The Law relating to eaters.

CHAPTER I.

OF THE SEA, AND RIGHTS THEREIN.

The High Seas.

THE high seas include the whole of the seas below low Definition. water mark and outside the body of a county.'

The realm of England only extends to low water mark,

and all beyond is the high seas.2

The reason of the thing, the preponderance of authority, Property in and the practice of nations, have decided that the main ocean, inasmuch as it is the necessary highway of all nations, and is from its nature incapable of being continuously possessed, cannot be the property of any one

State. It is possible, however, that a nation may acquire exclusive right of navigation and fishing of the main ocean as against another nation, by virtue of the specific provisions of a treaty; for it is competent to a nation to renounce a portion of its rights; and there have been instances of such renunciations both in ancient and modern times. It would appear also that a nation may give a tacit consent to the appropriation of certain portions of the sea for fishing and navigation by non user.2

The free navigation, commerce, and fishery in the high seas is therefore the common right of all mankind;3 and as a physical necessity, the soil of the bed of the sea can be the exclusive property of no one individual or nation, except in those rare cases where a portion of the bed of the sea has been beneficially occupied for a sufficient time by any one nation to give a prescriptive right to that portion, by the acquiescence of the other nations. The writers on international law have questioned how far that particular species of presumption arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation; but the constant and approved practice of nations shows that by whatever name it is called, the uninterrupted possession of territory or other property for a certain length of time by a State excludes the claim of every other. It would also appear, that when the sea or the bed on which it rests can be physically occupied permanently-as by the erection of piers, harbours, breakwaters or forts-it may be the subject of occupation, the same as an occupied territory, independently of prescription. In point of fact, such encroachments are generally made for the benefit of the navigation, and are therefore readily acquiesced in. But whether, if an encroachment in the sea were such as to obstruct the navigation to the ships of other nations, it would not amount to just cause 3 Wheaton's International Law, by Boyd, p. 251.

1 Phillimore's International Law, vol. 1, pp. 210, 211.

2 Vattel, Droit des Gens, t. 1, c. xxiii.

Ibid. p. 220.

for complaint as inconsistent with international rights, might, if the case arose, be deserving of serious consideration.1

The high seas, as has been said, are open to all the Navigation. world, and the ships of every nation are free to navigate them. The ships of all nations while so navigating the high seas are only subject to the laws of their own country; and no one nation has the right to exercise civil or criminal jurisdiction over the ships of other nations while passing over the high seas between one foreign port and another.2 The English Court of the Admiralty has from the earliest times exercised criminal jurisdiction over English ships on

the high seas all over the world. By stat. 3 Rie. H., it 15 Rec. c.3 was enacted that the admiral should have no jurisdiction within the body of counties either by land or sea, except for mayhem and murder done in great ships being and hovering in estuaries and mouths of great rivers below the bridges, where he should have a concurrent jurisdiction with the Courts of common law. Upon this footing. the criminal law has remained ever since, the jurisdiction of the admiral having been transferred to the Central Criminal Court by 4 & 5 Will. IV. c. 36.

1864, s. 527.

Although the laws of trade and navigation cannot affect Merchant Shipping Act, foreigners beyond the territorial jurisdiction of a State so as to render them criminally liable to those laws, the English legislature has asserted a certain dominion over foreign ships by the 527th section of the Merchant Shipping Act, 17 & 18 Vict. c. 104. This section provides that "Whenever any injury has in any part of the world been "caused to any property belonging to her Majesty, or to any of her Majesty's subjects, by any foreign ship, if "at any time thereafter such ship is found in any port or

66

1 Cockburn, C. J., Reg. v. Keyn, 2 Ex. Div. p. 198.

2 Reg. v. Keyn, 2 Ex. Div., per Kelly, C. B., p. 217; The Vigilantia, 1 C. Rob. 1; The Vrow Anna Catherina, 5 C. Rob. 161; The Success, 1 Dodds, Ad. 131.

3 Foreigners on board English ships are subject to English law. See Reg. v. Sattler, Dears. & B., Cr. C. 525; Reg. v. Anderson, L. R., 1 Cr. C. 161; Reg. v. Lesley, Bell, Cr. C. 220.

Pirates.

Tolls.

Fishery.

"river of the United Kingdom, or within three miles of "the coast, if it be shown that such injury was probably

caused by misconduct or want of skill of the master or "mariners, it may be detained until satisfaction be made "for the injury, or security be given to abide the event of "any action or suit." Cockburn, C. J., doubts whether this section would apply to a ship on a foreign voyage, as the authority is to detain and not to seize, and would seem applicable only to a vessel voluntarily seeking our waters otherwise than for the purpose of passage, and so bringing itself within our jurisdiction.1

Pirates, being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high sea by the armed vessels of any particular State, and brought within its territorial jurisdiction for trial at its tribunals.2

The sea, being the great highway of the world, no tolls are demandable for vessels navigating it. This freedom is, however, subject to exceptions arising from benefits done to the community at large which form a just consideration for a toll,-such as the formation of ports, harbours, and the like, and the maintenance of lights, buoys and beacons. "If," says Hale, C. J., "any man will pre"scribe for a toll upon the sea, he must allege good con"sideration; because, by Magna Charta and other statutes,

66

3

every man has a right to go and come upon the sea "without impediment." An Act of Parliament will, of course, be effectual to enforce a toll anywhere within its operation. The right of navigation includes the right of anchoring; and no tolls can be taken for anchorage unless in a port or harbour."

There is no limit imposed by the common law or by

1 Reg. v. Keyn, 2 Ex. Div. p. 218. 2 Wheaton's International Law, p. 168. As to "Navigation," see more fully Chap. VII.

3 Hale de Jure Maris, Harg. Tr. 51; Gann v. Free Fishers of Whit

stable, 11 H. L. 193.

4 1 Mod. 105.

5 Woolrych on Waters, p. 299. Gann v. Free Fishers of Whitstable, supra. As to tolls, see further p. 45, post, and Chap. VIII.

international law, either as to the description of fish that may be caught on the high seas, or the means of catching them, or the season during which they may be caught. But it would appear that a nation may bind itself by treaty, or, perhaps, even by non user, from participating in this common right at certain places in favour of other nations.1 Where this right is exercised by several nations, the customs of other nations must be respected, even in places which are free to all the world.2

3

waters.

Although, as has been stated, the realm of England only Territorial extends to low water mark, and all beyond is high seas, Jurisdiction yet the common consent of civilized independent States, of the Crown. which constitutes international law, has undoubtedly appropriated a certain portion of the high seas washing the shore of each State to that State for the fuller enjoyment and protection of its rights. The distance to which these so-called territorial waters extend appears generally to be fixed at three nautical miles; but this distance is not absolute, and is liable to be altered by the provisions of particular treaties. The extravagant doctrine laid down by Selden in his Mare clausum, and followed by Hale de Jure Maris, that the four seas washing the coasts of England were in the absolute dominion and ownership of the sovereign of England, has long ago given way to the influence of reason and common sense; but it was up to the decision of the recent case, Reg. v. Keyn, a vexata quæstio, giving rise to much difference of opinion, whether the dominion which is admitted to exist by the sovereign of England over such territorial waters is an absolute dominion, so as to constitute such territorial waters part of the realm of England, and vest the property of the soil below the water in the Crown, or whether it is a more limited dominion dependent not on original or inherent

1 Phillimore's International Law, vol. 1, p. 213; Vattel, t. 1, 1. 1, c. xxiii., sec. 286.

2

Fennings and others v. Lord

Granville, 1 Taunt. 248. As to
"Fishery," see further Chap. VI.
3 Phillimore's International Law,
vol. 1, p. 237.