ERRATA. Page 12. For "56 & 57 Vict. c. 53" read “56 & 57 Vict. c. 17." 18, note (2). For "R. v. Clark, 12 Moo, 615" read “12 Mod. 615. 42, note (1). For "South Eastern Railway Co. v. Dorling" read" Eastern Counties Railway v. Dorling." For "Reg. v. Montague" read "Rex v. Montague." 82, note (10). For For For 178, note (1). 391, note (2). 3 H. & C. 901" read “3 H. & N. 901.” 66 For “ Spiker v. Banbury” read “ Spokes v. Banbury.” 411, line 2 from end of page. For "40 & 41 Vict. c. 16, s. 4," read “ 57 & 58 Vict. c. 60, ss. 530-534." 411, note (9). For "An Act," etc., read "Repealing 40 & 41 Vict. c. 16, an Act," etc. 412, line 4 from top of page. For "sect. 5" read “sect. 531 (1)"; and on line 7 from top of page, for "sect. 7" read “sect. 533." 464, note (3). 598, note (3). 620, note (2). Insert " R. v. Bristol Dock Co." before "6 B. & C. 181." For "R. v. St. George the Martyr" read" Reg. v. St. George the Martyr." 636, note (3). For "R. v. Adderbury East" read "Reg. v. Adderbury East, 1 Dav. & M. 324.” THE LAW RELATING TO WATERS. CHAPTER I. OF THE SEA, AND RIGHTS THEREIN. The High Seas. THE high seas include the whole of the seas below low water Definition. mark and outside the body of a county.1 The realm of England only extends to low water mark, and all beyond is the high seas. The reason of the thing, the preponderance of authority, and Property in 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 1 As to this see Reg. v. Keyn, 2 Ex. Div. 63,46 L.J., M.C. 17, see post; see also Leigh v. Burley, Ow. 122, per Lord Coke, C. J. 2 It seems certainly to have been the general opinion of writers on international law that the territory of a State extends to the distance of three miles or more, or the distance of a cannon shot, seaward from low water mark; but the case of Reg. v. Keyn, 2 Ex. Div. 63, which will be noticed later, establishes the proposition stated in the text, Cockburn, C. J., remarking that writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be ex- 3 Phillimore's International Law, vol. Navigation appropriation of certain portions of the sea for fishing and navigation by non user.1 The free navigation, commerce, and fishery in the high seas is therefore the common right of all mankind; 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 unoccupied 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 for complaint as inconsistent with international rights, might, if the case arose, be deserving of serious consideration.+ The high seas, as has been said, are open to all the 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.5 The English Court of the Admiralty has from the earliest times exercised criminal jurisdiction over English ships on the high 1 Vattel, Droit des Gens, t. 1, c. xxiii. 2 Wheaton's International Law, by Boyd, p. 251. 3 Ibid. p. 220. 4 Cockburn, C. J., Reg. v. Keyn, 2 Ex. Div. p. 198. 5 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. As to "Navigation" see post, Chap. VII. seas all over the world. By stat. 15 Ric. II. c. 3, it 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. 1894, s. 688. Although the laws of trade and navigation cannot affect Merchant foreigners beyond the territorial jurisdiction of a State so as to Shipping Act, render them criminally liable to those laws, the English legislature has asserted a certain dominion over foreign ships by sect. 688 of the Merchant Shipping Act, 1894, 57 & 58 Viet. c. 60. This section provides that 66 “(1) Whenever any injury has in any part of the world been caused to any property belonging to her Majesty or any of her Majesty's subjects by a foreign ship, and at any time thereafter that ship is found in any port or river of the United Kingdom, " or within three miles of the coast thereof, a judge of record in the "United Kingdom (and in Scotland the Court of Session and also "the sheriff of the county within whose jurisdiction the ship "may be) may, upon its being shown to him by any person "applying summarily that the injury was probably caused by "misconduct or want of skill of the master or mariners of the 66 66 ship, issue an order directed to any officer of customs or other “officer named by the judge, Court, or sheriff, requiring him to detain the ship until such time as the owner, master or consignee thereof has made satisfaction in respect of the injury, or 'has given security, to be approved by the judge, Court, or · sheriff, to abide the event of any action, suit or other legal “proceeding that may be instituted in respect of the injury, and "to pay all costs and damages that may be awarded thereon; and any officer of customs or other officer to whom the order is directed shall detain the ship accordingly. 64 66 1 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, 19 L. T. 400; Reg. v. Lesley, Bell, Cr. C. 220. 2 The remedy given by the similar section of the Act of 1854 is confined to cases of damage to property and does not ex tend to injury to the person. (Harris v. lower to ship that has occasioned arrest foreign damage. |