and extent, that it would be within the physical competence of the state possessing the circumjacent lands, to exclude other nations from every portion of such seas; or as Martens puts it, "Partes maris territorio ita natura vel arte inclusæ, ut exteri aditu impediri possint, gentis eius sunt, cuius est territorium circumiacens." Upon this principle, the Bay of Bengal, the Bay of Biscay, the Gulf of St. Lawrence, the Gulf of Mexico, the Gulf of Gascony, the Gulf of Lyons, and many similar portions of the high sea have always been regarded as international waters and excluded from the territories of the adjacent states.

Great Britain has immemorially claimed and exercised exclusive, property and jurisdiction over the bays or portions of the sea cut off by lines drawn from one promontory to another, and called the King's Chambers. They are considered as included within the bodies of the adjacent counties of the realm, and therefore subject to the operation of the Common law. But the real, and in some cases, perhaps, almost insuperable, difficulty is in determining what bay or gulf should be regarded as included within the territorial dominion of a state. Referring to the Common law of England, we find Lond Hale in his De Iure Maris, laying it down that an arm or branch of the sea which lies within the fauces terrae, so that a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county. This test is indeed. extremely vague and indefinite, inasmuch as the distance will clearly vary. according to the nature and size of the object to be discerned, although, no doubt, it indicates somewhat Lord Hale's opinion that usage and the mode in which a portion of the sea has been treated as being part of a particular county are material.

In Reg. v. Cunningham,2 the question to be determined was whether certain foreigners who had committed a crime in a foreign vessel lying in the Bristol Channel, were subject to the jurisdiction of the Common law Courts in the county of Glamorgan. Although the place where the offence was committed was below low-water mark, beyond any river and at a point where the sea was more than ten miles wide, it was held to be within the county of Glamorgan, and consequently, in every sense of the words, within the territory of Great Britain. Lord Chief Justice Cockburn rested his judgment upon the local situation of that portion of the sea as well as upon the fact that it had always been treated as part

1 Pt. 1. c. 4; Hargrave's Law Tracts, 10; see also 4 Inst., 140. 2 Bell, Cr. C. 86.

NATURE OF TERRITORIAL BAYS &C.

29

of the parish of Cardiff, and as part of the county of Glamorgan. This question again arose in a late case before the Privy Council, on appeal from the Supreme Court of the Colony of Newfoundland, with regard to the jurisdiction of that Court over Conception Bay, which lies on the east of that Colony. It is situated between two promontories at a distance of rather more than twenty miles from one another. Its average width is fifteen miles, and the distance of the head of the bay from the two promontories being respectively forty and fifty miles. Lord Blackburn, who delivered the judgment of the Board, said:-"Passing from the Common Law of England to the general law of nations, as indicated by the text-writers on international jurisprudence, we find an universal agreement that harbours, estuaries and bays landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is bay' for this purpose." "It seems generally agreed that when the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting therefore a width of one cannon-shot from shore to shore, or three miles; some a cannon-shot from each shore, or six miles; some an arbitrary distance of ⚫ ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham,2 was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays,3 and Chancellor Kent in his commentaries, though by no means giving the weight of his authority to this claim, gives some reasons for not considering it altogether unreasonable."

"It does not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down 1 Direct U. S. Cable Co. v. Anglo-American Telegraph Co., 2 App. Ca. (394), 419.

2 Supra.

3 His Lordship was here referring to Delaware Bay.

a rule, the difficulty of the task would not deter their Lordships from attempting to fulfil it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to shew that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive) the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland."

It would seem, therefore, to follow from the above two cases that where the configuration and dimension of any bay are of such a nature as to render it extremely difficult, independently of other considerations, to pronounce an opinion as to whether it belongs to the territory of the adjacent state or not, the habitual assertion by such state of sovereignty and dominion over it, by legislation or otherwise, or by the exercise of jurisdiction over it by its tribunals, if followed by the undoubted acquiescence of other nations in such assertion, may be a sufficient and conclusive guide in determining its territorial character.

These landlocked bays, gulfs and estuaries, unlike the territorial waters on the external coast, are subject to the sovereignty and dominion of the circumjacent state, and consequently to the governance of its municipal law, as fully and completely as are its intra-territorial waters.1

The soil of the bed of such bays, gulfs and estuaries primâ facie belongs, in England, to the Crown, and in this country to Government. Before the passing of the statute prohibiting the alienation of Crown lands* in England, the soil of such bays, gulfs &c., in any portion of the districtus maris could have been communicated to a subject by charter or grant, provided it did not derogate from, or interfere with, the public

1 Grotius, de Iur. Bell. et Pac. lib. ii. c. 3. § 10; Vattel's Law of Nations, Bk. i. ch. 23. § 119; Bynkershoek, Quest. Iur. Pub. lib. i. c. 8; Dissertatio de Dominio Maris, c. 2; Wheaton's Int. Law (Boyd's 2nd ed.), 237; § 177; Hall's Int. Law (3rd ed.), 153-156; § 41; 1 Twiss' Law of Nations (2nd ed.), 293-294; § 181.

2 Hale, de Iure Maris, c. 4; Hargrave's Law Tracts, 10-11. Cf. The Free Fishers of Whitstable v. Gann, 11 C. B. N. S. 387; see infra, Lect. II.

3 Cf. Baban Mayacha v. Nagu Shravucha, I. L. R., 2 Bomb. (19) 43.

41 Anne, c. 7, s. 5.

OWNERSHIP OF SOIL OF TERRITORIAL BAYS &C.

31

rights of navigation and fishery over such waters. In the absence of any such statute in this country, it would seem that Government is af liberty to make similar grants to private individuals, unrestrained by any right on the part of the public to fish in such waters1-for the Magna Charta does not apply to India-but subject, presumably, to the public right of navigation.

1 Cf. Baban Mayacha v. Nagu Shravacha, I. L. R., 2 Bomb. (19) 44.

LECTURE II.

THE FORESHORE OF THE SEA.

the

The term 'foreshore' a generic expression-Extent of foreshore of the sea-Law takes notice of only three kinds of tides, the high spring tides, the spring tides, and the neap tidesLandward limit of foreshore of the sea according to Roman law-According to French law-According to English law as defined by Lord Hale-As ultimately determined in Attorney-General v. Chambers-The seaward limit of foreshore-Ownership of the soil of the foreshore of the sea, according to the Roman law-Discrepancies between the texts relating to this subject-How reconciled by Grotius, J. Voet, Vattel, Schultes and Austin-Ownership of the soil of the foreshore of the sea according to English lawAccording to the law of France—According to the law in this country-Soil of the foreshore claimable by subject, by grant or prescription-Burden of proof upon subject, both in England and Scotland-Theories as to the foundation of the primâ facie title of the Crown to the soil of the foreshore-Crown's ownership of the foreshore subject to the public rights of navigation, access and fishery-Crown prevented from making foreshore grants by a statute of Queen Anne-The several acts exerciseable over the foreshore-The value of each of these several acts taken singly as well as jointly-Attorney-General v. James-Lord Advocate. Blantyre-Lord Advocate v. Young -Nature of the restrictions upon the proprietary title of the Crown or of its grantee to the soil of the foreshore-Right of access to the sea-Right of navigation-AttorneyGeneral v. Richards-Mayor of Colchester v. Brooke-Blundell v. Catterall-Right of the public to fish over the foreshore-Right of the public to take sand, shells, seaweed &c.-No such right claimable by custom, either by the general public, or by any portion thereof without incorporation-The Roman Civil law with regard to wreck-Under English law, wreck primâ facie belongs to the Crown-Different species of wrecks -Right of wreck does not imply right to the foreshore, nor vice versâ-Procedure for custody of wrecks and for making claims thereto-Flotsam, jetsam and ligan, called droits of the Admiralty-They belong to the Crown unless the owner can be ascertained-The Pauline-The provisions of the English Merchant Shipping Act, 17 & 18 Vict., c. 104 with regard to wrecks-The provisions of the Indian Merchant Shipping Act, VII of 1880, on the same subject.

Under this head I propose to discuss the extent and limits of the foreshore of the sea, of estuaries and arms of the sea; the ownership of the soil of such foreshore; as well as some minor topics connected with this subdivision of law.

1 The word "foreshore," as defined by the legislature in 29 & 30 Vict. c. 62, s. 7. embraces "the shore and bed of the sea, and of every channel, creek, bay, estuary, and of every navigable river of the United Kingdom as far up the same as the tide flows." Cf. Mayor of Penryn v. Holm, 2 Ex. D. 328; 46. L. J. Ex. 506; 37 L. J. Ex. 103. Trustees v. Booth, 2 Q.