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the right of the crown of England to these waters, insisting that the title to the sea and to the fundus maris, or bed of the sea — tam aquae quam soli — was in the king.i This is the doctrine of the ancient municipal law of England, under which the Crown had a property in the adjacent seas both as against foreign nations and its own subjects.2 Under the civil law, the sea was common property, and the seashore was classed by different writers among the res communes, or among the res publicae, as being either common property or the property of the state.3 There was here no exclusive or beneficial interest in the sovereign, but so far as private property is concerned, the sea and its shores were considered to be res nullius.' By the Roman law, and by the ancient common law, as stated by Bracton, occupaney was the source of title to the sea and the seashore, and pearls, gems, and other things found there, as well as islands which spring up in the
contended for the fullest exercise of dominion over the British seas, both as to the passage through and fishing in them; while Sir Philip Medows suggested more confined rights, as to exclude all foreign ships of war from passing upon any of the seas of England without special lijense, to have the sole marine jurisdiction within those seas, and also an appropriate fishery. Woolrych on Waters, 5; Selden, Mare Clausum, lib. 1, c. 26. Observations concerning the Dominion and Sovereignty of the Seas, by Sir Plulip Medows (1689); Justice's Sea Laws, art. 1, pt. 1; Co. Litt. 107 6, 260 a, note 1, and Hargrave's notes; Hall on the Seashore (2d ed.). 1, 2; Jerwood on the Seashore, 13; Chitty on the Prerogative, 142, 173, 206.
i Selden, Mare Clausum, c. 22, 24; Bacon's Abv. tit. Prerogative, B. 3; Hall on the Seashore (2d ed.),2; Jerwood on the Seashore, 13; Co. Litt. 107 a, 200 a, and note* 4 Inst. 00; 2 Roll. Abv. 100, 170; Royai Fishery of the Banne, Sir John Davies, 140; Sir John Constable's Case, 3 Lcon. 71, 73; Staunford's Abv.; Life of Sir Leoline Jenkins, vol. 2, p. 732; Sir Plulip
Medow's Observations; Justice's Sea
s Ibid. Lord Hale says: "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 bjdy of any county or not. This is abundantly proved by that learned treatise of Master Selden called Mare Clausum; and therefore I shall say nothing therein, but refer the reader thithev." De Jure Maris, c. 4: liargrave's Law Tracts, 10. Lord Hale refers frequently in the same treatise to "the property and jurisdiction of the king of England in the narrow seas." See Hargrave's Law Tracts, 31, 32, 41, 43.
3 The seashore was classed among things common by Justinian (I. 2, 1, 1); but Celsus says (D. 43, 8, 3) that it belonged to the state. See Mackenzie's Roman Law, 152 ; Goudsmit's Roman Law, 113, note.
4 Taylor's Summary of the Civil Law, 471; Inst. lib. II. tit. 1, §§ 1, 2, 5; Dig. lib. 43, tit. 12-14; Bracton, lib. I. c. 12, fol. 7, 8; lib. II. fol. 7. § 5; 2 Domat, Civil Law, vol. 1,1, tit « « t
sea, and derelict goods, belonged to the finder or first occu.. pant.i The rule of the modern common law, whereby the Iring has a private interest, apart from the ownership of the adjoining lands, in those tide waters which are within the territory of England, appears to be connected historically with the above claim of sovereignty over the narrow seas, and to be derived therefrom.2
§ 4. By the present law of England, the Crown has the right of property in the arms and inlets of the sea within the realm, if not in the sea itself.3 This right includes the bed of all tide waters which are or may be within the counties.4 The strip of land along the coast which is daily covered and left bare by the tide, and is called the shore,6 is a part of the county when the tide is out and a part of the sea when the tide is in.6 There is here divimm imperium between the
i Inst. II. 1, § 18; Dig. XLI. 1, § 7; 1 Twiss's Bracton,08; Greene's Roman Law (3d ed.), 74; Howe v. Stowell, Aleock & Nap. 348, 358.
* See post, § 19. England's claim of exclusive jurisdiction over all persons navigating the British seas appears to have been very ancient. These seas, says Sir Travers Twiss, under the name of "quatuor maria," are thrice mentioned by Bractou and distinctly designated as "les quatre mers d'Angleterre" in four different places in the Domus Day of Gippeswich. Law Mag. & Rev. 4th series, vol. 2, pp. 150, 151. While Bracton, writing in the thirteenth century upon the laws of England, thus speaks of the four sea?, he makes no mention of any peculiar rights of property possessed by the Crown in them. He follows the civil law, and says that t!ie sea and its shores are common property. Bk. I. c. 12, fol. 7, 8. This i,as a tendeney to show that the thcory »f jurisdiction preceded that of property. Sir Travers Twiss observes, in the article above referred to (pp. 155, 100): "The claim to the lordship of
the 'narrow sea,' which the student (Doctor and Student,,270) asserts for the kings of England, cannot be traced so far back as their claim to the lordship of 'the four seas,' unless upon the principle that omne majus conlinel in se minus. Nevertheless, the lordship of 'the narrow sea,' as asserted by the Commons of England in the reign of Henry V., rested on a more solid pretext of right than the lordship of ' the four seas.' It rested on a principle of public law, which holds good in the present day in respect of the stream of navigable rivers, namely, that the kings of England, being in physical possession of both shores of the British Channel, were in juridical possession of the waters contained between those shores. . . . The jurisdiction of the Admiralty, on the other hand, rests upon juridical principles totally distinct from those of territorial sovereignty. It was originally a personal jurisdiction."
3 Post, §§ 5-10.
4 Rcgina v. Keyn, 2 Ex. D. 03.
6 See next note.
courts of common law, whose jurisdiction is limited by the boundaries of counties, and the courts of admiralty which have jurisdiction of questions arising upon the sea, — the first having jurisdiction at low tide and the latter at high tide.1 The seashore is thus, during parts of each day, within the limits of the adjacent county, and, as far as the ordinary high-water mark, it is the property of the Crown.2 Rivers and parts of rivers, in which the tide ebbs and Hows, are also within the body of the county, although the admiralty may also have jurisdiction in them, and the soil of such rivers, so far as the tide reaches inland and up their shores,
Pipon, 1 Knapp, 60; Attorney General r. Tomline, 12 Ch. D. 214; 5 Com. Dig. 102; Calmady v. Rowe, 6 C. B. 861, 878; 2 Dane Abr. 094 ; Commonwealth v. Alger, 7 Cush. 53; Weston t\ Sampson, 8 Cush. 347; Commonwealth r. Roxbury, 9 Gray, 451, 482; 3 Kent Com. 427, 431; Providence Steam Engine Co. v.Providence Steamship Co., 12 R. I. 348; Pollard p. Hagan, 3 How. (U. S.) 212; Goodtitlc v. Kibbe, 9 Bow. (U. S.) 471; State v. Sargent, 45 Conn. 358; Bell v. Gough, 21 N. J. L. 156; 22 Id. 441; 23 Id. 624; Stevens v. Patcrson Railroad Co., 37 N.J. L. 340; Galveston i\ Menard, 23 Texas, 349; Teschemacker v. Thompson, 18 Cal. 11; People r. Davidson, 30 Cal. 379.
The main or high sea begins at low water-mark on the external coast. United States v. Wiltberger, 5 Wheat. 70, 94; United States v. Pirates, 5 Wheat. 184, 200; De Lovio v. Boit, 2 Gall. 398,428; United States v. Hamilton, 1 Mason, 152; The Abby, 1 Mason, 300 ;' United States v. Grush, 5 Mason, 290; United States v. Robinson, 4 Mason, 307; United States v. Sea-grist, 4 Blatch. 420; United States i'. Wilson, 3 Blatch. 435; Johnson v. Twenty-one Bales, 2 Paine, 001; United States v. Smith, 3 Wash. C. C. 78, n.; The Martha Anne, Olcott, 18 ; Miller's Case, Brown Adm. 156; 1 Black. Com. 110.
appertains to the Crown.i The territorial jurisdiction of a State now extends seawards to the distance of three geographical miles;2 and where bays and inlets are formed by the indentations of the coast, even though they are somewhat broader than the double range of cannon, this external limit of jurisdiction is determined by measuring seaward from a straight line drawn from one enclosing headland to the other.3 Such inlets and branches of the
as to render the county chargeable with the expense of burying persons whose bodies are cast ashore from a wreck occurring near such spot. Church Wardens v. Robertson, 44 L. T. N. s. 747.
* Bynkershock, De Dominio Maris, c. 2, p. 257; Pando, Elem. del Dev. Int. 155; Loccenius, De Jure Maritimo, c. 4; Heincccius, lib. 2, c. 3, § 12; Grotius, De Jure Belli, lib. 2, c. 3, § 13; Vattel, Droit des Gens, lib. 1, c. 23, §§ 288-295; De Ray venal, Liberte des Mers, vol. 1, p. 212; Wolff, Jus Gentium, §§ 128-132; Azuni, vol. 1, 67, 08; Ortolan, Diplom. de la Mer, vol. 1, bk. 2, c. 8; Hautfeuille, Hist, du Droit Mar, 197; Marten, Precis du Droit, bk. 2, c. 1, §§ 40, 41, and bk. 4, c. 4; Heffter, Pub. Int. Law, § 75; 1 Phillimore's Int. Law, c. 4, § 154, and c. 8, § 190; Lawrence's Wheaton's Int. Law, pt. II. c. 4, §§ 0-10; 1 Kent Com. 28; Manning's Law of Nations (Amos'ed.), 118, 119; Regina v. Keyn, 2 Ex. D. 03; The Maria, 1 C. Rob. 352; The Twee Gebroeders, 3 C. Rob. 102; The Annapolis, Lush. Adm. 295; The Leda, Swa. Adm. 40; Regina v. 49 Casks of Brandy, 3 Hagg. Adm. 247 ; The Saxonia, 15 Moore, P. C. 202; Gammel v. Commissioners of Woods, 3 Macq. 419, 465; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192; 13 C. B. N. S. 853, and 11 Id. 387; General Iron Screw Co. v. Schurmanns, 1 J. & H. 180; Church v. Hubbard, 2 Cranch, 187; United States v. Kessler, Bald. 15.
3 Post, § 5; Regina v. Cunningham, sea, when sufficiently narrow, and within this line of jurisdiction, ma}- be within the body of the adjacent county.1 When shut in and protected by the land, they form harbors and havens. They may also be established as ports. A harbor or haven is a place for the shelter and safe riding of ships; a port is a haven and something more.2 How
Bell, C. C. 86; Phillimore's Int. Law, pt. HI. c. 8; Lawrence's Wheaton's Int. Law, pt. II. c. 4, § 6; Manning's Law of Nations, 120; 1 Twiss, Law of Nations, c. 10; Martens, Precis du Droit, § 40; Ortolan, Diploin. de la Mer, bk. 1, c. 2, and bk. 2, c. 7; 1 De Cussy, Droit Marit., tit. 2, § 40; Kliiber, Droit des Gens, § 130.
1 Hale, De Jure Maris, e. 4; 4 Co. Inst. 140; Fitzherbert's Abr. 309; Regina v. Cunningham, Bell, C. C. 813; Direct U. S. Cable Co. v. AngloAmerican Telegraph Co., 2 App. Cas. 394, 419; Ins. Co. v. Dunham, 11 Wall. 1; The Fame, 3 Mason, 147; De Lovio v. Boit, 2 Gall. 398; 1 Kent Com. 30; post, § .j.
•■The following are among the more important passages upon this subject, in Hale's De Portibus Maris: "A haven is a place of a large receipt and safe riding of ships, so situate and secured by the land circumjacent, that the vessels thereby ride and anchor safely, and are protected by the adjacent land from dangerous or violent winds; as Milford haven, Plymouth haven, and the like. And these are some larger, some narrower. The smaller are sometimes made or at least helped by art; the greater are made only by nature. A port is an haven, and somewhat more. 1st, it is a place for arriving and unlading of ships or vessels. 2nd, it hath a superinduction of a civil signature upon it — somewhat of franchise and privilege, as shall be shown. 3rd, it hath a ville or city or borough, that is the cajiut porttts, for the receipt of mariners mid merchants, and the securing and vending of their
goods, and victualling their ships. So that a port is quid aggregatum, consisting of somewhat that is natural, viz., an access of the sea, whereby ships may conveniently come, safe situation against winds, where they may safely lie, and a good shore where they may well unlade; something that is artificial, as keys and wharfs and cranes, and warehouses and houses of common receipt; and something that is civil, viz., privileges and franchises, jus applicandi, jut mercati, and divers other additaments given to it by civil authority. A port of the sea includes more than the bare place where the ships unlade, and sometimes extends many miles; as the port of London anciently extended to Greenwich, in the time of King Edward the First. ... A creek is of two kinds; viz., creaks of the sea, and creeks of ports. The former sort are such little inlets of the sea, whether within the precinct or extent of a port or without, which are narrow little passages, and have shore of either side of them. The latter, viz., creeks of ports, are by a kind of civil denomination such. They are such, that though, possibly, for their extent and situation they might be ports, yet they arc either members of. Op dependent upon other ports. And it began thus: The king could not conveniently have a customer and comptroller in every port and haven; but these custom officers were fixed at some convenient port; and the smaller adjacent ports became, by that means, creeks, or appendants of that where these custom officers were placed." Hale, De Portibus Maris,