Whatever opinion, (says a modern English writer),' foreign nations may entertain in regard to the validity of the claim to an absolute dominion and ownership over the British seas by the king, yet the subjects of the king do, by the common law of the realm, acknowledge it, and declare it to be his ancient and indisputable right. There are, he says, eminent writers upon natural and upon national law, who have controverted Selden's doctrines, and have denied the King of England's exclusive dominion, and consequently his ownership, over the British seas; but however this may be, and probably will ever continue, vexata quæstio between such writers, and the writers on the common and municipal law of England, the latter, as well as the decisions of English judicial Courts, all speak the same language, and appropriate the dominion of the British seas tam aquæ, quam soli, to the king."

It is considered just, that the extent of the jurisdictional claim of a nation should be limited by a due regard for its own safety. Kent says, that considering the great extent of the line of the American coast, we have a right to claim for fiscal and defensive regulations a liberal extension of maritime jurisdiction, and he thinks it not unreasonable to assume, for domestic

1 Hall's Rights of the Sea Shore, &c., 2, 3.

21 Roll. 5; Lib. 15, 2, 168, 170; Lib. 42, 45; 3 Leo. 75; Co. Litt. 107, 260, b; Callis, 17; Molloy, 375; Black. Comm. 274; Hale, De Jure Maris, 11, 18.

purposes connected with our safety, the control of the waters on our coast, though included within lines stretching from quite distant headlands, as for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauck Point, and from that point to the Capes of the Delaware, and from the South Cape of Florida to the Mississippi.1

66

The part of the sea which is not within the body of a county, is considered as the "main sea" or ocean; and such is the interpretation of the words high seas," in the penal code of the United States.2 The general rule, as it is often laid down in the books, is, that such parts of rivers, arms and creeks of the sea are deemed to be within the bodies of counties, where persons can see from one side to the other. Lord Hale uses more guarded language, and says, "the arm or branch of the sea which lies within the fauces terræ, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coroner." Hawkins confines it to such parts of the sea, where a man standing on the one side may see what is done on the other. Relying upon these authorities, Mr. J.

11 Kent, Comm. 29.

2 Hale, De Jure Maris, Harg. Tracts, 10. See also 3 Black. Comm. 106; United States v. Wiltberger, 5 Wheat. (U. S.) R. 76.

Lord Hale, as sup., who cites, Fitzh. Abr. Corone, 399, 8 Edw. II. 4 Pl. Cr. b. 2, ch. 9.

Story held, in United States v. Grush,' that where an arm of the sea, creek, haven, basin, or bay is so narrow, that a person standing on one shore can reasonably discern, and distinctly see, by the naked eye objects on the opposite shore, the waters are within the body of a county. He did not understand the rule to be, that it is necessary, that the shores should be so near, that all that is done on one shore could be discerned, and testified to with certainty, by persons standing on the opposite shore; but that objects standing on the opposite shore might be reasonably discerned, that is, might be distinctly seen with the naked eye, and clearly distinguishable from each other. He held in this case, that the County of Suffolk in Massachusetts, in which the city of Boston is included, extends to all waters between the circumjacent islands, down to the Great Brewster, and Point Allerton. Among the several islands further out towards the ocean than others, is the Great Brewster on which the principal lighthouse stands. The extreme point of the main land, jutting from the southern coast opposite to this lighthouse, is called Point Allerton, and the distance between them is about one mile and a quarter. Processes from the State Courts of the county of Suffolk, have been at all times, without objection,

1 United States v. Grush, 5 Mason, (Cir. Co.) R. 290.

served as far down as the Great Brewster; but not below.1

In Cornfield v. Coryell, the question was presented whether, admitting the locus in quo, in which certain proceedings complained of took place, to be within the territorial limits of New Jersey, it was within the county of Cumberland. The boundaries of this county towards the bay are thus described by the act which created it: "then bounded by Cape May county to Delaware bay, and then up Delaware bay to the place of beginning." Mr. J. Washington said, that if the opinion of the Court upon the question as to the construction of the original grant of Charles II. to the Duke of York, was correct, it would seem to follow, that the western boundary of this county extends to low-water mark on Delaware bay; the expression "to Delaware bay," implying nothing more than to the east side of that bay, which the law extends to low-water mark. The learned Judge, however, did not mean to give any decided opinion on this point, because, in the first place, if there was any weight in his suggestion, the legislature of the State could at any time, should it be deemed necessary, define with greater precision the limits of the county bordering on the bay; and secondly, because it was not necessary to decide the point in the case before him.

United States v. Grush, 5 Mason, (Cir. Co.) R. 290. 2 Cornfield v. Coryell, 4 Wash. (Cir. Co.) R. 384.

It is clear, therefore, that "navigable" rivers which flow through a territory, belong to the jurisdiction of the sovereign of the territory adjoining. The well settled rule of the law of nations, is, that where an arm of the sea or a river is the boundary between two nations or states, if the original right of jurisdiction is in neither, and in the absence of any convention respecting it, each holds to the middle of the stream. The true line of territorial boundary between the United States and the British Provinces in the bay and waters of Passamaquoddy, is the middle of the stream or channel, between the territories of the two countries; inasmuch as the treaty of 1783 contains nothing definite on the subject, and fixes generally the eastern boundary line of the United States on the bay of Fundy, of which Passamaquoddy bay is part.2

river only, and the This was held by States, in reference

But where one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly established State extends to the low-water mark is its boundary. the Supreme Court of the United to the river Ohio, of which the State of Virginia was the original proprietor, and granted the territory on one side only to Kentucky; and the grant to Kentucky, it was held, did not include a peninsula, or

1 Vattel, B. 1, ch. 22, s. 266, 274; Marten, B. 4, ch. 3, s. 3, 4, 5. 2 The Schooner Fame, 3 Mason, (Cir. Co.) R. 147.