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codes of law, or so made obligatory by the acknowledged customary or common law, of every enlightened nation. Thus, under the jurisprudence of Justinian :
Et quidem naturali jure communia sunt omnium hæc; aer, aquæ profluens, et mare et per hoc littora maris. Nemo igitur ad littus maris accedere prohibetur.
“ And truly by natural right, these be common to all; the air, running water, and the sea, and hence the shores of the sea. Nobody is therefore prohibited to come to the sea shore."
Flumina autem omnia, et portus publica sunt, ideoque jus piscandi omnibus commune est in portu fluminibusque.
“ Also all rivers and ports are public, so that the right of fishing in a port and in rivers is common to all."
Littorum quoque usus publicus est et juris gentium, sicut et ipsius maris, et ob id cuilibet liberum est casam ibi
quam se recipiat : sicut retia siccare et ex mari deducere.3
6 And by the law of nations the use of the shore is also public, and in the same manner as the sea itself, and for this reason any person is at liberty to place a cabin there, in which he may harbor himself, and for the like reason to dry nets and draw them from the sea."
1 Inst. 2, t. 1, s. 1. ? Inst. 2, t. 1, s. 1.
* Ib. And see Dig. b. 43, t. 12, 13, 14 ; Zouch, El Juris, Descriptio, Juris et Judicii Maritimi, Part 1, s. 5; 2 Domat, Civil Law, 382, b. 1, t. 8, s. 1, 2. Civil Code of Louisiana.
The common law of England differs, and in some respects is at variance, with the doctrine of the civil law, as there will be occasion to notice in subsequent pages; but one essential difference it is
here to notice. It clearly appears from the above passages from the civil law, that the waters of the sea and the shores of the same are subject to be used in common by people generally ; every person being equally entitled to the benefit to be derived from fishing, drawing and drying nets, and navigation. They were expressly denominated by the Roman jurists, res communes, and considered as res omnium, in respect to their use and benefit, but in respect to property as res nullius. Proprietas autem eorum potest intelligi, nullius esse. By the common law, the waters of the sea and the shores of the same are as much subject to public use as they are by the civil law; but the essential difference above referred to between the two, relates to what is just mentioned as the doctrine of the civilians, viz. : that such waters are the property of no one. The policy of the common law is to assign to every thing capable of occupancy and susceptible of ownership a legal and certain
1 Taylor's Sum. of Roman Law, 246.
proprietor, and accordingly makes those things which from their nature cannot be exclusively occupied and enjoyed, the property of the sovereign.
The king, in England, is regarded as the universal occupant, and the presumption is, that all property was originally in the crown. Hence it is said, that all lands are holden mediately or immediately from the crown, and that the king has the absolutum et directum dominium, -a fiction of law adopted, not for the aggrandizement of the throne, but for the benefit of the subject. The right of property in the tide waters of England is, moreover, vested in the king, not merely on the principle, that he is the universal occupant, but on the principle of his being the fountain from whence, in contemplation of law, all authority and privilege proceed. “Touching," says Callis, “our Mare Anglicum, in whom the interest therein is, and by what law the government thereof is, the king hath therein these powers
and properties : 1. Imperium regale. 2. Potestatem legalem. 3. Proprietatem tam soli quam aquæ. 4. Possessionem et proficuum tam reale quam personale.”
To the king of England is, therefore, not only assigned the sovereign dominion of the sea adjoining the coasts, and over the arms of the sea, but in him is also vested the right of property in the soil thereof.
Bract. L. 3, s. 120; 2 Bac. Abr. 177 ; 2 Roll. Abr. 168; 2 Bla. Comm. 14, 104 ; Hale, De Jure Maris,
Callis on Sewers, 39.
Proprietas tam soli quam aquæ. It was resolved in the case of the Royal Fishery of the river Banne, in Ireland, that the sea is not only under the dominion of the king (as is said 6 Rich. 2 Fitz. Protect. 46 — the sea is of the legiance of the king as of his Crown of England), but it is also his proper inheritance, and therefore the king shall have the land which is gained from the sea (Dyer, 15). Also the king shall have the grand fishes of the sea (whales and sturgeons) which are royal fish. And all ports and havens which are ostie et januæ regni, appertain to the king, because he is custos totius regni. In the case of the Attorney General v. Richards, in the exchequer, the information stated, that by the royal prerogative, the sea and the sea coasts, and as far as the sea flows and reflows, between the high and the low-water marks, and all the ports and havens of the kingdom, belong to his majesty, and ought to be preserved for the use of his majesty's vessels and others, and that his majesty has the right of superintendency over them for their preservation.”
But although the dominion over, and the right of property in the waters of the sea and inland waters of the sea are in the crown, yet they are of common right public (as by the civil law) for every subject to navigate upon, and to fish in, without interruption ; with the exception only of royal fish, the
Case of the Royal Fishery in River Banne, Davies, R. 149.
king's right to which is founded upon the consideration of his guardianship of the seas, and his protection thereof against pirates. And although the right of property in the soil covered and flowed by those waters, is in the king to high-water mark ; yet the shore, or the land which is between the high and low-water marks," is also of common right public. The maxim is, Rex in ea habet proprietam, sed populus habet usum ibidem necessarium ; 3 the king has the property, but the people have the use necessary. The rights of use are considered to emanate from the king to his subjects, who, by virtue of their subjection, become entitled to the free and uninterrupted enjoyment of what are deemed inherent privileges. These inherent privileges are those of navigation and fishery, privileges which are classed among those public rights denominated jura publica, or jura communia, and thus are contradistinguished from jura corona, or the private rights of the crown.
See post, Chap. III. ? Besides the foregoing authorities, see 5 Com. Dig. 102; 10 Rep. 141 ; Sid. R. 149 ; Salk. R. 357; Lord Fitzwalter's Case, 1 Mod. R. 105 ; Rex v. Smith, 2 Doug. R. 441; Sir Henry Constable's Case, 5 Co. R. 107; and the opinions of the several Judges in the more modern case, Blundell v. Catterall, in the King's Bench, App. p. i; Stratton v. Brown, 4 B. & Cress. R. 485; S. C. 10 Eng. Com. Law, R. 385 ; Somerset (Duke of) v. Fogwell, 5 B. & Cress. R. 883.
* Callis on Sewers, 55. * See post, Chap. IV. 5 See post, Chap. V. • Schultes on Aquatic Rights.