Appendix — Fair Lawn Education Ass'n v. New Jersey

Supreme Court brief1973

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No. 35, Original 29 914

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1974

UNITED STATES OF AMERICA, Plaintitt.

STATE OF MAINE, ET AL., Defendants.

APPENDIX TO EXCEPTIONS AND BRIEF OF

THE COMMON COUNSEL STATES

VOLUME I- TESTIMONY

BRICE M, CLAGETT

MICHAEL BOUDIN

Covington & Burling

888 Sixteenth Street, N.W.

Waslungton, D.C, 20006

Attorneys for the Common

Counsel States

W. LAIRD STABLER, JR.

Attorney General of Delaware

CHARLES BRANDT

Assistant Attorney General

‘ Public Building

7 Wilmington, Delaware 1980]

JON A. LUND

Attorney General of Maine

LEE M. SCHEPPS

Assistant attorney General

State House

November 29, 1974 Augusta, Maine 04330

(Names of Counsel Continued on Inside Cover)

—_——————————————— eee a ne eee

THE CASILLAS PRESS INC -'717 K Street N W -Westington O C -223-1220

PRANCIS B, BURCH

Attorney General of Maryland

HENKY KR, LORD

Deputy Attorney General

One South Calvert Street

Baltumore, Maryland 21202

ROBERT 1. QUINN

Attorney General of Massachusetts

HENRY HERRMANN

Special Assistant Attorney General

State House

Boston, Massachusetts 02133

WARREN B. RUDMAN

Attorney General of New Hampshire

DAVID H, SOUTER

Deputy Attorney General

State House Annex

Concord, New Hampshire 0330]

WILLIAM TE. HYLAND

\ttorney General of New Jersey

ELIAS ABELSON

Assistant Attormey General

19S West State Street

Trenton, New Jersey O8608

LOUIS LEE KOWITZ

Attorney General of Nea York

JOSEPH 1, HOPKINS

Assistant Attorney General

State Capitol

\lbany, New York 12224

RICHARD J, ISRAELI

Attorney General of Rhode Island

W. SODTER ALLEN IR

\ssistant Attorney General

Providence County Court House

Providence, Rhode Island 12903

ANDREW EP MILLER

Attorney General of Vureinia

GERALD LL. BALILES

Deputy Attorney General

Supreme Court Building

Richmond, Virginia 23219

(i)

TABLE OF CONTENTS

APPENDIX TO EXCEPTIONS AND BRIEF

OF THE COMMON COUNSEL STATES

VOLUME | — TESTIMONY

Witnesses: Page

Lyman B. Kirkpatrick, Jr.

Morton J. Horwitz

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Philip C. Jessup

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Joseph H. Smith

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David H. Flaherty

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Philip C. Jessup

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Richard B. Morris

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Richard B. Morris

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Witnesses (cont'd):

Samuel E. Thorne

Kinvin L. Wroth

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7 > * * *

DIRECT EXAMINATION OF

LYMAN B. KIRKPATRICK, JR.

BY MR. CLAGETT:

Q. Will you please state your name and address and

describe your background and experience? A. My name

is Lyman B. Kirkpatrick, Ir. I am a Professor of Political

Science and a University Professor at Brown University in

Providence, Rhode Island. I reside in Narragansett, Rhode

Island.

I was born in Rochester, New York, and I graduated

from the Princeton University School of Public and Inter-

national Affairs in 1938. As a student at Princeton, I

majored in International Relations in the Department of

Politics and wrote my thesis under Professor Edward S.

Corwin on the subject of “The Power of Congress in

Foreign Relations.”

Upon graduation from Princeton, I worked for the

United States News Publishing Corporation in Washington

in a variety of capacities, but primarily in the field of re-

porting on foreign relations and international affairs. In

the period from 1939 to 1942, I was also the Washington

Editor and Publisher of a newsletter originating in London

called “The Whitehall Letter”, a weekly analysis of world

affairs.

In 1942, I joined the Office of Strategic Services, and

served with that organization throughout the war, primarily

in Europe. I was Chief of the Reports Division in London

from 1942 to 1944 and then the Intelligence Officer of

the OSS Unit assigned to the First United States Army

for the landing in Normandy. In August of 1944, in

Normandy, I was recruited by the staff of the Twelfth

U.S. Army Group to become the Intelligence Briefing Of-

ficer for General Omar N. Bradley. I served in this capac-

ity until the end of the war in Europe, at which time I

was reassigned to the China-Burma-India theatre, but due

to the Japanese surrender, never served in that area.

On leaving the Army with the rank of Major, I re-

turned to the United States News Publishing Corporation

and served as a writer on a new magazine called “World

Report” (One of the predecessor magazines to the present

“U.S. News & World Report’’). In this capacity, I covered

the Department of State, the Congressional foreign relations

committees, and other developments in international affairs.

In January of 1947, I was asked to take leave from the

United States News to assist in the organization of what

has become the Central Intelligence Agency. That leave

lasted for 18 years. In the CIA, I served initially as the

Chief of the Domestic Office for the Collection of Foreign

Information in the United States. From .1950 to 1951, I

was the Executive Assistant to the then Director of CIA,

General Walter Bedell Smith. In 1951 and 1952, I was

the Assistant Director in charge of the office responsible

for all intelligence collection throughout the world. From

1953 to 1961, I served as the Inspector General of CIA

responsible for inspecting every aspect of all of its opera-

tions — in the United States and overseas. In this capac-

ity, | personally made inspection trips throughout Africa,

Latin America, Asia and Europe.

In 1961, I was appointed Executive Director-Controller

of CIA, the third ranking officer in the Agency. This posi-

tion, in effect, is the General Manager of the agency re-

sponsible for its day-to-day activity under the policy

direction of the Director.

For my work in CIA, I received in 1960 an award from

the Civil Service League as one of the 10 outstanding of-

ficials of the U.S. Government. In 1964, I received one of

the four Presidential awards for Outstanding Federal Civil-

ian Service, the highest honor for a career civilian in the

government.

In 1965, I resigned from CIA to fulfill a life-long am-

bition to teach and accepted a University Professorship at

Brown. In this capacity, I have developed four courses.

One is entitled “American Security Policy,’ which treats

all aspects of our international relations ranging from de-

fense policy through diplomacy to intelligence operations

and military affairs. This course largely deals with a study

of the military-industrial complex, including many aspects

of federal-state relations such as the allocation and regula-

tion of natural resources. A corollary of this course is one

entitled “Communist Cold War Operations,” which analyzes

in detail the foreign relations of the Soviet Union and

other Communist countries. My two seminars deal with

“Problems of National Strategy” and “Domestic Decision-

Making.” In the former, which is a graduate seminar, we

deal with aspects of problems in the defense and diplo-

matic establishments. In the “Domestic Decision-Making”

seminar, the emphasis is primarily on internal affairs, but

these include such matters as the defense budget, the draft,

regulation and. allocation of natural resources, and so on.

In addition to these courses at Brown University, I also

present two courses at the Naval War College in Newport,

Rhode Island, dealing with cold war operations and prob-

lems of national security. During the academic year 1971-

1972, | am taking leave from Brown University to occupy

the Chester A. Nimitz Chair of Political and Social Philos-

ophy at the Naval War College.

My books include The Real CIA, Captains Without Eyes:

Major Intelligence Failures in World War II, American De-

fense Policy (a text prepared for the United States Navy

to use as a prototype for the presentation of courses on

American security policy), and Russian Foreign Policy

Under Czar and Commissar (to be published in 1972).

I have also written numerous articles for various publica-

tions: for twelve years I wrote “Armies of the World” for

the Encyclopedia Britannica Yearbook; I wrote a series of

12 articles for the Naval War College on cold war opera-

tions, and an article in “Military Review” on “The U.S.

Intelligence System.” I am contemplating a study next year

on “The Military Professional” and have proposed the

establishment at Brown of a Center for Strategic Studies.

Among the organizations to which I belong are the

Military Division of the International Studies Association,

the American Academy of Political and Social Science and

the Political Science Association.

A. Iam a member of the Board of Visitors of the De-

fense Intelligence School in Washington. i have lectured

regularly at the Foreign Service Institute of the Depart-

ment of State, the International Police Academy of A.I.D.,

and the Army War College.

* * * * *

Q. Professor Kirkpatrick, the United States has claimed

in the present case an exclusive right to develop the re-

sources of the seabed of the continental shelf adjacent to

the Atlantic Seaboard beyond three miles. The Atlantic

Seaboard States have denied that claim and assert that

such exclusive rights belong to individual States as to vari-

ous portions of the seabed which may in some instances

extend substantially beyond the three-mile coastal belt. Do

you have an opinion whether the sustaining of such exclu-

sive claims of the States would adversely affect the United

States in the conduct of its foreign relations and if so, would

you state your opinion and the reasons for it? A. I do

not believe that upholding the claims of the States would

adversely affect the conduct on foreign relations by the

United States. A succession of events since 1945 had

made such State claims even more consistent witn the

federal power over international affairs. It is now inter-

nationally recognized that the exclusive right to develop

the resources of the Atlantic Seaboard continental shelf

resides in this country. The question whether development

is by the Federal Government, the States, or private opera-

tors under the auspices of either, is an internal matter

which would not affect the conduct of foreign relations.

On September 28, 1945, President Truman proclaimed

that the United States regarded the resources of the sub-

soil and seabed of its continental shelf as “appertaining”

to the United States. The proclamation appears in the

Federal Register, Vol. 10, p. 12303. In succeeding years

foreign states made similar or more extensive claims as-

serting their authority over their own continental shelves:

many of those claims were in this hemisphere.

In 1953 the Outer Continental Shelf Lands Act made ex-

plicit this country’s exclusion of other nations from develop-

ment of our continental shelf resources, by reaffirming United

States authority over those resources and establishing a satu-

tory regime for their disposition.

In 1958 the Geneva Convention on the Continental

Shelf recognized the exclusive claims of coastal nations

over the seabed resources of their respective continental

shelves. The Convention is set forth in Volume 15 of

United States Treaties (Part I) at page 471. The United

States and a large number of foreign states are parties to

that Convention, including France, Great Britain, the Soviet

Union, Canada, and Mexico. These states are listed in De-

partment of State Treaties in Force, pp. 324-25 (1971). It

is therefore far less likely now than ever before that the

principle of this country’s authority to exclude other na-

tions from development of our continental shelf will be

the subject of international dispute.

This is not to say that the Convention has eliminated

the question of continental shelf resource rights from

international affairs. On the contrary, there is at present,

for example, controversy regarding the definition of the

seaward limit of the shelf for purposes of delimiting the

exclusive development rights of coastal states. The matter

has been discussed recently by the Special Subcommittee

on the Outer Continental Shelf of the Senate Committee

on Interior and Insular Affairs in its Report on the Outer

Continental Shelf, 91st Cong., 2d Sess. pp. 7-16 (1971).

For present purposes, however, what matters is that this

nation has asserted its authority over the adjacent conti-

nental shelf vis-a-vis all foreign powers. It is my under-

standing that the States do not claim for themselves any

more than that the United States claims for itself. Nor

would it be possible as a practical matter for the States to

claim more since it is the United States’ assertion of these

claims in the international community which makes those

claims effective.

This country’s authority over the continental shelf being

established, whether the shelf is developed under the au-

thority of the Federal Government or under that of the

States is essentially an internal matter not affecting the

interests of foreign states and thus not involving the foreign

relations of the United States. This distinction — between

(1) the claims of this country to shelf resources as against

all other countries and (2) the question how those resources

should be allocated between the Federal Government and

the States — is well grounded in both practice and com-

mon sense. President Truman’s Executive Order 9633,

issued in connection with his 1945 proclamation referred

to above and reported at Vol. 10, p. 12305 of the Federal

entirely separable. That Executive Order stated that this

country’s assertion of authority over the continental shelf

resources was not intended to prejudice the respective

claims of the Federal Government and the States to “the

ownership or control of the sub-soil and seabed of the

continental shelf within or outside of the three-mile limit.”

This position — that the allocation of shelf resources

between the Federal Government and the States does not

involve foreign relations matters — was adopted explicitly

by the United States Department of State in testimony of

Jack B. Tate, Deputy Legal Adviser, in 1953 to the Senate

Committee on Interior and Insular Affairs concerning legis-

lation affecting the submerged lands. The testimony ap-

pears in the volume titled Hearings Before the Senate Com-

mittee on Interior and Insular Affairs on S.J. Res. 13,

83d Congress, Ist Sess. (1953). Mr. Tate in the testimony

just mentioned, stated as follows at p. 1067.

“Mr. Tate. *** We have taken the position that whether

this exploration of the seabed is done by the Federal Gov-

ernment or the State governments is not a matter that is

of international concern, nor is it a matter that, as far as

I know, would conflict with any of our treaty obligations.

* * * * *

“Senator Cordon. The Chair would like to ask one

question here for the purpose of clarification. Is the Chair

correct in the understanding that the witness has said in

his answer to Senator Jackson that the utilization of the

seabed for the purposes of extracting values therefrom on

the Continental Shelf, which right has been proclaimed by

the President, is a use of the seabed of the Continental

Shelf with respect to which the matter of whether the

use be limited to the Government of the United States

or by transfer from the Government of the United States

by any of the several States, is not in the opinion of

yourself and of the Department, as you understand it, an

international question?

“Mr. Tate. The Chairman is correct in that statement.”

I, of course, am not a lawyer and cannot comment on

the legal aspects, but in my judgment this is a correct

analysis of the situation so far as the practicalities and

customs of international relations are concerned.

In the same hearings Mr. Tate repeatedly made the

point I made a few moments ago, that as an international

matter no State can make a greater territorial claim than

that made by the United States. Hearings, pp. 1053, 1059-

60.

This evaluation was carried forward in the Submerged

Lands Act which emerged from the congressional inquiry

in which Mr. Tate testified. That legislation conferred on

the respective adjacent coastal states the right to develop

the seabed resources of the continental shelf out to a dis-

tance of three miles in most cases and, as matters eventu-

ated after appropriate judicial proceedings, three marine

leagues into the Gulf of Mexico in the case of Florida and

Texas.

Thus Congress obviously concluded that no interference

with federal control over foreign affairs would result from

recognizing State ownership to that extent.

Operational control of such resources even beyond the

three-mile/three-league limit is not confined to the United

States and its agencies. Under the Outer Continental Shelf

Lands Act, these resources can be developed under lease

78-A by private individuals. There is no reason why a State

could not undertake such development under the legisla-

tion. If Congress has consented to such a course, as it has,

it is difficult to see how direct State ownership of these

resources poses any substantial difficulty for federal inter-

ests in the conduct of foreign relations.

The possibility that property claimed by citizens of the

United States may become a subject of dispute with for-

eign nations or their citizens can, of course never be fore-

closed. However, in view of the firm status of this country’s

claisns to the seabed resources of our continental shelf,

such disputes seem less probable than disputes respecting

American vessels in foreign ports, American property in

foreign countries, and property subject to contract between

Americans and foreign nationals. Indeed, the boundary lines

of the States of this country which border Canada and

Mexico may at times involve negotiation and agreement

with those countries.

In my opinion, the powers exercised by the Federal

Government have been ample to secure the foreign rela-

tions interests of the United States where the ownership

of property by organizations or individuals under the pro-

tection of the United States has become involved in dis-

putes with foreign nations or where other foreign relations

interests are involved. While I cannot speak as a lawyer

would concerning the precise terms and limits of these

federal powers, the number and variety of powers which

the Federal Government exercises are patent: direct author-

ity over foreign relations, commerce with foreign nations,

treaties, imports and exports, defense, taxation and eminent

domain.

The development by the States of the resources in ques-

tion will, therefore, not involve the interposition of the

States between the United States and foreign nations. When

the country speaks officially to other governments, it does

so through the Federal Government which is entrusted

with authority over foreign affairs under our Constitution. 81

There is no reason why any other course would be adopted

in connection with continental shelf resources.

As a practical matter the development of the continental

shelf seabed resources will largely if not entirely be carried

on by private enterprises, whether their leases or licenses

run from the United States or the States. Such designated

rights were granted to private developers by the States

well before the 1953 federal legislation. Since that time

substantial leasing to private developers has been done by

the Federal Government and today “(t)here is an extensive

record of outer continental shelf mineral ieasing for oil and

gas resources,” quoting in the words of the U.S. Public

Land Law Review Commission in Vol. | of its Study of

the Outer Continental Shelf Lands of the United States,

p. 462 (1968).

The salient fact is that those private lease operators will

be doing the same work whether the resources appertain

to the Federal Government or the States. If in the event

of dispute the United States does not wish to sponsor

particular claims or positions of American private operators

in the international community, it will not do so whether

it or a State is the lessor.

It is also my view that there is no reason why State

ownership of the resources should prevent any interna- 82

tional arrangement which the United States may promote

or adopt for the governance of seabed resources or other

uses of the seas. In this connection, I should note that

President Nixon, on May 23, 1970, proposed that all na-

tio~s renounce by treaty their rights in the seabed beyond

a water depth of 200 meters and further proposed an

international authority to explore for the benefit of all

nations the resources of the seabed beyond that depth.

Assuming that any of the submerged lands claimed by

the States lie beyond the 200 meter isobath, I cannot

imagine that the powers of the United States previously

mentioned — I refer in particular to the treaty power —

are not adequate to ensure that such lands be included in

such a proposal. Te United States compromises claims of

its citizens against foreign nations in general settlements:

it affects the legal liabilities of its soldiers through status

of forces agreements; it confers diplomatic immunity on

foreign nationals who might otherwise be subject to suit

in this country, and State courts and other State authori-

ties must recognize that immunity. Whatever the technicali-

ties of procedure, the Federal Government is in no way

helpless to protect its foreign relations interests in the

development of shelf seabed resources, whoever may pos-

sess them.

I have, in considering the general question posed to me,

examined testimony presented in Congress at the time the

Submerged Lands Act and Outer Continental Shelf Lands

Act were passed. This testimony includes not only the

Senate hearings previously mentioned but also testimony

which appears in the volume titled Hearings Before Sub-

committee No. | of the House Committee on the Judiciary

on H.R. 2948, 83d Congress, Ist Session (1953).

Examination of this testimony does not indicate any

significant foreign policy objection to State as opposed to

Federal control over the resources in question. It is true

that questions were raised about the wisdom of recogniz-

ing state boundaries as such beyond three miles. This is

an objection now laid to rest, I believe, by the clear dis-

tinction, since confirmed by the 1958 Convention on the

Outer Continental Sheif, between territorial waters and

the continental shelf. Moreover, the questions raised were

directed to legislation which might have appeared to

validate boundary claims of the States, in the sense of

boundaries of territories under full territoria! sovereignty,

no matter how far they extended.

Both the testimony of Mr. Tate quoted above and the

legislation which ultimately evolved show that the question

how State control of continental shelf seabed resources

might affect such foreign relations interests was a subject

of attention. Among the many witnesses who testified be-

fore the Senate Committee were the Secretary of the Navy,

the Attorney General, the Secretary of the Interior, the

former Solicitor General of the United States, and two

representatives of the Legal Advisor of the Secretary of

State. Witnesses of similar stature appeared in the House

hearings. Under the circumstances, the lack of mention of

any significant foreign policy objection to State ownership

of seabed resources as such seems to me powerful evidence

that no such objection exists.

Q. In asserting the claims described in the preceding

question, the States may assert that they possess historical

boundaries in the ocean extending the same distance sea-

ward as the continental shelf lands whose resources they

claim. Do you have an opinion whether the assertion of

such boundaries would prejudice the foreign relations, de-

fense or other interests of the United States and, if so,

will you state that opinion and the reasons for it? A. In

my opinion, a recognition of State boundaries as described

in your question will not prejudice any such interests, it

being understood that such boundaries delineate State au-

thority over seabed resources. If State boundaries were

claimed for other purposes, such as to establish the right

to exclude foreign vessels from the ocean surface in that

area or to assert exclusive property rights to the fish and

like resources of the water above the seabed, then a dif-

ferent question would be posed.

It is certainly true that the boundaries in the sea, so far

as they assert rights beyond property ownership of seabed

resources, are an important and presently disputed subject

of international relations. Many different positions have

been taken by various countries concerning, for example,

the distance from the coastline within which the foreign

fishing vessels require permission to operate. No firm inter-

national accord has been reached on the limits of bound-

aries for this and similar purposes.

The different positions taken by foreign states on the

boundaries of their respective “territorial seas” are illus-

trated readily. As of 1965, 41 foreign states claimed a

three-mile limit, 20 claimed a six-mile limit, 34 claimed

12 miles (including the Soviet Union and Mainland China),

and 12 claimed other distances ranging from four miles to

200. This data is taken from the Department of State’s

Geographic Bulletin No. 3 (1965). In August 1970, at a

Congress held in Peru, fourteen nations declared that all

nations have a right to claim as much of the sea and sea-

bed near their coasts as necessary to protect valuable re-

sources.

The latest effort to reach uniformity on this question

of the boundaries of “territorial seas” was at the 1958

Geneva Conference on the Law of the Sea. It failed be-

cause a two-thirds vote could not be achieved for a United

States proposal that the territorial sea be universally fixed

at six miles with an additional six-mile contiguous zone

for fishing rights.

The interests of the United States are certainly involved

in determining where territorial-sea boundaries lie, to pro-

tect American interests in fishing, to secure the right of

passage of our naval vessels, and for similar purposes.

The use of the term “boundaries” for various different

purposes is well established. The Convention on the Conti-

nental Shelf itself makes clear that the distance that it

established for exclusive coastal state jurisdiction over sea-

bed resources is limited to those resources and does not

embrace other interests of the kind just mentioned. The

Submerged Lands Act and the Outer Continental Shelf

Lands Act adopt a similar approach in distinguishing ex-

ploitation of mineral resources from other rights in the

ocean. Thus State ownership of the submerged lands would

not encroach upon such basic American principles as free-

dom of the seas and limiting territorial waters to the

minimum.

So long as the State boundaries involved in the ques-

tion which you have posed are directed only to secure

such resources I do not believe their assertion differs in

practical consequence from any other phrasing of the

States’ claim to such resources. Such boundaries would not,

for example, affect the right of passage possessed under

international custom by foreign vessels over the waters of

the continental shelf. While I conceive it to be most un-

likely that a State would ever seek to interfere with such

passage, my present point is that international interests of

this kind do not depend upon whether or not submerged

lands are being developed, or by whom, and that bound-

aries demarcating seabed development rights do not imply

the assertion of boundaries for other purposes.

Indeed, foreign merchant vessels possess a right of pas-

sage within the three-mile limit for most purposes. The

Congress has expressly provided for State ownership of

seabed resources as well as other state authority to the

three-mile limit. The Submerged Lands Act actually speaks

of the three-mile limit in the Atlantic as representing the

“seaward boundary of each original coastal State.” The

same provision itself states that it is not designed to preju-

dice the existence of any State’s seaward boundaries be-

yond that distance. So it seems clear that Congress did

not believe state boundaries beyond three miles, at least

for some purposes, would be inappropriate.

Q. Do you have an opinion whether the States’ claims

would interfere with the defense or other military inter-

ests of the United States were those claims sustained and,

if you have such an opinion, would you state that opin-

ion and the reasons for it? A. In my opinion, State

ownership and development of the seabed resources of

the continental shelf need not interfere with the defense

of the United Staies or other military interests of this

country, in view of the powers exercised by the Federal

Government which are ample to protect those interests.

The ocean area adjacent to the coasts of this country

is, of course, of great importance to the security of this

country, but hardly more so than the on-shore lands with-

in the boundaries of the States. Military activities are

carried on in this ocean area and fixed military installa-

tions may be necessary there, while the activities of other

governments or of private citizens in this ocean certainly

may affect this country’s defense. Once again, this is no

less true of activities carried on within the land area of

the United States itself.

The powers exercised by the Federal Government which

I have already referred to are in my opinion adequate,

whether the Federal Government or the States own and

develop the submerged lands in question, both to authorize

activities by the military authorities in the ocean above

the continental shelf and to prohibit activities by the

States or by American citizens that are contrary to the

defense interests of this country. In time of war or na-

tional emergency, and even in peacetime to the extent

necessary for defense, local and private interests yield to

the military needs of the nation.

In this regard, undue emphasis should not be placed on

the need for Federal power. In my experience, the States

of this country have cooperated significantly of their own

volition where activity in the interests of national defense

called for action or restraint by individual States.

In fact, cooperation between the Federal Government

and the States and shared responsibility has been the prem-

ise of the Submerged Lands Act. Thus, within the three-

mile belt on the Atlantic Coast, the States possess the right

to develop seabed resources while the United States has re-

tained control over the same area for purposes of commerce,

navigation, national defense, and international affairs.

For example, ever since 1899 the Secretary of the Army

has had an absolute right to prohibit placement of any

structures in or over navigable waters of the United States,

including the three-mile coastal belt. This authority is found

in Section 10 of the Rivers and Harbors Act of 1899, which

is reprinted in section 403 of Title 33 of the United States

Code. Thus in the three-mile belt, although the States pos-

sess the seabed resources, the Secretary of the Army has a _

veto power over construction of structures and therefore

over means of exploiting the resources.

The premise that an allocation of responsibilities is

feasible has recently been emphasized by the federally

sponsored Report of the Commission on Marine Science,

Engineering and Resources, which has been reprinted as

House Document No. 91-42, 91st Congress, Ist Session

(1969). In discussing the future of the coastal zone, the

Report (pp. 5€-57) proposes new federal and state ma-

chinery for cooperation based on the recognition that:

“The states must be the focus for responsibility and ac-

tion in the coastal zone. .. . An agency of the state is needed

with sufficient planning and regulatory authority to manage

coastal areas effectively and resolve problems of competing

issues.

“However (the States) will need Federal assistance and sup-

port and the Federal Government must assure the protection

of national interests in the coastal zone.”

This cooperative approach, which allots resource develop-

ment to the States and preserves defense functions to the

Federal Government, can operate as easily beyond three miles.

The three-mile belt of the ocean immediately adjacent to

the coasts of this country represents the area of the sea fron-

tier traditionally regarded as most critical to the defense of

the United States. In supporting my conclusion to the ques-

tions you have posed, I believe it is significant that the Con-

gress, in the Submerged Lands Act, has entrusted the seabed

resources of this belt to the States and in the Gulf of Mexicc

has countenanced the claims of Texas and Florida to three

marine leagues. If State development of these resources so

close to shore is feasible in terms of the defense interests of

this country, I believe that it follows that development of

resources beyond three miles is also feasible.

At the same time the traditional importance of the three-

mile belt has diminished because modern military technology

permits activities of foreign nations carried on on the high

seas far from our shores to pose very significant threats. Thus,

ballistic missiles can be fired from the ocean at great distances

from their targets. While these developments enlarge the

danger to our country, they diminish the importance of a

fixed belt of the ocean closely adjacent to our coast as a

military boundary of unique significance to national defense.

The exploitation of the resources of the seabed of the conti-

nental shelf could enhance the defense of the United States

by providing added facilities for detection of submarines and

other fixed installations of early warning.

The legislative testimony taken in 1953, which I have pre-

viously commented upon, contains some discussion pertinent

to the relationship between defense interests and State

development of seabed resources. In the House hearings pre-

viously cited the Secretary of the Navy was represented by

Admiral Nunn, the Judge Advocate General. After endorsing

the decision to confer resource development rights on the

States as the legislation contemplated the following colloquy

occurred (House Hearings, p. 212):

“Mr. Hillings. And the Navy also, as I understand your

testimony, makes no contention that the national defense

program will suffer in any way if these oil deposits are devel-

oped under State ownership and supervision, rather than

Federal ownership?

“Admiral Nunn: That is correct, sir. The Department of

Navy makes no such contention as that. It does urge, however

the desirability of proceeding with the development of all

petroleum resources, and we are conscious of the difficulties

of doing that under the auspices of the Federal Government,

particularly within the historical boundaries of the states.”

I see no reason why the policy views represented by Admiral

Nunn’s testimony are not applicable to the submerged lands

now claimed by the Atlantic States. In fact, it appears that

various drafts of the legislation pending before Congress when

Admiral Nunn spoke contained no three-mile limit on Atlantic

submerged lands to be recognized as State property but

contemplated recognizing State possession of all such lands

within State historical boundaries (House Hearings, pp. 2-

171).

* * * * *

I should add at this point that my examination of the

legislative testimony suggested no substantial reason why

the defense interests of the United States would be haz-

arded by recognition of the State claims here involved, just

as it suggested no such reason relevant to foreign relations

interests.

A statement by Secretary Forrestal to the Committees

on the Judiciary, 80th Congress, 2d Session, read in part

(Hearings on S. Res. 1988, p. 607 (1948) ):

“It is the view of the National Military Establishment

that development of the tidelands areas should proceed as

rapidly as possible and that all necessary action should be

taken to permit rapid development of those areas. Delays

in the development of the oil potential in the tidelands is

considered contrary to the best interests of the United

States from the viewpoint of national security. . . . I do

wish to emphasize that underdeveloped oil fields provide

no power for the machines of either war or peace.”

The seabed resources of the continental shelf are them-

selves important to our national defense to supplement

supplies of oil and other mineral resources. Within the land

boundaries of the United States these resources are general-

ly within tie boundaries of the individual States and have

been developed under the authority of the States, the

Federal Government reserving certain petroleum deposits

for its own future military use. In the future these resources

which the States have principally managed in the past must

come increasingly from the ocean seabed.

The resources of the seabed are vast and their full ex-

tent is only beginning to be measured. As the United

States Geological Survey recently summarized in the con-

cluding chapter of its study entitled “Potential Mineral

Resources of the United States Outer Continental Shelf”

(1968): “‘Even if usable shelf resources were to consist

only of the petroleum fluids, however, their potential

contribution to the Nation’s future security and prosperity

would be enormous and would more than justify the

efforts to bring about their efficient development.”

Our technological ability to expioit these resources is

increasing apace. A producing oil well is now in operation

over a deposit 300 meters beneath the surface of the sea

and in 1968 a deep sea drilling project successfully drilled

sediment cores from 2,500 feet below the ocean floor

working in depths up to 17,600 feet. New York Times

Almanac, 1971 p. 343. With man’s demand for energy

resources outdistancing available supplies, the greatest

untapped areas are under the sea.

As previously indicated, the Department of Defense has

gone on record to the effect that exploration and exploita-

tion of these materials in peacetime is essential to our

military strength. To the extent that State development of

seabed resources of the continental shelf would promote

such exploration and exploitation, I believe such develop-

ment would affirmatively contribute to the military inter-

ests of this country. State development has served the

military capability of this country in the past on land and

I would expect it to continue to do so in the future to

the extent the states are permitted to develop areas of

the continental shelf.

©. Do you have an opinion whether the assertion of

State police powers over certain conduct occurring in the

area of the seabed of the Outer Continental Shelf and

any artificial structures affixed to it would interfere with

the foreign relations, defense or other interests of the

United States and, if you have such an opinion, would

you state it and the reasons for it? A. My opinion is

that there would be no such adverse effect. The Conven-

tion on the Continental Shelf itself recognized that the

coastal state exercises over the continental shelf “sovereign

rights” for purposes of exploring and exploiting its natural

resources. Whether the law generally applicable to such

activities is federal, State, or some admixture of the two,

does not by itself seem to me to have any significant ef-

fect upon federal interests.

Congress itself in the Outer Continental Shelf Lands Act

provided that the governing substantive law for the Outer

109

Continental Shelf should be the law of the respective

adjacent State with certain limited exceptions affecting

federal interests. So far as these interests exist, I believe

the federal powers already discussed are adequate to se-

cure them.

Once more it is pertinent to note the analogy between

the situation on-shore and in the ocean. Many of the

powers exercised by the States within their settled bound-

aries have consequences for foreign relations, defense and

othe: interests of the United States. At the same time the

United States is able to protect those interests by overrid-

ing legislation, recognition of sovereign immunity, treaties,

condemnation of property for military installations, and

similar means. I see no reason why this same approach

is not adequate for the continental shelf resources.

* * * * *

DIRECT EXAMINATION OF

MORTON J. HORWITZ

BY MR. CLAGETT:

Q. Professor Horwitz, would you please state your

name, background and experience? A. My name is

Morton J. Horwitz. I am Assistant Professor of Law at

Harvard Law School. I teach courses in American Legal

History and English and American Constitutional History.

I received my B.A. from The City College of New York

in 1959, a Ph.D. in government from Harvard University

in 1964, and LL.B. Magna Cum Laude from Harvard Law

School in 1967. My doctoral work was in the area of

constitutional history and the history of political thought.

I am a member of the Massachusetts bar. In 1967-68

I served as law clerk to Judge Spottswood W. Robinson,

110

111

112

Ill, of the United States Court of Appeals for the Dis-

trict of Columbia Circuit. From 1968 through 1970 I

was Charles Warren Fellow in legal history at Harvard

Law School. I was appointed in 1970 to the Harvard Law

School faculty.

I am a member of the Selden Society, a group of

scholars interested in English legal history, and of the

American Society for Legal History, the closest American

counterpart to the Selden Society. I have written a num-

ber of articles, the latest of which is “The Emergence of

an Instrumental Conception of American Law, 1780-1820,”

to be published this summer in Perspectives in American

History, which contains considerable material dealing with

English law of the 17th and 18th centuries.

* * * * *

Q. In your opinion, are there special difficulties associ-

ated with ascertaining English law and practice in and

before the 17th and 18th centuries that would make it

useful for the Court to hear the testimony of an expert?

A. Yes, I believe there are several difficulties in ascertain-

ing English law in this period. First, there is the very

difficult problem of sources. Before the advent of print-

ing in England — that is, before the end of the 16th cen-

tury — all sources of English law are in manuscript form.

I have studied a number of manuscripts which still have

not been published. Of even greater significance, however,

is the fact that even the published sources are usually not

found among materials with which moder lawyers are

familiar. With the arguable exception of Coke’s Institutes

no general treatise on English law makes its appearance

until Blackstone’s Commentaries in 1765. The result is

that there is no generally agreed-upon source of English

113

law until the late 18th century. One must therefore begin

a rather difficult search among technical and specialized

treaties written beginning in the 17th century. Moreover,

when we come to the very important abridgements — the

main general source of English law in the period in ques-

tion — it is the legal historian who can sort out the con-

temporaneously influential abridgements, such as those by

Rolle, Bacon, Viner and Comyns, from the flood of un-

reliable and pedestrian manuals on English law that simul-

taneously appeared.

Above all, however, the main consequence of the lack

of general legal treatises in the 17th and 18th enturies

is that we must often find the true scope of the law in

the practice of the period, which is a rather formidable

task. Thus, it is necessary to do extensive research in the

various calendars of British public documents, such as

State Papers, Domestic and Colonial; Treasury Papers and

Books; Acts of the Privy Council, etc.

A second difficulty requiring expertise deals with the

reading of manuscript sources. Not only are these sources

difficult and time-consuming to find, but they are often

impossible to read for one not familiar with the writing

style of the period. Some of them are written in Media-

eval French.

A third problem arises from difficulties associated with

the rather technical and archaic legal formulations charac-

teristic of the period. For example, in the area of admiralty

jurisdiction, the numerous issues that turn on whether the

Admiral had jurisdiction “within the body of a county”

are not at all apparent to a modern lawyer unfamiliar

either with English legal institutions of the 17th century

or with the historical significance of the great battle to

limit the jurisdiction of admiralty.

Finally, in my opinion the main justification for expert

legal testimony in this area is that it is so difficult for

one not familiar with the historical context of ancient

legal doctrines to extract from stark and unadorned hom-

book statements the subtlety, richness, texture and actual

social significance of particular legal rules. Not only do

the meaning of words, technical as well as unvechnical,

change, but legal conceptions themselves change: unan-

nounced. Thus, it is primarily in their historical context

that these legal formulations can really have any meaning

for us today.

121

King’s sovereignty over the English seas. For example, one

scholar traces the origin of the English Admiralty Court to

the King’s assertion of sovereignty over the sea during the

years between 1340 and 1357. He writes:

“Its origin was intimately connecied with the claim made

by Edward III. and his progenitors to be sovereigns of the

sea. The phrase ‘sovereignty of the sea’ is variously ex-

pressed in documents of the period as ‘superioritas’,

‘custodia’, or ‘Admiraliatus maxis’, and the institution of

a Court of Admiralty to deal with piracy and other of-

fenses committed at sea was the outward and visible sign

of the existence of the sovereignty to which the kings

of England laid claim. The battle of Sluys left Edward

III. in a position to enforce this claim by the institution

119 Q. Professor Horwitz, do you have an opinion as to of an Admiralty Court, of which the principal function

English law and practice of the 17th and 18th centuries was to keep the king’s peace upon the sea.” Reginald G.

concerning ownership of the seabed under the high seas Marsden, ed., 1 Select Pleas in the Court of Admiralty,

off English coasts? If so, will you state it? A. Under p. xv. Maine et al., Ex. No. 200.

120 English law and practice of the 17th and 18th centuries, Sometime in the first half of the 17th century, there

ownership of the seabed under the high seas off English

coasts was vested in the Crown. The precise distance this

ownership extended from the coast was a matter of some

uncertainty. But that English law then recognized Crown

proprietary rights in the seabed is altogether clear. I would

propose to use the term “marginal sea’”’ to mean that belt

of water to which such rights extended, incorporating in

that term the uncertainty as to precise distances.

Q. Please explain the basis for your opinion. A. First,

let me provide some of the backgrcund. Although the ques-

tion of ownership of the seabed first became of central

significance in English law during the 17th century as a

result of controversies over fishing rights, the boundaries

was discovered in The Tower of London a manuscript

proclamation by King Edward I (1272-1307) entitled “De

Superioritate Maxis Angliae & jure officii Admiralitatis in

eodem,” in my Latin, “Of the Superiority Over the En-

glish Sea and the Office of Admiral.”’ The proclamation,

first translated by Sir John Boroughs in his The Soveraign-

ty of the British Seas (1633) (1651 ed.), pp. 28-42, Maine

et al., Ex. No. 177, 176, was of great influence in the

17th century, especially after it appeared in the posthu-

mous edition of Lord Chief Justice Coke’s Fourth Institute,

first published in 1644, at pp. 142-45. Maine et al., Ex-

hibit No. 183. The proclamation, dated by Boroughs at

around 1299, declares “that .. . the Kings of England

of coastal lands, and the jurisdiction of admiralty, there

was a much older English legal tradition recognizing the

. . . have been in peaceable possession of the Dominion of

122 the Sea of England, and of the Isles being in the same .. .”

123

Boroughs trans., pp. 29-30. It was frequently cited in the

17th century as demonstrating the long-standing claims of

the Crown to sovereignty over the sea.

Another historian confirms the early assertion of royal

authority with respect to fishing.

“The English kings had since the time of Edward III.

definitely asserted their claim to sovereignty in the seas

lying about the coasts of their kingdom. Edward III. is-

sued a proclamation making this claim, and had his right

admitted by the Treaty of Paris, 1360; this same right

was upheld by Henry V., (1413-22), Henry VI., (1422-61),

and Henry VII. (1485-1509)” John Rawson Elder, The

Royal Fishery Companies of the Seventeenth Century, p.

4. Maine et al., Ex. No. 186.

Q. Is there other evidence before the 17th century of

King’s ownership of the land beneath the sea? A. One

of the more impressive statements is that of Mr. Stuart A.

Moore. Moore’s History and Law of the Foreshore and

Sea Shore and the Law Relating Thereto (London, 1888),

Maine et al., Ex. No. 203, represents the first comprehens-

ive restudy of the original manuscript records since the

work of Sir Mathew Hale (circa 1667). Written to refute

royal claims to the land between high and low water

mark, it is consistently hostile to unsupported assertions

of ownership by the Crown. Nevertheless, Moore main-

tained that the King “has the soil of the sea by his pre-

rogative, and may grant it to a subject.” Moore, supra, at

p. 418. And he states that he has found “many cases” be-

fore the 17th century that “show that oyster grounds,

which are below low-water mark, pass by grant.” Moore,

supra, at p. 418 n. 1. Indeed, Sir Mathew Hale himself,

about whom I shall have a good deal to say in a moment,

concluded that the King owned the seabed on the basis

of his study of records going back as far as Edward |

(1272-1307).

124

Q. When does the issue of the King’s ownership of the

seabed begin to become central in English law? A. Well,

the first important treatise on the subject was written by

Thomas Digges during the reign of Queen Elizabeth in

1568 or 1569. It is important to keep in mind, however,

the then recently discovered invention of printing, which

accounts for the absence of printed sources before the

end of the 16th century. In any case, Digges’ treatise, en-

titled “Arguments Proving the Queens Maties Propertye in

the Sea Landes and and Shores Thereof,” reprinted in

Moore, supra, fully sustains the Crown’s assertion of pro-

priety in the sea. Digges stated, in part:

“And in this estate regall of Englande wee see that the

Kings of most auncient times haue in the right of theire

crowne helde the seas abowte this Ilande so proper and

entire unto them...

“For yt is a sure Maxime in the Common Lawe that what-

soever lande there is wthin the kinges dominion where-

unto no man cann iustly make propertye yt is the kinges

by his prerogatiue.” Moore, supra, at pp. 187, 203.

Q. What was the occasion for the writing of Digges’

treatise? A. The purpose was primarily to assert the

King’s right to ownership of the foreshore, the land be-

tween high and low water mark. Now, this claim was not

yet clearly established in English law at the end of the

16th century. It is therefore important to see how Digges

attempted to deduce the disputed claim from the indisput-

able proposition that the Crown owned the marginal sea.

Treating the sea and the foreshore alike, Digges first dealt

with the sea, stating that as the chief of all the waters it

should belong to “the cheefe the Kinge himself.’’ He then

125

126

argued that under the civil law islands arising in the sea

belong to the King as well. Finally, he maintained that

there was no difference between islands and the foreshore,

which also belong to the King. He concluded that the

King owned the property in the sea and its shore “not

only from the lowe water marck downward but also up-

ward to the full sea. . . .”” Moore, supra, at pp. 185, 187,

191-192.

Q. Is there other evidence in the 16th century confirm-

ing Digges’ view of the law? A. Yes. It appears to be

universally acknowledged during the reign of Queen Eliza-

beth (1558-1603) that the Crown owns the seabed in the

marginal sea. For example, in the admiralty case of Offic-

ium Domini c. Dulinge (1591), printed in Reginald G.

Marsden, ed., 2 Select Pleas in the Court of Admiralty,

1547-1602 (London, 1897), Maine et al., Ex. No. 201,

grantees of the foreshore bring an action against Dulinge

for erecting a weir without having obtained a license from

the admiral. It was argued that the Crown owned the sea

and hence the foreshore, as follows:

“Firstly, that you know or believe that, as well our

most serene lady Elizabeth, queen of England that now

is, as all and singular her illustrious and invincible pro-

genitors and predecessors, kings of England, from and

for time whereof the memory of man runneth not to

the contrary, have in right of their royal prerogative (and)

in right of their kingdom ever been lords and owners,

as also she, our lady Elizabeth, queen that now is, is

now owner and proprietor of the sea adjacent to and en-

circling and washing (the shores of) the realm of England,

at least for 300, 200, 100, 50, 40, 30, 20, or 10 miles

from the land or shore, towards the deep sea, and of all

and singular the rights, privileges, fruits, emoluments,

hereditaments, profits, royalties, and lordships, whatsoever

127

they may be, arising coming and issuing from the said sea

and shores, and of all lands lying beneath and under the

sea, and overflowed by it, and also of the public rivers

and ports in all and singular the maritime parts of the

kingdom of England, and of all edifices, structures, things,

and engines, used for catching fish or for any other pur-

pose, built, placed, and existing, on the said shores of

the sea or in the said harbours, lands, and places, at least

‘within the ebb and flow of the sea, up to full sea mark;

and further, that they have of their royal (and) general

prerogative, for all time possessed, occupied, and held, the

profits of (all) fisheries and salt ponds, and other the

revenues therefrom received, or in any way issuing and

arising (therefrom), and (also) all and singular the prem-

ises, the things, rights, privileges, profits, and other royal-

ties or lordships (aforesaid), whatsoever they may be, as

also she, the lady queen of England that now is, has for

all time possessed, occupied, and held (the same), and

throughout all the time aforesaid have been and are com-

monly deemed, held, and reputed as owners, proprietors,

possessors, (and) occupiers of all and singular the prem-

ises, as also she, the aforesaid lady the queen that now

is, has been and is commonly called, deemed, held, and

reputed.”” Reginald G. Marsden, 2 Select Pleas in the Court

of Admiralty, 1547-1602, pp. 174a-174b. Maine et al.,

Ex. No. 201.

Another late 16th century treatise writer, William Wel-

wood, confirms the Crown’s claims in his An Abridgment

of all Sea-Lawes (1590). Maine et al., Ex. No. 209. In

the 1613 edition, Welwood reasserts the views of Barto-

lus, who “extends and allowes for Princes and people at

the sea side, an hundreth miles of sea forth from their

coasts” if they can extend protection that far. /d. at p.

69. Distinguishing between the marginal and main seas, he

128

129

recognizes freedom of the seas only in “that part of the

maine sea or great Ocean, which is farre removed from

the just and due bounds above mentioned... .” Jd. at

p. 72.

*. * * o *”

Q. Professor Horwitz, now perhaps we are in a position

to explore your opinion about English law and practice

in the 17th and 18th centuries. Did the earlier view that

the King owned the seabed of the marginal sea continue

through that period? I might interpolate for the record a

slight change in the phrasing of that question from the

mimeographed version. A. Yes, in fact, it was frequently

reiterated and elaborated upon during this period and be-

came of major practical significance as well.

Q. On what do you base this opinion? A. First, there

are dozens of treatise writers of the period who acknowl-

edge the King’s sovereignty, dominion and ownership of

the seabed. Second, there are hundreds of official acts

based on a recognition of this position. Third, there are a

number of judicial pronouncements recognizing the Crown’s

proprietary interest in the seabed.

The first important treatise of the 17th century con-

sisted of a series of lectures on the Statute of Sewers

delivered at Gray’s Inn in 1622 by Serjeant Robert Callis.

Callis stated that by the common law of England the seas

around the British Isles, together with the shores, belonged

in property to the King. Callis stated in part (1647 ed.),

Maine et al., Ex. No. 178:

“First, touching our Mare Anglicum. .. . the King hath

therein these powers and properties, videlicet.

1. Imperium Regale.

2. Potestatem legalem.

130

3. Proprietatem tam soli quam aquae.

4. Possessionem & proficuum tam reale quam per-

sonale.

“And all these he hath by the Common Laws of

England. In the 6.R. 2. (6th of Richard the Second), Fitz.

Prot. 46. it is said, ““That the Sea is within the Legiance

of the King, as of his Crown of England; this proves that

on the seas the King hath dominationem & imperium ut

Rex Angliae, and this by the Common Law of England.”

Id. at p. 17.

* * * * *

“So I take it I have proved the King full Lord

and owner of the seas, and that the Seas be within the

Realm of England; and that I have also proved it by

Ancient Books and Authorities of the Laws, and by Char-

ters, Statutes, Customes, and Prescriptions, that the Gov-

ernment therein is by the Common Laws of this Realm

. . . But the King hath neither the properties of the Sea,

nor the real and personal profits there arising, but by the

Common Laws of England, . . . for no Law gives the

King any soil but only the Common Laws of England.”

Id. at p. 19.

Q. What was the occasion for Callis’ lectures? A.

The question of the extent of the King’s ownership of

lands under the sea was no abstract issue for 17th century

jurists. The increasing activities of the Commission of

Sewers in draining and improving lands made it necessary

to determine the Commission’s jurisdiction. As early as

1598, the Crown expressed concern over “the loss of the

Commonwealth by continuing those grounds under water,

and the loss and decay of outfalls to the sea; of the rich

131

132

profit which would arise by their recovery, and the multi-

tude of people which might be relieved and nourished

thereby. .. .” S.P. Dom., Eliz., CCLXVIII, p. 115. Maine

et al., Ex. No. 213.

Callis’ lecture was undertaken to determine the extent

of the Commissioners’ jurisdiction under the Statute of

23 Hen. VIII, which set up the Commission. He argued

that this statute “hath his extent within all the Realm of

England,” Callis, supra, at p. 20, and, as we have seen,

concluded “that the Seas be within the Realm of Eng-

land. ...” Id. at p. 19. Finally, he maintained that

“the grounds gained from the Sea pertained to the Queen,’

id., a conclusion which, as we shall see in a moment, had

vast practical significance for 17th century England.

Q. Are there other English treatise writers of the 17th

century who follow Callis’ conclusion? A. In Gerard

Malynes, Lex Mercatoria (1622), Maine et al., Ex. No. 197,

the author distinguishes between dominion over the main

sea and the marginal sea, recognizing the King’s propriety

over the latter, but not over the former. /d. at p. 186.

John Boroughs, in The Soveraignty of the British Seas

Proved by Records, History, & the Municipale Lawes of

this Kingdome (1633) (1651 ed.), Maine et al., Ex. No.

177, begins his treatise with the following assertion:

“That Princes may have an exclusive property in

the soveraigntie of the severall parts of the Sea, and in

the passage, fishing & shores thereof, is so evidently true

by way of fact, as no man that is not desparately impu-

dent can deny it.” Jd. at p. 43.

At another point he states:

“By all which presidents it is manifest that by the

common Law of the land the King is proprietory Lord of

our seas; that the seas of England are under the legeance

of the King, that the King is the soveraigne conservator

133

of the peace as well upon the sea as land; That not onely

things floating on the superficies of the water but such as

lye upon the soile or ground thereof, belong properly un-

to the King .. . /d. at p. 92.

In the First Part of the Institutes of the Lawes of En-

gland (1628), Lord Chief Justice Edward Coke declared:

“. . . if a man be upon the Sea of England, he is

within the Kingdome or Realm of England, and within

the ligeance of the King of England, as of his Crowne

of England.” /d., Section 439, at p. 260(b). Maine et al.,

Ex. No. 182.

In The Fourth Part of the Institutes of the Lawes of

England (1644) Lord Coke, as I previously observed, pub-

lished the full text of the then recently discovered Proc-

lamation of Edward I, De Superioritate Maris Angliae.

This record, Coke concluded, demonstrates “the great

prerogative and interest that the King of England hath in

the Seas of England, and . . . the antiquity of the Court

of the Admiralty of England. . . .” 4 Inst. p. 142.

The two most important and influential English treatises

of the 17th century on this subject are John Selden’s

Mare Clausum (1635) and Lord Chief Justice Mathew

Hale’s famous work De Jure Maris (c. 1667). Selden’s

treatise was a political work designed to answer the argu-

ments in favor of freedom of the seas in Hugo Grotius’

Mare Liberum (1609). Not only were Selden’s pronounce-

ments “a definite expression” of the views of Charles I,

but they “were in great measure merely a reiteration of

those opinions concerning the rights of the kings of Eng-

land to the hereditary sovereignty of the sea” that had

been expounded by James I twenty years before. Elder,

supra, at p. 70.

The first English translation of Selden’s Mare Clausum

by Marchamont Needham in 1652 was appropriately

134

entitled Of The Dominion or, Ownership of the Sea.

Selden argued “that all kinds of Law, even the most

known and approved, . . . do acknowledg and allow a

proprietie and private Dominion over the Sea, as well as

the Land.” /d. at p. 3. (All quotes are from the Needham

edition.) Citing historical sources, he concluded that the

rulers of England

“have enjoied the Dominion of (the) Sea by perpetual

occupation, that is to say, by using and enjoying it as

their own after a peculiar manner, as an undoubted por-

tion either of the whole bodie of the estate of the British

Empire, or of som part thereof, according to the state

and condition of such as have ruled it; or as an insepar-

able appendant of this Land. Lastly, that the Kings of

Great Britain have had a peculiar Dominion or proprietie

over the Sea flowing about it, as a Bound not bounding

their Empire, but (to borrow the Terms used by Surveiors

of Land) as bounded by it; in the same manner as over

the Island it self, and the other neighboring Isles which

they possess about it.” Jd. at p. 182. Maine et al., Ex.

No. 204.

Q. So Selden conceived of the Sea as part of the

territory of the Crown? A. That is correct.

Q. Does Selden recognize any limits to the King’s

Dominion? A. Yes, but they are rather vague. First

of all, he limited his own claims to the Four Seas. “The

Sea encompassing great Britain,” he wrote, “‘which in

general wee term the British Sea, is divided into four

parts, according to the four Quarters of the World.” /d.

at p. 182. Thus, for example, he claimed dominion of the

sea all the way to the French coast.

One other important limitation should be noted, how-

ever. Selden was prepared to concede that the extent of

dominion was an empirical question to be determined by

historical fact. Arguments for dominion, he acknowledged,

135

136

“are not to bee derived altogether from a bare Occupa-

tion or Dominion of Countries, whose Shores are washed

by the Sea: But from such a private or peculiar use or

enjoiment of the Sea, as consist’s in a setting forth

Ships to Sea, either to defend or make good the Domin-

ion; in prescribing Rules of Navigation to such as pass

through it; in receiving such Profits and Commodities as

are peculiar to every Kinde of Sea — Dominion whatso-

ever; and, which is the principal, either in admitting or

excluding others at pleasure.” /d. at p. 188. As a result,

he was prepared to “make diligent inquirie” into those

indicia of dominion mentioned above. /d. at p. 188. Thus

it is careless, in my opinion, to assume that Selden

thoughtlessly laid claim to everything in Britain’s name.

Q. Does Selden deal with actual exploitation of the

sea-bed? A. Yes, he does — at great length. First, it

should be emphasized that the Selden-Grotius dispute

arose out of the English-Dutch contests in the early 17th

century over fisheries, about which I will have a good

deal to say in a moment. Second, in Mare Clausum one

of Selden’s main arguments is that there must be a prop-

erty right to the seabed because its products are not in-

exhaustible. Because of fishing, he states, “less profit

ariseth. .. .”’ This “more evidently appear’s in the use

of those Seas, which produce Pearls, Coral, and other

things of that Kinde. Yea, the plentie of such seas is

lessened every hour, no otherwise then that of Mines of

Metal, Quarries of stone, or cf Gardens, when their

Treasures and Fruits are taken away.” /d. at p. 141.

Q. Is Selden’s analogy of pearls and coral to under-

sea mines usual in this period? A. Yes, I have found

many 17th and 18th century sources which conceive of

undersea fishing in the same terms as mining.

137

For example, a manuscript entitled “The Incomparable

Benefitt of the Fishery in his Maties Seas — I might add

here this was a manuscript that I saw before I realized it

was reprinted in Elder — written during the reign of Charles

II observes that the Dutch called their herring fisheries

“the principle golden myne of the United Provinces.”

Elder, supra, at p. 122. 138

Q. Can you briefly describe Selden’s influence on the

modern law of the sea? A. Professor Fenn, in his The

Origin of The Right of Fishery in Territorial Waters

(1926), Maine et al., Ex. No. 188, concludes “that the

basic principles maintained by Selden, apart from his ex-

treme claims, more nearly approximate the principles of

modern international law touching territorial waters, than

do those advanced by Grotius.” /d. at p. 196.

Professor Fulton in his work on The Sovereignty of

the Sea (1911), Maine et al., Ex. No. 189, observes “that

Mare Clausum became in a sense a law-book, an authori-

tative work to which eminent lawyers, as Lord Chief-Jus-

tice Hale and Hargrave, appealed as proving the existence

and the legality of the rights of the crown of England to

the dominion of the British seas. Even as late as the year

1830,” he concludes, “this doctrine held its place in cer-

tain recognized treatises on the law of England, together

with Selden’s definition of the extent of those seas.” /d.

at p. 374.

Q. You mentioned Lord Chief Justice Mathew Hale’s

treatise, De Jure Maris, along with Selden’s work as the

two most influential 17th century works on the extent of

the Crown’s ownership of the seabed. Can you discuss 139

Hale’s contribution? A. Hale’s De Jure Maris was writ-

ten in manuscript form around the year 1667. Though it

was well known throughout the late 17th and 18th cen-

turies, it was first published in Hargrave A Collection of

Tracts Relative to the Law of England (1787). Maine et

al., Ex. No. 194. Although there was once a dispute over

the authorship of the manuscript published by Hargrave,

that controversy seems to have been put to rest by

Moore’s discovery of a similar, earlier, manuscript indis-

putably written by Hale as early as 1636. See Moore,

supra, at pp. 318, 370; Fulton, supra, at p. 543.

Hale’s treatise, unlike Selden’s, was not a work of inter-

national law but of the common law of England in its

municipal or internal sense. Though Hale accepted Selden’s

broad conclusions, his treatise was not motivated by inter-

national political considerations. Thus, more realistically

than Selden, Hale acknowledged the Crown’s sovereignty

and ownership of the seabed only in the narrow sea ad-

joining the coast of England. He wrote:

“The narrow sea, adjoining to the coast of Eng-

land, is part of the wast and demesnes and dominions of

the King of England, whether it lie within the body of

any county or not.

“This is abundantly proved by that learned treatise

of Master Selden called Mare Clausum; and therefore |

shall say nothing therein, but refer the reader thither.

“In this sea the king of England hath a double

right, viz, a right of jurisdiction which he ordinarily exer-

ciseth by his admiral, and a right of propriety or owner-

ship. The latter is that which I shall meddle with.” 1 Har-

grave, supra, at p. 10.

Q. Before we continue this survey of the treatise litera-

ture, perhaps you would describe the legal controversies

of the 17th century in which these treatises played a part.

A. The first important controversy, which, as we have

seen, led to the publication of such books as those of

Welwood’s Boroughs’ and Selden’s, concerned disputes

over fishing, mainly between the English and the Dutch.

140

The claims to British sovereignty over the sea were based

on the actual practice of the 17th century. For example,

there is considerable evidence that other nations regularly

submitted to licensing of their fishermen by English au-

thorities. Here is Professor Elder’s description:

“That this claim to sovereignty was much more than a

mere idle assertion is clear from the fact that in the reign

of Mary (1553-58) when the fishermen of the Low Coun-

tries wished to seek new fishing grounds, there was granted

to King Philip’s subjects in Flanders a twenty-one years’

lease of the fishings about the North Coast of Ireland,

this lease being granted in consideration of a fine and

£1000 paid annually to Sir Edward Fitton, Treasurer for

Ireland. A like privilege to fish in the Irish seas was

granted under similar conditions by the same queen to

‘The Company of the Old Hans’. Foreigners desirous of

fishing in English waters were, at this time, regularly

granted licenses at Scarborough Castle.” Elder, supra, at

pp. 4-5.

When in 1635 — the same year as Selden’s Mare Clausum

was published — Charles I demanded that all Hollanders

fishing in the North Sea should be licensed by him, he

was merely reasserting, Professor Elder tells us, “this an-

cient right of the English kings to demand payment from

foreigners for the privilege of fishing in the seas surround-

ing the English dominions.” /d. at p. 5. “No foreigners

had fished off the island of Lewis till 1594 when the

Hollanders began to fish in the seas about the island by

virtue of a license, which kept them, however, at a dis-

tance of twenty-eight miles from shore.” /d. at p. 6. “It

had always been understood that for a certain distance

from the shore the fishing was reserved for native fisher-

men; the exact distance had varied considerably with vary-

ing conditions. .. .” /d. at p. 9.

141

Professor Elder does give us some general idea of the

extent of the Crown’s assertion of dominion. When the

Dutch asked and received permission to fish in Scottish

waters in 1594, it was agreed that they should not come

“within the sight of the shoar....” Jd. at p. 9. An in-

struction to an English official in 1618 fixes the limit of

Dutch fishing at 14 miles from the British coast. /d. at

p. 10. When in 1622 the Dutch gave orders “that Dutch

fishing vessels were not to approach so near the land as

to give offense to British fishermen,” Elder observes, they

were “thus tacitly agreeing to respect the ancient rule

that foreign fisherman should not come within the sight

of the British coast.” Jd. at p. 12. Finally, two manu-

scripts written in 1618 each state that up to that date

the Dutch had stayed at least 40 miles from the British

coast. /d. at pp. 19, 26.

The second important legal controversy of the 17th

century concerned the boundaries of coastal lands, which,

as I have already suggested, induced Digges, Callis and

especially Hale, to write their treatises. One legal issue, as

I previously indicated, concerned ownership of the land

between high and low watermark. But that issue is rele-

vant to our inquiry only to the extent that the answer

to it was deduced from propositions about ownership of

the seabed.

Another related question, however, is central to our

inquiry. That dealt with ownership of so-called derelict

land or lands from which the sea had receded due to

changes in the tide. The most important decision uphold-

ing the Crown’s right to derelict lands was rendered in

The King v. Oldsworth, Hillary 12 Charles I (1636-37).

Here, too, I have seen the manuscript. The decision is

fully described by Sir Mathew Hale in De Jure Maris (c.

1667), published in 1 Hargrave, A Collection of Tracts

142

143

Relative to the Law of England, p. 31 (1787), where he

writes: ““(T)he true reason of it is, because the soil under

the water must needs be of the same propriety as it is

when it is covered with water. If the soil of the sea, while

it is covered with water, be the King’s, it cannot become

the subject’s because the water hath left it.”” Hale’s con-

clusion is confirmed by a report of a further hearing of the

same case in the Exchequer Chamber in Trinity, 13

Charles I (1637). One of the decisions for the King, by

Baron Trevor, is reported as follows:

“The first point: that the King has such land jure coronae:

As the King is supreme upon the land, so he is upon the

sea; ... and all the land at first was derived out of the

Crown, and the case is the same in all commonwealths in

foreign nations. Also the King, by his prerogative, has all

things of excellency, as royal mines, so the sea being the

chiefest and most excellent of waters . . . for the same

reason the King shall have it...”

* * *

“Thirdly: The Question whether custom shall pre-

vail against the King, negatively. For as the sea was in

the King when it was parcel of the sea; now, when it is

made parcel of the dry land, it shall not be taken from

him; and the reason is, because the King shall be preferred

in such case. . . .”’ Moore, supra, at pp. 302-03.

Q. I believe that should have read “as the land was

in the King.” You said “‘as the sea.” A. That is cor-

rect.

The books are filled with grants by the King of derelict

lands. Indeed, one case turned on interpreting the King’s

grant of “all soil ground, sand, and marsh land contiguous

to the premises now overflown, or which at any time in

144

the future should be recovered by the withdrawal of the

sea.” Attorney General v. Sir Edward Farmer, 2 Lev. p.

171, Maine et al., Ex. No. 159, 2 Mod. p. 106. Maine et

al., Ex. No. 158, Sir T. Raymond p. 241 (1676). (The

original is: “omne solum, fundum, terram, arenam, terram

mariscal, contigue adjacen, praemissis, quae modo inundat,

vel aqua maris cooperta existunt, et quae and aliquod tempus

imposterum recuperat forent per relictionem maris. . . . ”’)

After the grant, 100 acres became derelict and the ques-

tion was whether they belonged to the King or the patentee.

Two of the reports state that the case was adjourned with-

out result. 2 Mod. p. 106, Sir.T. Raymond p. 241. The

third report indicates that nothing passed because the

words of the grant were too general. 2 Lev. p. 172. But

it is especially noteworthy that both sides conceded the

King’s power to grant lands under the sea. In his argu-

ment for the King; Lord Holt declared:

“This grant is of part of the sea, which being parcel of the

prerogative, ought to be expressly named; and the sea is

the soil of the king, Selden’s Mare Clausum 223....”

Raymond, p. 241.

For the grantee, it was argued:

“Here is a capacity in the King, because he is absolute

lord of the British seas, as appears by Selden’s Mare

Clausum, he may grant part of his marine patrimony as

well as his lands. 2. Here is a person capable to take;

subjects are capable of a property in the sea... .” Ray-

mond pp. 241-42.

There are hundreds of 16th and 17th century royal

grants of either overflowed lands or lands that were re-

claimed from the sea. One of the earliest was a 1571

grant by Queen Elizabeth to Thomas Digges of “‘all such

lands in or adjoining the County of Kent heretofore

covered by the sea and by work of God or otherwise

145

146

‘inned’ or recovered from the sea. ...” Patent Rolls, 13

Eliz., pt. ix., p. 297. Maine et al., Ex. No. 214. In 1603

the Crown made a grant of “Ballingmarsh, and other lands

in Kent gained out of the sea.”’ S.P. Dom., Jac. I, 1623-

25, Vol. 11, p. 531. Maine et al., Ex. No. 215. In 1616

we find a grant to Henry Gibb “of lands called Brading,

Isle of Wight, which have been much overflowed by the

sea, and are to be inclosed at his expense.”’ S.P. Dom.,

Jac. 1., LXXXVIII, p. 381. Maine et al., Ex. No. 216. In

1623 we find a warrant to Charles Barrett “to recover

marsh lands left by the sea... .” S.P. Dom., Jac. L,

CXLVIII, p. 625, Maine et al., Ex. No. 217. In 1639 the

King claimed “certain lands in Guernsey” that “have been

for sundry years past, overflowed by the sea, and that the

same are, by the laws and customs of the island, belong-

ing to us, to dispose of.” $.P. Dom., Car. I., CCCCXXIX, p.

534, Maine et al., Ex. No. 218. By the end of the century,

hundreds of grants of derelict lands had been made. In

1694 Attorney General Ward informed the Lords of the

Treasury that if “any land is derelict by the sea, such dere-

lict lands doth of common right belong to the Crowne... .’

1 Cal. Treas. Papers, p. 383. And as the century came to a

close there was a continued outpouring of royal grants of

derelict lands. See, e.g., 1 Cal. Treas. Papers, pp. 537-38

(1696) Maine et al., Ex. No. 219: 2 Cal. Treas. Papers, pp.

233-34 (1697-98). Maine et al., Ex. No. 220.

Q. Are there other treatise writers who affirm the

King’s ownership of the seabed? A. Let me emphasize

that there are dozens more in 17th and 18th century Eng-

land. For a general survey of the treatise literature, I refer

you to Fenn, supra, pp. 150-233, and Fulton, passim.

Q. Can you discuss some of the more prominent?

A. In 1665, Robert Codrington wrote His Majesties Pro-

priety and Dominion of the British Seas Asserted. Maine

et al., Ex. No. 181. He declared:

147

“First, that the Sea by the Law of Nature and Nations is

not common to all Men, but is capable of Private Domin-

ion, as well as the Land.

“. .. Second, ... that the King of Great Brittain is Lord

of the Sea Flowing about, as an Inseparable and Perpetu-

al Appendant of the British Empire.” /d. at p. 1.

In 1676, Molloy wrote De Jure Maritimo et Navali or A

Treatise of Affaires Maritime and of Commerce, in which

he recognizes the King’s ownership of the sea. Professor

Fulton notes that “it was for a long time considered the

standard work on the maritime law of England, and went

through many editions...” Fulton, supra, at p. 514.

Sir Philip Medows, in his Observations Concerning Do-

minion and Sovereignty of the Seas (1689), Maine et al.,

Ex. No. 202, while urging that England and Holland de-

fine by treaty the respective limits of their dominion over

the sea, nevertheless maintained that “‘every Prince, whose

Country adjoyns to the Sea, . . . has some portion of the

Sea belonging to him in property, as an accession of the

Land, or appendant to it, or rather incorporated with it,

like Veins and Arteries, integral Parts of the same Body.”

Id. at pp. 42-43. Moreover, he was clear that “he who

affirms a Sea-Dominion, and by it understands anything

less than Property, embraces a Cloud for Juno.” Jd. at p.

9. The difficulty was that “there be no certain Standard

in Nature, whereby to ascertain the precise Boundaries of

that peculiar Marine Territory, I am now speaking to,

which belongs to every Prince in Right of his Land; yet,

by Treaty and Agreement, they may easily be reduced to

certainty. For, as to the Judgment and Opinion of private

Persons, we cannot fetch from thence any true measure;

for though they all agree unanimously, that there is some-

thing due of Right, yet they vary in the Quantum, or

How much.” /d. at p. 43.

148

Beginning with Chief Justice Rolle’s Abridgment (1668),

— again, here is a case of translation — there is a stream

of authority by English text writers affirming the Crown’s

ownership of the seabed. See 2 Rolle Abridgment, p. 170.

Maine et al., Ex. No. 206.

All of the four most influential English common law

text writers of the 18th century concur in this conclusion.

First, Mathew Bacon, in his New Abridgment of the Law

(1736) (2d ed. 1759), Maine et al., Ex. No. 171, wrote:

“It is universally agreed, that the King hath the

Sovereign Dominion in all Seas and great Rivers; which is

plain from Selden’s Account . . .; and therefore the Ter-

ritories of the English Seas and Rivers always resided in

the King.

“And as the King hath a Prerogative in the Seas,

so hath he likewise a Right to the Fishery and to the

Soil; so that if a River as far as there is a Flux of the

Sea leaves its Channel, it belongs to the King.” 4 Bacon’s

Abridgment p. 156.

Next, Charles Viner, in A General Abridgment of Law

and Equity (1742), Maine et al., Ex. No. 208, wrote:

“The Sea is not only under the Dominion of the King...

But it is also his proper Inheritance; and therefore the

King shall have the Land which is gained out of the Sea....”

16 Viner Abridgment p. 576.

“(T)he Sea is of the Allegiance of the King and Parcel of

his Crown of England.” 16 Viner Abridgment p. 577.

Third, Sir John Comyns, whose Digest of the Laws of

England appeared in 1762, stated:

“The King and his Progenitors have at all Times been

Lords of the Sea....

“And therefore, the Dominion of the whole Sea which

surrounds England belongs to the King... .

“And the Ligeance or Dominion of the Sea belongs to

the King, as to his Crown of England... .

149

150

“And therefore, the King gives License to the Men of

Zeland, etc. to fish in his Sea... .”” 4 Comyns p. 388

(1766 ed.). Maine et al., Ex. No. 185.

Finally, Sir William Blackstone in his 1765 Commentaries

on the Laws of England recognized the King’s ownership

of lands under the sea, writing:

“.. . But, if the alluvion or dereliction be sudden and

considerable, in this case it belongs to the King: for, as

the King is lord of the sea, and so owner of the soil

while it is covered with water, it is but reasonable he

should have the soil, when the water has left it dry.” 2

Blackstone Commentaries p. 262, Maine et al., Ex. No.

174.

Q. Before we leave the treatise literature is there any-

thing you wish to add? A. I have intentionally saved

for last a review of the admiralty treatises of the 17th

and 18th centuries because they raise some technical prob-

lems which I thought best to discuss separately.

First, let me state generally that all of the writings on

admiralty of the period recognize that the King exercises

sovereignty and ownership of the Sea.

Sir Henry Spelman’s “Of the Admiral-Jurisdiction and

the Officers Thereof” was written sometime before 1643,

the year of his death. It was first published in The Eng-

lish Works of Sir Henry Spelman (1723). Maine et al., Ex.

No. 207. Spelman wrote:

“(T)he the Soyle of the Shore and Sea adjoining, is now

the King’s, and particular Lord’s according to their

Titles... .” Id, at p. 229.

In 1663, Richard Zouch, in his The Jurisdiction of the

Admiralty of England Asserted, Maine et al., Ex. No. 212,

wrote:

“(T)hat the Kings of England . . . time out of mind, have

been in peaceable possession of the Sovereign Dominion

151

of the Sea of England, and of the Islands therein situ-

ate .. . that (the Admirall of the Sea deputed by the

King of England, and all other Admiralls appointed by

him, and his Ancestors, heretofore Kings of England, have

been in peaceable Possession of the said sovereign Protec-

tion... .” Jd. at pp. 19-20.

* * * * *

“First it appears by antient Record of the time of King

Edward the first, De Superioritate Maris (of Superiority

over the Sea), That it was acknowledged by the Deputies

of the parliament of England, and of divers other Nations,

That the Kings of England time out of mind injoyed the

Dominion and Soveraignty of the English Seas... .” Jd.

at p. 38.

One year later John Exton published his The Maritime

Dicaeologie or Sea-Jurisdiction of England (1664). Maine

et al., Ex. No. 187. He stated:

“(T)he King of England and his predecessors, .. .

have had the supreme Government of the English Seas,

and the Islands thereof... .

“(T)hese things I have cited out of Mr. Selden not

only to shew here for my purpose, that the Kings of Eng-

land have had from antient times the power and dominion

over the British Seas . . . England’s Admirals have likewise

as antiently had jurisdiction under them over those mari-

time affairs, which fell sub isto regimine & dominio.” /d.

at pp. 22-23.

The same assertion of the Crown’s sovereignty over the

sea appears in John Godolphin, A View of the Admiral

Jurisdiction, pp. 28-30 (1661) (2d ed. 1685). Maine et al.,

Ex. No. 191.

152

Let me emphasize at this point that these admiralty tracts

were an accurate expression of the legal practices in the

late 17th century. We have, for example, “A Charge given

at an Admiralty Sessions held at the Old-Baily” by Sir

Leoline Jenkins, who was judge of the Admiralty Court

from 1664 to 1668 and probably the greatest admiralty

judge in English history. Jenkins carefully distinguished

between the Crown’s dominion over the territorial sea and

a more modest concurrent jurisdiction in the seas beyond.

Jenkins declared:

“Every Englishman knows, that his Majesty hath an

undoubted Empire and Soveraignty in the Seas that en-

viron these his Kingdoms, which by the ancient Statute

Laws (18 Edw. I), are called the quatuor Maria, by For-

eigners and by our modem Treaties, the British Seas. .. .

“But besides these four Seas, which are the peculiar

Care, and as it were, Part of the Domaine of the Crown

of England, his Majesty hath a Concern and Authority (in

Right of his Imperial Crown) to preserve the publick

Peace, and to maintain the Freedom and Security of Navi-

gation all the World over... .

“This Power and Jurisdiction which his Majesty hath

at Sea in those remoter Parts of the World, is but in Con-

currence with all other Soveraign Princes that have Ships

and Subjects at Sea... .” | Wynne, The Life of Sir

Leoline Jenkins, pp. xc-xci (1724) Maine et al., Ex. No.

210.

These views of the 17th century admiralty writers con-

tinued into the 18th century. In 1713, Sir Charles Hedges,

Judge of the Admiralty Court, wrote to Josiah Burchett,

Secretary of the Admiralty, after the Lords of Admiralty

asked his opinion as to the limits of the British seas.

Hedges had no doubt that the four seas “are within her

Majesty’s sea dominions, as queen of Great Britain.” He

153

154

noted that “‘All nations pretend to dominion at sea on

their coasts; some extend it to no further than they can

reach, some sixty miles, some a hundred or more, with

regard to the seas which wash their borders, or opposite

shores.” Though he could not fix the exact boundaries of

British dominion, he concluded “that the British sovereign-

ty has in all ages been asserted to the utmc.< extent of

those seas which have been possessed by the Brittains and

Irish in the vast oceans of the North and West.” R.G.

Marsden, ed., 2 Documents Relating to Law and Custom

of the Sea pp. 231-33 (1916). Maine et al., Ex. No. 199.

Q. You mentioned a moment ago that you had re-

served your discussion of admiralty writings for the end

of your survey of the treatise literature because there were

technical questions that you wished to discuss. Can you

tell us what these technical problems are? A. Most of

the admiralty treatises just referred to were written in the

midst of the great 17th century controversy over the juris-

diction of admiralty. It is necessary, I think, to review this

controversy in order to correct certain misconceptions that

appear in the English case of Queen v. Keyn, L.R. 2 Exch.

Div. p. 63 (1876) Maine et al., Ex. No. 160.

Q. Can you briefly describe that case? A. By a

7- vote, the court held that the Central Criminal Court

had no jurisdiction to try a foreigner for a manslaughter

committed on board a foreign ship sailing within three

miles of the English coast. In several of the majority opin-

ions, especially that of Sir Alexander Cockbum, there is

puzzling language indicating that the realm of England

stops at low water mark. What I hope to show is that it

would be a serious misreading of history to follow the

majority’s conclusion that admiralty did not have jurisdic-

tion over cases of this sort or to concur in the court’s

assertion that the traditional jurisdiction of admiralty was

not regarded as territorial.

155

Q. Can you give us your reasons for this conclusion?

A. There are two separate lines of historical development

I should like to examine. The first deals with restrictions

imposed on the land jurisdiction of admiralty, mainly

during the 17th century, though with strong roots earlier.

The second deals with the transfer of the criminal juris-

diction of admiralty to royal commissioners and then to

the regular criminal courts of England.

In two statutes passed during the reign of Richard II,

Parliament attempted to limit the jurisdiction of admiral-

ty. 13 Rich. IL, c. 5. (1389); 15 Rich. IL, c. 3 (1391).

The latter statute denied the Admiral jurisdiction over

“all manner of Contracts, Pleas, and Quarrels, and of all

other things done, or arising within the bodies of Coun-

ties, as well by Land as by Water....”

These statutes became the basis for the great struggle

in the early 17th century led by Sir Edward Coke to re-

strict the land jurisdiction of the Admiral.

Q. What were the reasons for the struggle? A.

First, as Coke pointed out (4 Inst. p. 134), The Admiral

could not have jurisdiction “within any County of the

Realm” because there was no trial by jury in admiralty.

The County, it should be emphasized, was the adminis-

trative unit out of which juries were chesen. Second, as

we shall see in greater detail in a moment, there was

great opposition by the common lawyers to application

of admiralty civil law doctrines within the land jurisdic-

tion of common law courts.

Q. What conclusions do you derive from this branch

of your historical survey of admiralty? A. There is

much talk in the 17th century about admiralty’s juris-

diction being limited to “outside the Realm,” which ap-

parently has misled many modern jurists such as Sir

Alexander Cockburn in Queen v. Keyn into believing that

156

157

the Admiral’s jurisdiction was conceived of as being extra-

territorial. In fact, however, the “out of the realin’” form-

ulation had an entirely different meaning for the 17th

century jurist. It was only a short-hand for “out of the

body of a county of the Realm” which in turn merely

raised the problem of the absence of jury trials in admir-

alty. Since there was no county from which a jury could

be assembled, there could be no jury trial according to

the common law model.

On the other hand, 17th century jurists recognized that

the “out of the realm” formula did not deny a concep-

tion of the territorial seas, for it only meant that the

territorial sea was “out of the body ofa county of the °

Realm.” Callis, for example wrote:

“But yet I am likewise of opinion, That a new Island

risen from the bottom of the sea, although it be within

the Realm, yet it is neither within county, Parish nor

Town of this Realm, till the King by his Edict or Procla-

mation have so declared it.” Callis, supra (1647 ed.), at p.

22. (Maine et al., Ex. No. 178.)

Similarly, Sir Mathew Hale was explicit in asserting that

“the narrow sea, adjoining the coast of England, is part

of the wast and desmesnes and dominions of the king of

England, whether it lie within the body of any county or

not.” 1 Hargrave, Law Tracts, p. 10. (Maine et al., Ex.

No. 194.)

Even so staunch an opponent of admiralty’s inland

jurisdictional claims as Sir Edward Coke agreed that the

Admiral’s jurisdiction in the narrow sea was within Eng-

land’s territorial waters. Thus, while Coke opposed all in-

land admiralty jurisdiction because the Statutes of Richard

II restricted the Admiral to cases outside “bodies of coun-

ties,” he nevertheless agreed that “if a man be upon the

Sea of England, he is within the Kingdom or Realm of

158

England. . . .” First Institute, pp. 260(b)-261(a), Sec.

439. (Maine et al., Ex. No. 182.)

In conclusion, the fact that the Admiral’s jurisdiction

was occasionally spoken of as being “outside the Realm”

should not mislead us into believing that admiralty juris-

diction was regarded as extra-territorial within the narrow

seas.

Q. Can you now discuss the transfer of criminal

jurisdiction from admiralty? A. This is a crucial step

in any understanding of Queen v. Keyn. The first change

occurts in the statute 28 Henry VIII, c. 15 (1536), which

recited that “traitors, pirates, thieves, robbers, murderers,

and confederates upon the sea” often escaped punishment

because under the civil law administered by admiralty

judgment of death could be entered only after the de-

fendants either confessed their offenses or these offenses

were proved by impartial witnesses.

The statute required that the King appoint Commis-

sioners to try most major offenses committed at sea, ac-

cording to the common law” as if any such offences had

been committed or done in or upon the land... .” It

further provided for trial by jury.

The statutes of 5 Elizabeth, c. 18 (1562-3), and 39

George IIl., c. 37 (1799), further expanded the jurisdic-

tion of the Commissioners to include all crimes.

Finally, the statute of 4 & 5 William IV., c. 36, s. 22

(1834), places all offences formerly within the admiralty

jurisdiction in either the Central Criminal Court or the

ordinary judges of the land.

In Queen v. Keyn, Sir Alexander Cockburn declared

that the result of the case turned on determining what

the ancient admiralty jurisdiction encompassed. If there

was jurisdiction in admiralty before the Statute of 28

Henry VIII, c. 15 (1536), to try foreigners for crimes

159

committed on the seas, then he conceded that this power

over criminal offenses was transierred to Commissioners

under the 1536 Statute. Likewise, he conceded that this

jurisdiction would again have been transferred from the

Commissioners to the Central Criminal Court by the Sta-

tute 4 & 5, William IV, c. 36, s. 22. Here are Cockburn’s

words (2 Exch. Div. at pp. 168-69):

“We must, therefore, deal with this case as one

which would have been under the ancient jurisdiction of

the admiral. But the jurisdiction of the admiral, though

largely asserted in theory, was never, so far as | am aware

— except in the case of piracy, which, as the pirate was

considered the communis hostis of mankind, was triable

anywhere — exercised, or attempted to be exercised, in

respect of offences, over other than English ships. No in-

stance of any such exercise, or attempted exercise, after

every possible search has been made, has been brought to

our notice. Nor, for the reason already given, could such

jurisdiction be so exercised consistently with legal principle.

And though, by 25 Henry 8, c. 15 (sic) “ — that should

be 28 — “the trial of offences previously within the juris-

diction of the admiral was transferred to commissioners

to be appointed by commission from the King, under

which the trial was to be held in such county as the com-

mission should direct, and, ‘according to the common

course of the laws of the realm, used for such offences

when done upon the land within the realm,’ it is, | think,

beyond dispute, that all that was effected by this statute,

or by those that have succeeded it, as regards jurisdiction,

was a transfer of the criminal jurisdiction of the admiral,

such as it was, to Courts proceeding according to the

ordinary procedure of the common law — not an extension

of it. The statute created no new offence, effected no exten-

sion of jurisdiction. It simply transferred the jurisdiction

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161

of the admiral, talem qualem, to the Common Law Courts,

to be exercised according to the procedure of the com-

mon law. As to this the received authorities are, as I shall

have occasion more fully to shew hereafter, entirely agreed.

The Central Criminal Court Act, 4 & 5 Wm. 4, c. 36,

which gives power to try ‘offences committed on the

high seas and other places within the jurisdiction of the

Admiralty of England,’ has, obviously, carried the matter

no further. If the admiral had not jurisdiction as to of-

fences committed on foreign ships, the commissioners, to

whom the jurisdiction was transferred by the statute, must

be equally without it.”

Cockburn disputes the clear statement in 2 Hale, Pleas

of the Crown, p. 12, that admiralty exercised such terri-

torial criminal jurisdiction. He argues that, of the eight

cases cited for Hale’s proposition, “four were cases of

piracy, which may have been dealt with on the principle

that piracy is triable anywhere and everywhere (and, in

any case,) two of the latter cases (may have been) com-

mitted within the body of a county, and therefore triable

at common law.” 2 Exch. Div. at p. 163.

Q. Does the historical evidence support Cockburn’s

understanding of the history of admiralty’s criminai juris-

diction? A. No, I believe it does not. First, it seems

to me that Cockburn has strangely altered the burden of

historica! proof. It is very clear, it seems to me, that the

Statute of 28 Hen. VIII, c. 15 (1536), intended to trans-

fer admiralty jurisdiction over “traitors, pirates, thieves,

robbers, murderers, and confederates upon the sea” with-

out regard to nationality. We have already seen that there

is an abundance of evidence demonstrating that the nar-

row seas were conceived of as part of the territory of

England. And since admiralty records only begin in 1524,

failure to find any confirmatory evidence among the very

162

sparse records still in existence for the period before 1536

ought not to alter the very explicit statement of the sta-

tute. In any event, as I shall show, there is some addi-

tional affirmative evidence of the practice before 1536.

And there is good reason to believe that virtually all

major offences committed on the seas by foreigners were

indiscriminately punished as piracy.

Now, let me refer to the evidence that I have suggested.

First, I have been able to find two cases in which foreign-

ers were prosecuted for crimes before 1536. In 1370, Hugo

de Peyntour, a Venetian, was tried in admiralty for both

treason and piracy. He was acquitted by a jury of mer-

chants and others. 1 R.G. Marsden, Select Pleas in The

Court of Admiralty, p. xlvii. In 1455 Runball Harrysone,

a Dutchman (“Duchemanus”), was tried for murder before

the Admiral. He too was acquitted. 1 The Black Book of

the Admiralty, p. 255 (ed. Sir Travers Twiss). Maine et

al., Ex. No. 173.

Q. For the reporter, Professor He-witz has an addi-

tional sentence, not in the prepared testimony, which he

would like to add at this point. A. In this connection,

I would like to add one comment not in my prepared

testimony. The report of Harrysone’s trial referred to him

as Runball Harrysone, Dutchman of Ipswich. It is barely

possible that he was an English subject-of Dutch origin,

but it is more likely that he was an alien resident at

Ipswich.

In addition, there still exists a document written in

1361 in which King Edward III revokes a Commission to

try crimes committed on the seas. The grant of the Com-

mission was occasioned not only by piracy but by the

murder of 100 people aboard a ship going to Flanders.

While the original commission gave the common law

judges jurisdiction “to hear and determine according to

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164

the law and custom of our realm diverse trespasses and

felonies committed and perpetrated . . . by certain of our

subjects and others, upon the sea, against certain mer-

chants, as well English and foreign . . .,” the Commis-

sion was recalled because “according to the law and

custom of our realm, felonies, trespasses, or injuries done

upon the sea ought not to be dealt with or determined

before our justices at the common law, but before our

Admirals according to the maritime law . . .”” Thus, it

seems fairly clear that admiralty power was not limited

to English nationals before 1536. 1 R.G. Marsden, Law

and Custom of the Sea. pp. 84-89. Maine et al., Ex. No.

198.

There is considerable evidence in the 17th century that

confirms the general power of admiralty to try foreigners

for crimes within the territorial seas. A 1681 Statute of

Scotland, where the Stat. of 28 Henry VIII did not apply,

grants to the High Admiral jurisdiction:

“ ,. . for the more ready and quick dispatch of justice

in maritime and seafaring causes, foreign and domestic,

whether civil or criminal, within this realm, and over all

persons in so far as they are concerned in the same, both

to natives and strangers . . .”’ Baker, The Office of Vice-

Admiral of the Coast, p. 125, Maine et al., Ex. No. 172.

That the admiralty criminal jurisdiction in the 17th cen-

tury continued to be based on a territorial conception

within the narrow seas can be seen from the various

writings of the great admiralty judge, Sir Leoline Jenkins

(1664-1668). In “‘A Charge given at an Admiralty Session

held at Old-Baily.”” Jenkins underlined the identity between

the land jurisdiction of common law courts and the sea

jurisdiction of Admiralty. He declared:

“Therefore you must take this one general Rule along with

you, that whatever is Treason, whatever is Felony .. .

165

whatever is Misprison, or an Abuse committed upon the

Land, and is enquirable by a Jury within the Body of a

County, the same Thing being committed upon the Sea,

or within the Limits of this Commission, must be reputed

and adjudged Treason, Felony, Misprison, Offence, Misde-

meanour, Nusance, Abuse, etc. it is the same Thing it

carries with it the same Guilt, it is liable to the same

Degrees of Punishment, and you are bound to enquire of

it, and present it.”” 1 Wynne, The Life of Sir Leoline

Jenkins, p. xcvii. Maine et al., Ex. No. 210.

Among the papers of Sir Leoline Jenkins, we find two

more instances of foreigners being tried by admiralty com-

missioners for criminal offenses other than piracy. In a

letter to Sir Thomas Exton, which appears to have been

written in 1677, Jenkins advises Exton on a charge he is

about to give to a grand jury. Although the defendant’s

nationality is not stated, the first subject of the charge

strongly indicates it involved a foreigner, for there is a

long discussion of punishment for not striking the flag

to acknowledge the Crown’s sovereignty. Of the second

subject, mayhem, Jenkins writes:

“For the Mayhem, that the Admiral hath Cognis-

ance of it, if committed upon the High Seas . . . There-

fore you may give it in Charge to the Jury, to enquire of

all Mayhems committed within the Jurisdiction of the

Admiralty. If they find the Fact, it is my humble Opin-

ion, that as to the Form of the Indictment, the Verdict,

and whole Manner of Proceedings, it ought to be the very

same as if the Indictment were preferr’d at the King’s-Bench,

for a Mayhem committed within the Body of the County

of Middlesex. .. .” 2 Wynne, The Life of Sir Leoline

Jenkins, p. 709. Maine et al., Ex. No. 211.

In a second case, Jenkins advises the Lords Commis-

sioners of the Admiralty concerning charges to be levelled

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167

against a Dutch captain, who had detained and robbed

two English ships. There is, however, no mention of bring-

ing piracy charges. Jenkins writes:

“As for the Way of punishing the Captain, for his

Violences and Menaces of Torture and Death; as also

those of his Officers, for torturing our Pilot with such

barbarous and unmanly Cruelties; the regular Way is, at

a Sessions of Oyer and Terminer for the Admiralty (under

the statute of 28 Hen. VIII.).”” 2 Wynne at p. 774.

The failure to consider the issue of nationality in dis-

cussions of admiralty criminal jurisdiction continued into

the 18th century as well. In 1725, the English Attorney

and Solicitor-General were asked for an opinion on the

power of the common law court to punish a person who

from the shore of the colony of Barbadoes had fired on

a ship about two miles into sea, killing one mate and

wounding another. Without at all considering the ques-

tion of nationality, the crown law officers wrote:

“We are of opinion, that the (person) who fired the

shot cannot be tried for the death of the mate in any

court of common law, but that he ought to be tried for

the same either in the court of admiralty at Barbadoes, or

by special commission under statute of 11th and 12th W.

3. cap. 7 (which, in effect applied the statute of 28 Hen.

VIII to the English colonies) which is now the most

known and usual method of proceeding in cases of felon-

ies done upon the sea in those parts.” Chalmers, Opinions

of Eminent Lawyers on Various Points of English Juris-

prudence, p. 525. Maine et al., Ex. No. 180.

Still another piece of evidence suggests that in the 18th

century lawyers acknowledged the power of admiralty to

try criminals for sea crimes without regard to nationality.

In 1761, the King’s Advocate, Attorney and Solicitor-

General delivered an opinion to the Lords Commissioners

168

for Trade and Plantations concerning which court had

jurisdiction to try “the master, mate, and several of the

crew of a privateer, charged with the murder of some

men” on an English ship within New York Bay. Nowhere

does the opinion even allude to the nationality of the de-

fendants. Yet, the Crown law officers declared:

“We are of opinion, that the statute 28 Henry

VIII. does extend to the case of murder committed any

where on the high seas; and consequently that a commis-

sion might issue in the present case. . . .”’ Chalmers,

Opinions of Eminent Lawyers on Various Points of Eng-

lish Jurisprudence, p. 526.

In conclusion, let me state that although the evidence

is not overwhelming, to the extent that the majority deci-

sion in Queen v. Keyn turns on the historical scope of

the admiralty criminal jurisdiction, it is probably incorrect.

Q. Apart from the question whether Queen v. Keyn

was rightly or wrongly decided, is the decision inconsist-

ent, in your opinion, with the proposition that the Crown

as a matter of English law owned the seabed under the

English marginal seas? A. No, my opinion is that the

decision is entirely consistent with the proposition that

the Crown owned the seabed under the marginal seas.

Keyn is a decision dealing with the sole question whether,

without a statute conferring jurisdiction, the Central Crimi-

nal Court had jurisdiction to try a foreigner for a crime

under English law which was committed on board a for-

eign ship within three miles of the English coast. The

Court held that in absence of a statute, the Central Crimi-

nal Court had no jurisdiction to try a foreigner in such

circumstances.

A close examination of the opinions shows that the

question of criminal jurisdiction was the only question

involved in the case. Furthermore, such an examination

169

shows that all of the judges acknowledged Crown rights in the

the marginal sea, and that a majority of them considered

that the marginal sea was part of the territory of England.

Judges Lindley, Denman, Grove, Amphlett, Brett and

Coleridge, the six dissenters, held that there was jurisdic-

tion in the court. Their decisions supported the existence

of a territorial sea.

Lindley, J., held that there was criminal jurisdiction,

noting that:

“It is laid down in English law books of the highest

authority that the seas adjoining the English coast are

part of the realm of England, and are subject to the do-

minion of the Crown. Indeed there is considerable author-

ity for stating that those seas are to some distance part

of the property of the Crown, subject to the right of the

public freely to navigate them.” 2 Exch. Div. at p. 86.

Maine et al., Ex. No. 160.

He stated that it is not necessary for the purposes of

the case to affirm this latter proposition to its full extent

and it is sufficient to show that the English criminal law

extends over the seas in question. /d.

Lindley cited with approval Bishop’s Criminal Law S.

104 (Sth ed.) to the effect that “the sea adjoining the

coast is within the territorial sovereignty which controls

the adjacent shores.”” 2 Exch. Div. at p. 89. He also stated

that “the weight of authority is entirely in favour of a

general dominion for all purposes consistent with peace-

ful navigation.” /d. at p. 90. He concluded his opinion

by holding:

“(T)he waters around the coasts of England are under the

protection of English law, and . . . all persons, whether

English or foreign, who recklessly navigate those waters

and thereby cause others to lose their lives. are punish-

able ty the criminal law of this country.” /d. at pp. 98-

99.

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171

Denman, J., held that there was jurisdiction on two

grounds: (1) that the offense was committed on board a

British ship because the defendant rammed a British ship

causing a death on the British ship, and (2) that a for-

eigner committing manslaughter in the course of naviga-

tion of a foreign ship within three miles of the coast is

subject to criminal jurisdiction. /d. at p. 108. As to this

second branch of his decision he stated that he agreed

with the judgment of Sir Baliol Brett. /d. I will discuss

Brett’s opinion shortly.

Grove, J., held that there was jurisdiction in this case.

He held that there is jurisdiction within the marginal sea

subject to a right of passage; but that the right of passage

must be “exercised, with due regard to the safety of the

subjects of the nation over whose territorial waters the

right is to be used.” /d. at p. 114.

He reviewed the publicists and categorized them as

follows:

“Ist. Those who affirm the right in what are

generally termed territorial waters to extend at least to

the distance at which it can be commanded from the

shore or as far as arms can protect it.

“2ndly. Those who, assigning the same origin to

the right, recognized it as being fixed at a marine league

of three geographical miles from the shore.

“3rdly. Those who affirm the right to be absolute

and the same as over an inland lake, or, allowing for the

difference of the subject-matter, as over the land itself.

“Athly. Those who regard the right as qualified:

And the main if not only qualification that seems to me

fairly deducible from the authorities is, that there is a

right of transit or passage, and as incident thereto pos-

sibly a right of anchorage when safety or convenience of

navigation requires it, in the territorial waters for foreign

ships.” /d. at p. 110. He also stated:

“In addition to the authority of the publicists, this

three-mile range, if not expressly recognized as an absolute

boundary by international law, is yet fixed on, apparently

without dispute, in Acts of Parliament, in treaties, and in

judgments of courts of law in this country and America.”

Id. at p. 111.

He cited with approval the English case of Whitstable

Fishers v. Gann, 11 C.B. (N.S. 337), which stated: “The

soil of the seashore to the extent of three miles from the

beach is vested in the Crown.” 2 Exch. Div. at p. 112.

Amphlett, J.A., held that there was jurisdiction in this

case. He drew the following conclusions from the opin-

ions of “almost every accredited writer on international

law who has dealt with this question of maritime terri-

tory” (id. at p. 122);

“1. That all these writers, and, as far as I can see,

with complete unanimity, acknowledge the right of a

maritime state to an extension of their territory over

some portion of the adjacent sea.

“2. That, although there is found a great variety of

opinion among these writers as to the distance to which

such maritime territory should be allowed, not one of

them puts such distance at less than three miles.

“3. That all the earlier writers, including Grotius,

the vigorous adovcate of the free navigation of the high

seas, and many of the later writers, maintained that with-

in the zone of three miles the state had, without qualifi-

cation, a proprietary, as well as a territorial, right, so

that it might at its pleasure exclude foreign ships from

passing along the same; but that others of the later writ-

ers contended that the state had a territorial, but not a

proprietary, right over the zone, or that, at all events,

the innocent use of the zone by foreign ships for the

purpose of navigation could not without wrong be inter-

fered with.

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174

“4. That not one of the last-mentioned writers

maintained that the sovereign state had no jurisdiction to

prevent what I may call external wrong committed by

them on board a foreign vessel within the zone. Indeed

the writers most relied upon for the defence, such as

Ortolan and Calvo, I think, imply, if they do not say,

the contrary, for while arguing against the right of the

maritime state to exclude foreign ships from the zone,

they all appear to me to admit in substance that they

have the right to make laws of ‘police and surety.’ ” /d.

at pp. 122-23.

Brett, J.A., also held that there was jurisdiction. After

reviewing the foreign commentators, he concludes:

“(A)II foreign writers on international law . . . agree in

asserting that, by the consent of all nations, each, which is

bordered by open sea, has a right over such adjacent sea as a

territorial sea, that is to say, as a part of its territory; and that

they all mean thereby to assert that it follows, as a conse-

quence of such sea being a part of its territory, that each

such nation has in general the same right to legislate and

to enforce its legislation over that part of the sea as it

has over its land territory.” /d. at p. 135. And he further

stated that while there is some dispute among writers as

to the extent of the teritorial sea, “all are agreed as to

three miles.” /d. at p. 136. He then held:

“Considering the authorities I have cited, the terms

used by them, wholly inconsistent, as it seems to me, with

the idea that the adjacent country has no property, no

dominion, no sovereignty, no territorial right; and consider-

ing the necessary foundation of the admitted rights and

duties of the adjacent country as to neutrality, which have

always been made to depend on a right and duty as to

its territory, I am of opinion that it is proved that, by

the law of nations, made by the tacit consent of substan-

tially all nations, the open sea within three miles of the

175

coast is a part of the territory of the adjacent nation, as

much and as completely as if it were land a part of the

territory of such nation.” Jd. at p. 143. He said that this

is subject to the right of free navigation of all nations, if

such navigation is with an innocent or harmless intent or

purpose. But such right of free navigation, he said,

“by no means derogates from the sovereign authority over

all its territory of the state which has agreed to grant this

liberty, or easement, or right to all the world.” /d. at p. 144.

Lord Coleridge, C.J., held that there was jurisdiction in

the case. He declared,

“I think the offence was committed within the realm of

England; and if so, there was jurisdiction to try it.” Jd.

at p. 152.

The offense was committed within three miles of the low-

water mark and, therefore, he said, upon English territory.

Id.

He stated that Brett and Lindley

“have shewn that by a consensus of writers, without one

single authority to the contrary, some portion of the

coast waters of a country is considered for some purposes

to belong to the country the coasts of which they wash.”

Id. at p. 153. He noted that Lord Coke, Lord Stowell,

Dr. Lushington, Lord Hatherley, L.C., Erle, C.G., and

Lord Wensleydale had squarely held that

“the realm of England, the territory of England, the prop-

erty of the State and Crown of England over the water

and the land beneath it, extends at least so far beyond

the line of low water on the English coast as to include

the place where this offence was committed.” /d. at p.

155.

I have just examined the opinions of the six dissenters

who held that there was jurisdiction in the case. Their

opinions show that they believed that there was a terri-

torial sea of at least three miles in width.

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177

I will now examine the judgments of the seven Judges

who held that there was no jurisdiction — Bramwell, Lush,

Phillimore, Kelly, Cockburn, Pollock and Field.

Two of these, Bramwell and Lush, seem clearly not to

have based their conclusions on a denial of the concep-

tion of a territorial sea.

Bramwell was of the opinion that since there was great

uncertainty on the question of the historical bounds of

England’s sea criminal jurisdiction, the decision ought to

be left to Parliament. He appears to have reached his deci-

sion on the very narrow ground that all ambiguity in a

criminal statute should be resolved against the State. If

the law were clear, he wrote,

“we ought to declare it, regardless of consequences. But

if it is a measuring cast which opinion is right, I think

we ought to leave it to the legislature, and not make a

law ourselves with imperfect powers. On the ground, then,

that no such jurisdiction as now claimed has ever been

claimed before, I hold that none exist.’”’ 2 Exch. Div. at

p. 150.

There is nothing in Bramwell’s opinion that even re-

motely suggests that he deduced this conclusion from a

denial of a conception of a territorial sea, let alone that

he believed the Crown had no rights in marginal waters.

Lush affirmatively believed that there was clearly a

conception of territorial water in international law. He

wrote:

“I think that usage and the common consent of nations,

which constitute international law, have appropriated these

waters to the adjacent State to deal with them as the

State may deem expedient for its own interests. They are,

therefore, in the language of diplomacy and of internation-

al law, termed by a convenient metaphor the territorial

waters of Great Britain, and the same or equivalent phrases

are used in some of our statutes denoting that this belt

178

technical sense of that term. More significantly, neither

of sea is under the exclusive dominion of the State.” 2

Exch. Div. at pp. 238-39.

However, Lush seemed also to believe that it was be-

yond the historical function of the common law to define

the extent of the State’s sea dominion. He wrote:

“(T)he dominion is the dominion of Parliament, not the

dominion of the common law. That extends no further

than the limits of the realm. In the reign of Richard II.

the realm consisted of the land within the body of the

counties. All beyond low-water mark was part of the high

seas. At that period the three-mile radius had not been

thought of. International law, which, upon this subject

at least, has grown up since that period, cannot enlarge

the area of our municipal law, nor could treaties with all

the nations of the world have that effect. That can only

be done by Act of Parliament. As no such Act has been

passed, it follows that what was out of the realm then is

out of the realm now, and what was part of the high

seas then is part of the high seas now; and upon the high

seas the Admiralty jurisdiction was confined to British

ships. Therefore, although, as between nation and nation,

these waters are British territory, as being under the ex-

clusive dominion of Great Britain, in judicial language they

are out of the realm, and any exercise of criminal juris-

diction over a foreign ship in these waters must in my

judgment be authorized by an Act of Parliament.”’ 2 Exch.

Div. at p. 239.

Thus, the opinions of both Bramwell and Lush clearly

recognize that Parliament has power over the territorial

sea. Both voted to dismiss the indictment because of their

view that the court lacked jurisdiction in the narrow,

opinion is ultimately grounded upon a rejection of the

historical conception of Crown rights over the marginal

sea, and at least Lush expressly recognized the existence

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180

of those rights. The result is that there was a civar major-

ity of the Court which recognized a territorial conception

of the sea.

There is language in the judgments of the remaining five

judges that does deny a fully territorial conception of the

marginal sea. There are reasons, however, for doubting

the force of some of this general language. (Such language

is in any event pure dictum with respect to Crown pro-

prietary rights, since they were in no way involved in the

case.)

For example, at least four of these five judges believed

that Parliament had the power to impose criminal juris-

diction on foreigners for acts committed in the marginal

sea. Sir Alexander Cockburn’s opinion, in which Pollock

and Field concurred, explicitly stated that Parliament could

confer such jurisdiction. 2 Exch. Div. at p. 231. Phillimore

appears to have agreed. /d. at pp. 68, 83-86. Kelly said

nothing on this point.

Further, Sir R. Phillimore expressly recognized import-

ant Crown rights in the marginal sea. In answer to his

own question, “Is a state entitled to any extension of

dominion beyond low-water mark?” (/d. at p. 71), he

replied:

“(T)he answer may be given without doubt or hesitation,

namely, that a state is entitled to a certain extension of

territory, in a certain sense of that word, beyond low-

water mark.” /d.

Later, he amplified this view:

“The consensus of civilised independent states has

recognised a maritime extension of frontier to the distance

of three miles from low-water mark, because such a fron-

tier or belt of water is necessary for the defence and se-

curity of the adjacent state.

“It is for the attainment of these particular objects

that a dominium has been granted over this portion of

the high seas.”’ /d. at p. 81.

181

He then stated that the state does not, however, have

all the same rights of jurisdiction and property over this

belt of sea as it has over land; the state has the right to

refuse passage to foreigners over its territory by land but

does not have the same right to prevent the passage of

foreign ships over the marginal portion of the high seas.

The defense and security of the state do not, he stated,

warrant the exclusion of peaceable foreign vessels from

passing over these waters, and the custom and usage of

nations has not sanctioned it. Jd. at pp. 81-82.

Thus Phillimore did not, even by way of dictum, say

anything inconsistent with recognition of some Crown

proprietary rights in the marginal sea; he said only that

the Crown’s rights are founded on defense and security

and that they are different from Crown rights on land

in that they are limited by, at least, the right of passage

of foreign ships.

Kelly, C.B., held that there was no jurisdiction in the

case. He stated that he agreed substantially with the opin-

ions of both Cockburn and Phillimore. He also said that

he had participated in the preparation of the opinion of

Phillimore and that Phillimore’s judgment could be taken

to be “his judgment and my own.” /d. at p. 151. Kelly,

therefore, held, along with Phillimore, that while there are

some acknowledged Crown rights in the territorial or

marginal sea, those rights are subject to the right of free

passage.

Kelly’s opinion shows that he limited his holding to

the nonexistence of criminal jurisdiction over foreign

ships and based the holding on the right of free passage:

“(I)nasmuch as it cannot be disputed, that the high seas,

that is to say, all the whole seas of the world below low-

water mark, are open to the whole world, and that the

ships of every nation are free to navigate them, I hold

that no one nation has the right to exercise criminal

182

183

jurisdiction over the ships of other nations, or the sub-

jects of other nations within such ships, navigating the

high seas, that is, passing through the high seas (without

casting anchor or stopping) between one foreign port and

another, unless by treaty, or express agreement, or unless

by some uniform, general, and long-continued usage, evi-

denced by the actual exercise of such jurisdiction acqui-

esced in by the nation or nations affected by it.” /d. at

p. 151.

Kelly acknowledged a jurisdiction for some purposes,

other than criminal jurisdiction over foreigners on foreign

ships, within the territorial sea:

“The limited jurisdiction exercised within three miles,

or some other space or distance, for some purposes has

been established and sanctioned by a long-continued actual

exercise of it by the one nation, acquiesced in by all

others against or in respect of whom it has been claimed.

But the right to seize and try in England for an offence

committed on the high seas by a foreign commander of

a foreign vessel on a foreign voyage, can, in my opinion,

no more exist than the right to seize and try in England

any foreigner for an act done in his own country, a for-

eign territory, which act may happen to constitute a

criminal offence by the law of England.” /d.

Cockburn, C.J., held that there was no jurisdiction in

the case. Analysis of this opinion shows that Cockburn

did not hold that there were no Crown rights in the

marginal sea. It is true that Cockburn based his holding

in part on the conclusion that the marginal sea was not

within the realm in the sense of full territorial sovereign-

ty — just as, | might remark in passing, the modern view

of rights in the continental shelf does not involve full

territorial sovereignty. However, Cockbum’s opinion

acknowledges the existence of Crown rights in the mar-

ginal sea for purposes other than criminal jurisdiction over

184

foreigners on foreign vessels. He made it clear that the

case involved only the question of criminal jurisdiction

over foreigners on foreign ships in the marginal sea in the

absence of a statute, and not the question of dominion

over the marginal sea for other purposes:

“This unanimity of opinion that the littoral sea is, at all

events for some purposes, subject to the dominion of the

local state, may go far to shew that, by the concurrence

of other nations, such a state may deal with these waters

as subject to its legislation. But it wholly fails to shew that, in

the absence of such legislation, the ordinary law of the local

state will extend over the waters in question — which is the

point which we have to determine.” /d. at p. 193.

Much of the evidence cited by Cockburn establishes

the existence of Crown rights and was distinguished by

him merely on the grounds that it was not evidence speci-

fically for criminal jurisdiction in the particular circum-

stances of this case. For example, in reference to legisla-

tion dealing with foreign shipping, he stated:

“(Dt is undoubtedly a strong assertion of dominion over

foreign ships, and is a striking instance of the adoption

of the three-mile principle. It may, however, be doubted

whether the enactment would apply to a ship on a for-

eign voyage.” Jd. at p. 218.

He acknowledged the statement of Dr. Lushington in The

Leda, Sw. Adm. 42, that “the limits of the United King-

dom (are) the land of the United Kingdom and three

miles from the shore.” And he distinguished it on the

following grounds:

“We have here to a certain extent a judicial recog-

nition of the three-mile principle, but the decision had

not, it should be observed, any reference at all to foreign

ships.” 2 Exch. Div. at p. 223.

He distinguished the case of General Iron Screw Colliery

Co. v. Schurmanns, | J.&H. 180, on similar grounds:

185

“There is here, no doubt, a clear recognition of the

three-mile principle for certain purposes; but, as in the

preceding case, the foreigner was seeking redress by the

application of the local law. . . . (T)he language of the

learned Vice-Chancellor is certainly very far from saying

that the sea in question, without the intervention of the

legislature, is to be taken to be the territory of the local

state for all pruposes whatsoever, so that, independently

of legislation, the local law will apply universally within

it.” 2 Exch. Div. at pp. 224-25.

Similarly, he acknowledged the statement of Erle, C.J.,

in Whitstable Fishers v. Gann, 11 C.B. (N.S.) 387, that

““(t)he soil of the sea-shore to the extent of three miles

from the beach is vested in the Crown... .”” 2 Exch.

Div. at p. 228. He then cited The Saxonia, 1 Lush. Adm.

310, which, he said, involved a collision occurring in the

Solvent within 3 miles of the shore. The Judicial Com-

mittee of the Privy Council, he said, held that, as foreign

ships had the right of navigating through this water, such

a ship passing through it was not affected by the rules as

to navigation established by the Merchant Shipping Act.

He then said:

“This case is a very strong authority for the position that

a foreign vessel having a right of passage within 3 miles

of the shore, and not being bound to a British port, cannot

be held liable under the local law by an English Court.”

2 Exch. Div. at p. 228.

The use of The Saxonia to distinguish Whitstable Fish-

ers shows that Cockburn was deciding only the narrow

question of jurisdiction over foreigners on foreign vessels

in territorial waters and, further that he based that deci-

sion largely on the existence of the right of free naviga-

tion over such waters, a right which does not deny the

rights of the coastal state within such waters for other

purposes.

186

187

Cockburn indicated that the prior judicial decisions he

had discussed had no relevance because of the very narrow

question presented:

“One common observation arises on all these deci-

sions, though, perhaps, not on all these dicta. They all

arise on the construction of Acts of Parliament. In no

instance has the judge been called upon to decide how

far without legislation the law of this country can be

applied to foreigners on the littoral sea, which is the

question we are called upon to decide. They are, there-

fore, but of little avail to the decision of this question.”

Id. at p. 229.

He similarly dismissed learned writers on the marginal

sea on the grounds that they were not dealing with the

jurisdictional question involved here:

“None of these writers, it should be noted, discuss the

question, or go the length of asserting that a foreigner

in a foreign ship, using the waters in question for the

purpose of navigation solely, on its way to another coun-

try, is liable to the criminal law of the adjoining country

for an offence committed on board.” /d. at p. 192.

* * * * *

The writers cited by Cockburn provide persuasive evi-

dence of the existence of extensive rights of the coastal

state in the marginal sea. To give just one example, Cock-

burn characterizes the writing of the publicist M. Haute-

feuille in terms which are strikingly similar to modern

concepts of the Continental Shelf:

“. .. M. Hautefeuille argues that the products of

the sea are not inexhaustible, and that the pursuit of

them requires to be kept under proper regulation; while

the people in possession of the shore are deeply inter-

ested in possessing the adjoining waters also, in order to

protect themselves against pirates. Hence the distinction

188

189

between these waters and the open sea; hence the former

may be possessed and considered as an accessory to the

shores they wash.” /d. at p. 184.

Cockburn summarized the authorities, acknowledged

their persuasiveness for some purposes and distinguished

them on the ground that they did not go as far as to

give criminal jurisdiction in the case at bar:

“Taken together, decisions and dicta no doubt shew

that the views and opinions of the foreign jurists as to a

territorial sea have been received with favour by eminent

judicial authorities of this country, and that the doctrine

respecting it has been admitted in the construction of

statutory enactinents; but none of them go the length of

establishing, or even suggesting, that, independently of

statute, the criminal law of England is applicable to the

foreigner navigating those waters.” Jd. at p. 229.

Cockburn further acknuwledged several instances in

which “the legislature has applied the principles of three-

mile jurisdiction.” /d. at p. 219. He distinguished them

by noting that, with the exception of the penalties im-

posed for violation of neutral duties or for breaches of

the revenue and fishery laws, there had been “no asser-

tion of legislative authority in the general application of

the penal law to foreigners within the three-mile zone.”

Id. He indicated that a court should not make the whole

penal law applicable to foreign vessels within three miles

of the coasts, when the legislature has failed to do so. /d.

It is true that Cockburn spoke of “vain and extravagant

pretentions” as to certain rights in the sea which “have

long since given way to the influence of reason and‘ com-

mon sense.” /d. at p. 175. These pretentions to which he

referred, however, were, e.g., the claim of England “‘to

maintain the freedom and security of navigation all the

world over,” the claim of Venice to the Adriatic, of

Genoa to the Ligurian Sea, and of the Portuguese “to

190

bar the ocean route to India and the Indian Seas to the

rest of the world.” Jd. at pp. 174-75. He went on to state

that there is no longer such broad jurisdiction, particular-

ly over foreigners. Jd. at p. 175.

I now turn to Cockburn’s treatment of the Act of Parlia-

ment of 21 & 22 Vict. c. 109 (“The Cornwall Submarine

Mines Act’’) (1858). 2 Exch. Div. at pp. 199-202. Maine

et al., Ex. No. 166. This Act confirmed the arbitration

award in a dispute between the Crown and the Duchy of

Cornwall concerning the right to minerals, first, between

high and low-water mark, and second, below low-water

mark. Maine et al., Fxs. Nos. 167, 169. The award of

Sir Join Patteson, the arbitrator, decided, first, that the

Duchy was entitled to minerals between high and low-

water mark and second that “the right to the minerals

below low-water mark remains, and is vested in the Crown,

although those minerals may be won by workings com-

menced above low-water mark, and extended below it.”

Maine et al., Ex. No. 168. The Act of 21 & 22 Vict. c.

109 confirmed this arbitration award. Concerning the

rights to minerals below low-water mark, the Act recited:

“All Mines and Minerals lying below Low-water Mark under

the open Sea, adjacent to but not being Part of the County

of Cornwall, are, as between the Queen’s Majesty in right of

Her Crown on the one hand, and His Royal Highness Albert

Edward Prince of Wales and Duke of Cornwall in right of

His Duchy of Cornwall on the other hand, vested in Her

Majesty the Queen in right of Her Crown as Part of the

Soil and territorial Possessions of the Crown.”

Cockburn attempted to limit the force of this parliamen-

tary recognition of the Crown’s ownership of the seabed

and, with all respect, I believe he is completely uncon-

vincing. Taken in the context of centuries of English lev

and practice recognizing the Crown’s ownership of the

19]

seabed, his expression of surprise at this parliamentary

result is very difficult to understand.

While Cockburn does thus seem to deny Crown rights

of property in the seabed of the marginal sea, his state-

ments on that question are clearly dicta. Cockburn’s

view that full territorial sovereignty did not extend to

the marginal sea was probably crucial to his decision on

the narrow issue of criminal jurisdiction which was be-

fore the Court. But his views on the question of Crown

property rights in the seabed were plainly not crucial to

that decision.

Pollock, J., and Field J., concurred without opinon

in Cockburn’s judgment. /d. at p. 239.

From this examination of the opinions in Queen v.

Keyn, it is clear, I believe that the decision, to the extent

to which it deals with the existence of Crown rights in

adjacent waters as distinguished from the criminal juris-

diction of English courts over foreigners on those waters,

supports the existence of such Crown rights, including

proprietary rights in the seabed under such waters.

I would like to point to just two important pieces of

evidence which were never alluded to in Queen v. Keyn

and which might well have changed the result. In 1848,

under Customs Regulations, the limits of the Port of

Dover were declared to extend three miles out to sea.

This would have included the area in which the collision

in Keyn took place. This fact alone, it would seem,

should have been determinative of the result in the case.

Furthermore, in 1833 the Select Committee on British

Channel Fisheries stated that it understood that “one

league from the shore at sea is considered ‘o be the

territory of the adjoining country.” Parl. Pap. vol. 14,

No. 676, p. 59 (1833).

192

193

BY MR. CLAGETT:

Q. How have Parliament and the English courts treated

the decision in Queen v. Keyn? A. The narrowness of

the decision in Keyn is made clear from later cases. Harris

v. The Hamburg-Amerikanische Packetfahrt Actiengesell-

schaft, 2 C.P.D. 173 (1877). Maine Ex. 161, deals with

the same accident as that involved in Keyn. Lord Coleridge,

C.J., Grove, J., and Denman, J., who were on the court

which decided Keyn, interpreted that case as dealing with

jurisdiction of the court. Although Lord Coleridge said in

colloquy that the majority of the judges in Keyn were of

the opinion “that the territory of England stopped at low-

water mark,” /d. at 177, he immediately thereafter stated

in the text of his opinion that the ratio decidendi of

Keyn is that

“for the purpose of jurisdiction (except where under

special circumstances and in special Acts parliament has

thought fit to extend it), the territory of England and

the sovereignty of the Queen stops at low-water mark.”

Id. Grove, J., said “I am of the same opinion.” Denman,

J., said:

“The ce>> ot Reg. v. Keyn clearly goes the length of

holding that, for all purposes, apart from any express

statutory provision, the moment you get beyond low-

water mark you get beyond the jurisdiction within which

the Queen's writs run.”’ Id. at p. 178.

Two years after Queen v. Keyn was decided, Parliament

repudiated that decision by enacting the Territorial Waters

Jurisdiction Act, 41 & 42 Vict. c. 73 (1878). Maine et

al., Ex. No. 170.

The Preamble declares;

“Whereas the rightful jurisdiction of Her Majesty her

heirs and successors, extends and has always extended

over the open seas adjacent to the coasts of the United

194

Kingdom and of all other parts of Her Majesty’s domin-

ions to such a distance as is necessary for the defence and

security of such dominions. .. .”

Section 2 declares:

“An offence committed by a person, whether he is

or is not a subject of Her Majesty, on the open sea with-

in the territorial waters of Her Majesty’s dominions, is an

offence within the jurisdiction of the Admiral, although it

may have been committed on board or by means of a

foreign ship, and the person who committed such offence

may be arrested, tried, and punished accordingly.”

Section 7 declares in part that:

“for the purpose of any offence declared by this Act to

be within the jurisdiction of the Admiral, any part of the

open sea within one marine league of the coast measured

from low-water mark shall be deemed to be open sea

within the territorial waters of Her Majesty’s dominions. . . .

It is apparent from the Territorial Waters Jurisdiction

Act that Parliament did believe there had always existed

territorial waters below low-water mark. The fundamental

point of Cockburn’s analysis in Queen v. Keyn, supra,

was that there could be no such jurisdiction exercised

over foreigners “consistently with legal principle,” /d. at

p. 169, unless such jurisdiction were exercised within En-

glish territory. But the Act expressly states that the

Crown’s jurisdiction “extends and has always extended”

over the territorial sea. In short, the highest authority in

England, Parliament, overruled the decision of the Exchequer

Division.

Professor John Bassett Moore has stated of the Terri-

torial Waters Jurisdiction Act:

“ . . the government and Parliament of Great Britain,

after the decision in Queen v. Keyn, considered it impera-

tive to adopt legislation nullifying its effect for the future,

195

”

196

besides declaring it wrong as to the past.” 7 The Col-

lected Papers of John Bassett Moore p. 294.

English courts since that time have frequently reaffirmed

the classical position that the Crown owns the soil under

the marginal sea.

In Lord Fitzhardinge v. Purcell, 2 Ch. 139, 166-67

(1908), Maine et al., Ex. No. 164, Mr. Justice Parker

gave this summary of the common law position:

“Clearly the bed of the sea, at any rate for some dis-

tance below low-water mark, and the beds of tidal navi-

gable rivers, are prima facie vested in the Crown, and

there seems no good reason why the ownership thereof

by the Crown should not also, subject to the rights of

the public, be a beneficial ownership. The bed of the

sea, sO far as it is vested in the Crown, and a fortiori

the beds of tidal navigable rivers, can be granted by the

Crown to the subject. There are many several fisheries

which extend below low-water mark or exist in the beds

of navigable rivers. The whole doctrine of “incrementa

maris” seems to depend on the beneficial ownership of

the Crown in the bed of the sea, which in the older au-

thorities is sometimes referred to as the King’s royal waste.

It is true that no grant by the Crown of part of the bed

of the sea or the bed of a tidal navigable river can or

ever could operate to extinguish or curtail the public

right of navigation and rights ancillary thereto, except

possibly in connection with such rights as anchorage when

there is some consideration moving from the grantee to

the public. It is also true that no such grant can, since

Magna Carta, operate to the detriment of the public right

of fishing. But, subject to this, there seems no good rea-

son to suppose that the Crown’s ownership of the bed of

the sea and the beds of tidal navigable rivers is not a

beneficial ownership capable of being granted to a subject

197

in the same way that the Crown’s ownership of the fore-

shore is a beneficial ownership capable of being so granted.”

The Judicial Committee of the Privy Council has also

affirmed the Crown’s common law right to property be-

low low-water mark and in 1916 applied it to Indian

territorial waters. Secretary of State for India 1 Chelikani

Rama Rao, L.R. 43 Indian Appeals 192 (1916) Maine et al.,

Exhibit No. 165. The Judicial Committee expressly followed

the views enunciated by Lord Hale in the 17th century and

expressly rejected the contrary dictum of Sir Alexander Cock-

burn in Queen v, Keyn as against principle. It wrote:

“It should be added, with reference to the suggestion

that the territory of the Crown ceases at low-water mark,

and that the right over what extends seawards beyond

that is merely of the nature of jurisdiction or the like,

that there are manifest difficulties in seeing what are the

grounds for this in principle. There is nothing to recom-

mend a local jurisdiction over a space of water lying

above a res nullius. As to practical results: The confusion

that might be produced by leaving islands, emergent with-

in the three-mile limit, to be seized by the first comer is

clear beyond controversy.” /d. at pp. 201-02.

It further emphasized the fact that Keyn was a deci-

sion on admiralty jurisdiction, and not a decision as to

rights over the seabed:

“It should not be forgotten that (Reg. v. Keyn, supra)

had reference on its merits solely to the point as to the

limits of admiralty jurisdiction; nothing else fell to be

there decided. It was marked by an extreme conflict of

judicial opinion, and the judgment of the majority of

the Court was rested on the ground of there having been

no jurisdiction in former times in the admiral to try of-

fences by foreigners on board foreign ships whether with-

in or without the limit of three miles from the shore.

198

199

“When, however, the actual question as to the domin-

ion of the bed of the sea within a limited distance from

our shores has been actually in issue, the doubt just men-

tioned has not been supported, nor has the suggestion

appeared to be helpful or sound.” Jd. at p. 199.

Two Scottish cases decided at the end of the 19th cen-

tury also reject the dictum of Sir Alexander Cockburn in

Queen v. Keyn. In Lord Advocate v, Clyde Navigation

Trustees, 19 Rettie p. 174 (1891), Maine et al., Ex. No.

162, the judge, Lord Kyllachy, stated:

“Is the Crown’s right in that strip of sea proprietary, like

the Crown’s right in the foreshore and in the land? or is

it only a protectorate for certain purposes, and particu-

larly navigation and fishing?

“I am of opinion that the former is the correct view

and that there is no distinction in legal character between

the Crown’s right in the foreshore, in tidal and navigable

rivers, and in the bed of the sea within three miles of

the shore. In each case it is of course a right largely qual-

ified by public uses. In each case it is therefore to a iarge

extent extra commercium; but none the less is it, in my

opinion, a proprietary right — a right which may be the

subject of trespass, and which may be vindicated like

other rights of property.” /d. at p. 177.

In the second Scottish case, Lord Advocate v. Wemyss,

A.C. 48 (1900), Maine et al., Ex. No. 163, concerned

with submarine mineral deposits, Lord Watson declared:

“I see no reason to doubt that by the law of Scot-

land, the solum underlying the waters of the ocean,

whether within the narrow seas, or from the coast out-

ward, to the three-mile limit, and also the minerals be-

neath it. are vested in the Crown.” Jd. at p. 66.

Q. Perhaps at this point it would be useful if you

were briefly to summarize your conclusions as to the

200

holding in Queen v. Keyn and its significance with respect

to the question with which we are here concerned, namely,

whether the Crown owned the marginal sea in the 17th

and 18th centuries. A. | would summarize my con-

clusions as follows:

1. Plainly, the only issue in the case was whether En-

glish criminal courts had jurisdiction, in the absence of

statute, over crimes committed by foreigners within three

miles of the English coast. On that issue the court held

by a vote of 7 to 6 that there was no such jurisdiction.

I believe, for the reasons I have stated, that this holding

was probably incorrect. At most, on the specific issue it

decided, Queen v. Keyn represents the law of England

only for a brief period in the late 19th century, not in

the 17th and 18th centuries. And as we have seen, the

decision was promptly repudiated and overruled by Parlia-

ment.

2. The holding that there was no criminal jurisdiction

over foreigners in the absence of statute neither required,

involved nor implied a decision or a belief contrary to

the existence of Crown rights, including property rights,

in the marginal sea. In fact, the opinions taken as a whole

strongly support the existence of such rights. A clear

majority of the court — the six dissenters plus Lush —

expressly held that the marginal sea out to at least three

miles constituted territorial waters and a part of the ter-

ritory of England. Five of the other six judgments all

recognized the existence of some Crown rights in the mar-

ginal seas; the remaining opinion, that of Bramwell, simply

did not address the question. Moreover, it was repeatedly

recognized in both the opinions of those who held there

was jurisdiction and those who held there was not that

in the past England had made very wide claims to owner-

ship and sovereignty over what were sometimes called the

201

“narrow seas.” See, e.g., p. 70 (Phillimore), p. 109 (Grove)

p. 119 (Amphlett), pp. 174-78, 195-96 (Cockburn). Thus

it was recognized that in the crucial period for our pur-

poses, the 17th and 18th centuries, the law of England

was that the Crown had very broad rights in the margin-

al sea, and that the law of England had changed in the

19th century in the direction of limiting those rights.

Cockburn recognized that broad claims of sovereignty

were made as late as the reign of Charles II (p. 174).

There is nothing in any of the opinions which indicates

that the broad claims asserted as law in the 17th and

18th centuries had been limited prior to the period in

which the American colonies became independent.

3. Several of the opinions recognized that the existence

of property rights of the Crown in the seabed, as dis-

tinguished from criminal jurisdiction over foreigners, was

not at issue in the case and that there was no need to

decide it. See p. 86 (Lindley), p. 109 (Grove); cf. p. 134

(Brett). It is true that dicta in Cockburn’s opinion are

adverse to such property rights, but that opinion repre-

sented the views of only 3 of 13 members of the court,

and in any event the dicta in question were plainly un-

necessary to the holding. The decision, therefore, cannot

be said to be adverse to the existence of such property

rights, even as a matter of 19th-century law, let alone as

a matter of the law of the 17th and 18th centuries. Es-

pecially as to that earlier period, as I have indicated, the

opinions recognize that the Crown had such rights of

property.

4. The holding in the case — that the English criminal

courts had no jurisdiction in the marginal sea over for-

eigners in the absence of statute — was based on con-

siderations which have nothing to do with property rights

in the Crown and which are not at all inconsistent with

202

203

recognition of such rights. The principal reason for reject-

ing criminal jurisdiction relied on by most of the opinions

which held there was no jurisdiction was that it was

thought to be inconsistent with the right of innocent pas-

sage of foreign ships through territorial waters, particularly

in the absence of a statute explicitly warning foreigners

that the courts of England would assert such jurisdiction.

Whether or not the majority judges were correct in believ-

ing that criminal jurisdiction over foreigners is inconsistent

with the right of inoncent passage, that issue plainly has

nothing to do with Crown ownership of the subsea re-

sources of the marginal seas: Such ownership could not be

said to be in any way inconsistent with the right of inno-

cent passage.

Q. Are you familiar with the Australian case of Bonser

v. La Macchia, 43 Austl.L. J. Rep. 411 (1969), and the

Canadian case, Re Off-Shore Mineral Rights of British Co-

lumbia, (1967) Canada L. Rep. 792, 65 D.L.R.2d 353?

U.S. Exhibits 18, 34. A. Yes, I am.

Q. In your opinion, are these cases inconsistent with

the opinion you have stated as to the English law of the

17th and 18th centuries? A. No, it is my opinion that

they are not. Both cases are similar to the present case to

the extent that they involve, in the Canadian case, a dis-

pute between state and national governments over which

government owns off-shore mineral rights and, in the

Australian case, a dispute over the power to regulate off-

shore fisheries. Both cases do deny the claims of the

states. Yet clearly the Australian case, and perhaps the

Canadian case, were ultimately decided on a theory of

the special juridical relationship between the individual

states there involved and the Crown before these states

became part of a sovereign national government. The es-

sential ratio decidendi of neither case turns on a rejection

of a conception of Crown rights in the marginal sea.

204

Of the five judges of the Australian High Court who de-

cided the case of Bonser v. La Macchia, two, McTiernan,

J., and Owen, J., never mentioned Queen v. Keyn in their

opinions. A third, Kitto, J., believed it was not good au-

thority. “(T)he view for which Reg. v. Keyn is cited,” he

declared, “‘cannot be regarded as established.” 43 Austl.

L.J. Rep. at p. 285.

The two remaining judges, Barwick, C.J., and Windeyer,

J., referred favorably to Queen v. Keyn, but neither, I hope

to show in a moment, ultimately based his decision on the

view that English or Australian territory stops at the water’s

edge or that the English Crown had no property rights in

the seabed.

Although Barwick does appear to agree with Queen vy.

Keyn, it is clear from his very superficial treatment of that

case that he did not rest his decision on its holding. For

immediately after his short reference to the English case,

he stated:

“But whatever the correct view as to the dominion

of the bed of the sea under territorial waters, the ques-

tion remains whether that area, whether of water or sub-

jacent land, was vested in a colony as part of the terri-

tory of the colony.” /d. at p. 278.

And Barwick proceeded to hold that the Crown never

vested ownership of the seabed in the Australian states

before Australia itself became sovereign.

That Barwick did not follow Queen v. Keyn can be

seen also in his ambiguous treatment of the effect of the

Territorial Waters Jurisdiction Act on the question. While

he suggested that Parliament “was intending in passing

(the Act) to take advantage of international comity, rather

than to assert and implement a territorial claim to the

bed of the sea,” /d. at p. 279 — a spurious interpretation

of the words of the Act, I believe, as I have indicated

205

206

above — he conspicuously refused to rest his decision on

that interpretation. Barwick wrote:

“But, if contrary to my own impression, the Terri-

torial Waters Jurisdiction Act (supra) was based upon a

claim to territorial ownership of the seabed below the

territorial waters the claim was one made by and for the

benefit of the Imperial Crown.” Jd. at p. 279.

Barwick made clear that his decision turned on the

particular experience of the Australian colonies, which

were not granted territorial rights over the territorial sea

or seabed:

“The instruments setting up the (Australian) colonies did

not in terms include as territory and subject to colonial

governorship any part of the bed of the sea or the super-

incumbent waters.” /d. at 278.

Barwick further pointed out that the Australian colonies

were never sovereign. /d.

In short, Barwick returned to the ratio decidendi of

the Australian High Court’s decision that | suggested

earlier: that the Crown never granted its territorial sover-

eignty or proprie*ury rights to the individual Australian

states.

A similar process of reasoning is evident in the opinion

of Windeyer, J. Though he appears to agree with the views

of Sir Alexander Cockburn in Queen v. Keyn, Windeyer

candidly recognized that the Territorial Waters Jurisdiction

Act reversed that decision. “It was a case,” he observed,

“in which . . . ‘the voices of infallibility by a narrow

majority’ stated the law of England in a way which Parlia-

ment very promptly corrected.” /d. at p. 292.

Ultimately, Windeyer’s opinion turns on his view that

the Territorial Waters Jurisdiction Act did not confer the

Crown’s sovereignty over territorial waters, or proprietary

rights in the seabed, upon individual Australian states. He

wrote:

207

“I reject altogether the proposition that the Colony or

State of New South Wales has or ever had in any strict

sense dominion over the adjacent sea which was, within

the statutory description in the Territorial Waters Jurisdic-

tion Act, territorial waters of Her Majesty’s dominions.

Sovereign rights in respect of these waters resided in the

Imperial Crown.” 43 Austl. L.J. Rep. at p. 294.

Windeyer made it clear that the decision in Bonser y.

La Macchia did not present the issue of proprietary rights

- and interests in the bed of the sea:

“Now, notwithstanding the obvious physical relationship,

and the generally assumed legal relationship, between ocean

waters and the earth beneath them, I think that what

are Australian waters for the purpose of the Common-

wealth power over fisheries can be decided without any

final pronouncement concerning proprietary rights and

interests in any part of the bed of the ocean, whether

the continental shelf or some narrower belt from the

land.” Jd. at p. 29

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