to Johnton o. Barrett, Aleyn, 10 (1640). This was an action of trespass for carrying away soil and timber, in which it appeared that the bailiff and burgesses of Yarmouth had destroyed a wharf erected in that town. Rolle, the presiding justice, stated that if it were erected between the high and lowwater mark it belonged to the owner of the adjoining land, while Hale, who was counsel in the case, earnestly affirmed that it belonged to the Crown of common right. But it was clearly agreed that if it were erected beneath the low-water mark, it belonged to the king. Merewether argues that Hale would have cited this case in which he was counsel, if he Were the author of the treatise De Jure Maris, or that, the case not being referred to in that treatise, it was decided against his doctrine. Woolrych (on Waters, 20) says of this case that " if it were understood that the soil between high and low-water mark might belong to a subject by grant or prescription, as might well be the fact, and that the soil below low-water mark belonged to the Crown, as being of little or «•
§ 19. Various reasons are assigned for the existence of a jus privatum in the Crown. Under the fiction of the feudal
value as the Subject of a grant, there
268; Somerset v. Fogwell, 5 B. & C.
'Per Kirkpatrickj C. J., in Arnold
L law, by -which all lands in the kingdom were derived from the king as lord paramount, and held by his bounty, the shores and bed of tide waters, having no other acknowledged owner, are said to remain vested in him in all cases where he has not expressly granted them away.1 One writer suggests that at the time of the Norman Conquest, William I., having acquired by confiscation all the estates in England, retained in his own seizin those lands, including the shore, which were not distributed among his followers.2 The Crown's right of private property in tide waters within the realm formed part of the theory of its dominion upon the sea. Lord Hale 3 considers the king's ownership of the shore to be one of the evidences of his ownership of the sea, and Callis says4 that the littus maris, or shore, taketh its name wholly from the sea, as partaking most of its nature, and that, in point of property and ownership, it is the king's as lord of the seas. Blackstone assigns to the king, as lord of the sea, the lands which it leaves when it suddenly recedes.6 So it is said that navigable rivers, so far as the tide ebbs and flows in them, belong
1 In Commonwealth v. Alger, 7 Cush. 53, 90, Shaw, C. J., said: "By the general rule of the common law, all real property capable of use and possession, and having no other acknowledged owner, is, in theory, vested in the king, as the head and sovereign representative of the nation. The sea-shore," &c, "are deemed vested in and held by the king." In a recent case in Rhode Island, Potter, J., said: "It was the policy of the English law, and especially of the feudal system, to consider the king as the original owner of all the lands in the kingdom. Hence he was the owner of all vacant lands, derelict, &c. All was held of him and escheated to him. So he is spoken of as the owner of the shore." Providence SteamEngine Co. r. Providence Steamship Co., 12 R. I. 348, 358. In Attorney General v. Chambers, 4 De Gex, M. & G. 200, Ld. Ch. Cranworth said: '* The principle which gives the shore to the
Crown is that it is land not capable of ordinary cultivation or occupation, and so in the nature of unappropriated soil. Lord Hale gives, as his reason for thinking that lands only covered by the high spring tides do not belong to the Crown, that such lands are for the most part dry and manoriable; and taking this passage as the only authority at all capable of guiding us, the reasonable conclusion is that the Crown's right is limited to land which is, for the most part, not dry or manoriable."
2 Jerwood on the Seashore, 20-29.
3 Dc Jure Maris, c. 4.
4 Callis on Sewers, 54. If the kings of England possessed the sea, "it follows that they possessed the shore as well as the sea, for if they have owned the sea, they have it at high water as well ns low." Jerwood on the Seashore, 10, 20.
4 2 Black. Com. 201.
to the king,1 because they partake of the nature of the sea, which is his proper inheritance, and that he hath the same property in them as in alto mare.2 The doctrine of the Crown's title as universal occupant appears to be at variance with a recent decision in the House of Lords. In that case3 the plaintiff proved, in support of his claim of title to a non-tidal lake, an ancient royal grant, but did not prove the title of the Crown; and although there was no suggestion that the title could be legally vested in any other than the Crown, it was held that it was necessary to prove the grantor's title, as in the case of a private grant, and that there was no presumption in favor of the Crown's title to vacant land like the bed of a lake. Such presumption exists with respect to the shore and the soil under tide waters;1 and if the Crown's private rights in the bed of navigable waters within the realm were originally connected with the obsolete theory of dominion over the narrow seas, it is, perhaps, probable that they now depend upon prescription.2
1 Hale, De Jure Maris, c. 4. "The king hath not only a dominion at sea, but he is 'dominns maris Anglicani'; he is both owner of the sea anil of the soil under the sea. And so it was resolved lately, by my Lord Chief Baron, and the rest of the barons of the Exchequer, in the case of Sutton Marsh (Mich. 13 Car.), that the soil of the land, so far as the sea floweth, is the king's, and the king is seized thereof,y»re coronae." 3 Howell's State Trials, 1023. See also the passage from Shepperd's Grand Abr., ante, § 17, note.
1 Royal Fishery of the Banne, Sir John Davies, 149; Coin. Dig. tit. Prerogative, 1). and Navigation, B.; 2 Roll. Abr. 170; Vin. Abr. 574, B. a. "If a river, so far as there is a flux of the sea, leaves its channel, it belongs to the king; for the English sea and channels belong to the king, and he hath the property in the soil, having never distributed them out among his subjects." Bacon's Abridg. tit. Court of Admiralty, A. and Prerogative, B. 3.
3 Bristow v. Cormican, 3 App. Cas. 641. The plaintiffs in this case had never been in actual possession, but, in support of their claim to a several fishery over the whole of the lake, introduced documentary evidence of title, commencing with a royal grant from Charles II. in 1600, and continued by leases and other documents. The defendants set up a claim of right in favor of and also user by the public. No evidence was given of the Crown's title. The judge at the trial withdrew the case from the jury and directed a verdict for the plaintiffs. The House of Lords
held this to be erroneous, the question being one of fact and not of law. Lord Blackburn said: "It is, however, necessary to decide whether the Crown has of common right a prima facie title to the soil of a lake. I think it has not. I know of no authority for saying it has, and I see no reason why it should have it. Mr. Justice Lawson, in his able opinion, hints at one. 'What ground,' he says (Ir. R. 10 C. L. 418), 'is there for suggesting that the title was not in the Crown? It is not shown, or even suggested, to be in any other, and it could not be in the public." This would be a strong remark if there was any authority for saying that, by the prerogative, the Crown was entitled to all lands to which no one else can show a title. But this is so far from being the case, that, in the only instance in which no one could show a title, I mean that of an estate granted to one for the life of another, where the grantee died leaving the cestui que vie, the law cast the freehold on the first occupant of the land. See Co. Litt. 40. It was never thought that the Crown was entitled in such a case. Those who committed trespasses after the death of the tenant for life, and before any one occupied, did so with impunity, because there was no one entitled to complain of their acts, and it may be that those who fish in Lough Neagli may do so, not of right, yet with impunity, so long as the true owner of the soil either fails to prove his right, or does not choose to interfere. But that does not give any rights to the Crown. The Crown might have had title in many ways, by forfeiture,
§ 20. "All prerogatives," says Bacon,3 " must be for the advantage and good of the people; otherwise they ought not
or escheat, or otherwise. But generally speaking, in order to make such a title in the Crown perfect, there must be office found. And here not only is there no evidence of any office found, but the indenture contains what purports to be a dispensation from the Statute of Henry VI. showing that there was not any office found. I think, therefore, that Mr. Justice Fitzgerald was quite right when he says (Ir.K. 10C.L.422) that 'we must deal with the grants of 1000 and 1001 in the same way as if the grantor was a private individual.'" See, however, Doe r. Kedfern, 1*2 East, 90; 2 Black. Com. 258, 201; Crane v. Boeder, 21 Mich. 24.
1 The right to the soil between high and low-water mark is prima facie in the Crown, and although it may be in a subject according to the terms of the grant, yet the burden is upon those who set up an adverse title. Attorney General v. Richards, 2 Anst. 600; Scratton v. Brown, 4 B. & C. 485; Somerset v. Fogwell, 5 Id.; Dickens v. Shaw, reported in Hall on the Seashore, Appendix, p. 281; Blun
dell ■•. Catterall, 5 B. & Aid. 208; Attorney General v. Parmenter, 10 Price, 378; s. c. nom. Parmenter v. Gibbs, Id. 412; Attorney General v. Burridge, Id. 350; l.opez v. Andrew, 3 Man. & Ryl. 320; Levett v. Wilson, 3 Bing. 115; post, § 27.
* See Chitty on the Prerogative, 142, 200; Sheppard's Grand Abr. pt. 3, p. 40; 1 Molloy, De Jure Marimo (9th ed.), 125, 120. "Every government that is not established by military force, or founded on the express consent of the people, must derive its authority from positive law or from long-continued usage. . . . No one will pretend that any prerogative of the king of England is founded either on military force or on the express consent of the people. Every prerogative of the Crown must, therefore, be derived from statute or from prescription; and, in either case, there must be a legal and established mode of exercising it." Allen on the Prerogative (1st ed.), 100.
3 Bac. Abr. tit. Prerogative, p. 1; Bracton, I. 2, c. 6, $ 7; Id. L 3, t. 1, c. 0; Hale, De Jure Maris, e. 2, pi. :!;