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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0003%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 855

## Text

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FIiLe
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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David H. Flaherty
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Richard B. Morris
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Witnesses (cont'd):

Samuel E. Thorne

Kinvin L. Wroth
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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

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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

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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

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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

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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

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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,

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issued in connection with his 1945 proclamation referred
to above and reported at Vol. 10, p. 12305 of the Federal
Register, made clear that he viewed the two matters as
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

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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

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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

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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.

il

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

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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.

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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

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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

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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

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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.

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“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

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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.

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19

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

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20

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

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21

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,

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111

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22

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

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23

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.

24

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.

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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 .. .”

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26

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).

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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

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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

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29

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

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30

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.

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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

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32

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

,

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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

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34

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

35

“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.

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36

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

37

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.

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38

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.

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39

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

40

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

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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

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42

‘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:

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43

“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.

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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

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45

“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

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46

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.

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47

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

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48

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.> 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

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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

”

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77

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

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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.

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79

“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

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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

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“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

,

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82

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.

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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

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84

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:

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85

“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. 291.

I note also that Windeyer warned that there should not
be a false analogy between the experience of the Ameri-
can and Australian States:

“... nothing is added to political stature by a false de-
scription, which is perhaps the result of a supposed analogy,
obviously fallacious in law and in historical fact, with the
States of the United States of America.” /d. at p. 294.

In sum, I believe all of the opinions in Bonser v. La
Macchia are consistent with the classical common law con-
ception of crown proprietary rights in the seabed.

The Canadian opinion, Re Off-Shore Mineral Rights of
British Columbia, does contain the statement that “the
majority opinion” in Keyn held that “the territory of
England ends at low-water mark.” 65 D.L.R.2d at p. 364.
The Court so stated in spite of the facts that there was

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no single “majority opinion” in Keyn, and of the 13
judgments rendered a clear majority — the 6 dissenters
plus Lush — expressly rejected the view that the territory
of England ends at low-water mark. Only Cockburn and
the two judges who concurred in his opinion expressed
that view, and as has been seen, even they recognized
some Crown rights in the marginal sea. The Canadian
court’s remark quoted above follows immediately after
the court set out the opinion of Lush, J., in full, includ-
ing Lush’s statement that territorial waters are “British
territory, as being under the exclusive dominion of Great
Britain,” but that they were “out of the realm” for pur-
poses of criminal jurisdiction. Since the Court singled out
Lush’s opinion for approbation, it appears that either the
Court failed to grasp the distinction Lush was making, or
else its own opinion was not intended to be inconsistent
with the Crown’s “dominion” which Lush recognized.
Taken as a whole, the Canadian opinion is unclear as
to whether it represents a misreading of Queen v. Keyn
as holding that the Crown had no property rights in the
marginal sea — which Keyn certainly did not hold — or

whether the fundamental reason for the decision was that,

even though the Crown may have had such rights, it had

never transferred them to British Columbia. There is much

in the opinion to support the view that the Court’s con-
clusion was based on the particular history of British
Columbia. The Court pointed out that it was not until
1849 that a civil Government was established by the
Queen for the Colony of Vancouver Island, the predeces-
sor of British Columbia. 65 D.L.R.2d at p. 357. The Act
of August 2, 1858, “‘to provide for the Government of
British Columbia” defined the Western boundary of the
mainland Colony of British Columbia as “the Pacific
Ocean.” /d. Parliament in an 1863 Act “to define the

87

boundaries of the Colony of, British Columbia” defined the
western boundary of the Colony as “the Pacific Ocean.”
Id. at pp. 357-58. The Act of 1866 for the union of
Vancouver Island with the Colony of British Columbia
defined the western boundary of British Columbia in the
same way. /d. at p. 358. No changes in the boundaries
took place at the time of Confederation. Jd.

It is my understanding that evidence will be presented
relating to the American colonies which will show specif-
ic delegations of power over the marginal sea and seabed
in charters to the civil governments of those colonies. If
so, then this history is materially different from the his-
torical record of British Columbia relied on by the Cana-
dian Court — which history, it said, did not reveal any
grant to British Columbia of “rights to which the British
crown was entitled under international law.” Jd at p.
367.

The Canadian Court supported its conclusion by noting
legislation which is inconsistent with a theory that in
1878 British Columbia possessed as part of its territory
the solum of the marginal sea, e.g,, the Territorial Waters
Jurisdiction Act, which would have applied the law of
England, not Canada, to a crime committed within a
league of the coast of British Columbia; and early Cana-
dian legislation such as “An Act respecting the Customs”
(1867) which deals with vessels “hovering (in British
waters) within one league of the coasts or shores of
Canada,” and “An Act respecting fishing by foreign ves-
sels” (1868) which empowers the Governor to grant
licenses to foreign vessels to fish “in British waters, with-
in three marine miles of any of the coasts, bays, creeks
or harbours whatever, of Canada.” /d. at p. 365. This
evidence, of course, has no application to the experience
of the American colonies.

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The Court acknowledged that the Territorial Waters
Jurisdiction Act recognized a territorial sea. “(I)ts effect,
the Court stated, “was that the United Kingdom clearly

”

claimed jurisdiction over a territorial sea in respect of the . .

Dominion of Canada.” 65 D.L.R.2d at p. 374. Neverthe-.
less, the Court held:

“|. we are of the opinion that the territorial sea lay
outside the limits of the Colony of British Columbia in
1871 and did not become part of British Columbia fol-
lowing union with Canada. We are also of the opinion
that British Columbia did not acquire jurisdiction over
the territorial sea following union with Canada. /d. at p.
373.

Finally, the Court remarked:

“We are not disputing the proposition that while British
Columbia was a Crown Colony the British Crown might
have conferred upon the Governor or Legislature of the
Colony rights to which the British crown was entitled
under international law but the historical record of the
Colony does not disclose such action.” /d. at p. 367.

In short, neither the Australian nor the Canadian case
is necessarily inconsistent with the view that there was a
marginal sea in which the Crown was vested with both
sovereign and proprietary rights. Both cases, however, held
that such rights never passed to the individual states but
only to Canada and Australia when they themselves be-
came sovereign.

The last aspect of the question is beyond the scope of
my research and hence I do not have an opinion on
whether there are differences between America on the one
hand, and Australia and Canada, on the other, that would
justify a different conclusion.

I understand that at a later point there will be expert
testimony addressed precisely to this issue of whether

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&9

there is historical evidence for the proposition that the
Crown’s ownership of the seabed passed from the Crown
to the respective American colonies or states.

I note that, just as Keyn was a decision establishing
the law in the nineteenth century, so too the relevant
period under discussion in the Canadian and Australian
decisions was the nineteenth century. They do not, there-
fore, have application to the period of American history
relevant to the case at bar.

Q. Let us now return once again to the original ques-
tion concerning English law and practice in the 17th and
18th centuries. Apart from the treatise literature, is there
other evidence in this period to show that the Crown
exercised ownership over the seabed? A. I referred
earlier to the great controversy over fishing rights during
the 17th century. In passing, I tried to show the extent
to which English kings well before the 17th century
claimed ownership over fisheries and the right to license
foreigners in the King’s seas. Now, let me refer in a more
systematic fashion to the most important of the numerous
documents during the 17th century that firmly established
the conception of a territorial sea in English law.

The single most important and influential official pro-
nouncement during the 17th century asserting the English
Crown’s sovereignty over the sea is the Proclamation of
James I on May 6, 1609. Maine et al., Ex. No. 221.

The Proclamation recited that no foreigners “be per-
mitted to fish upon any of our Coasts and Seas of Great
Britaine, Ireland, and the rest of the Isles adiacent, where
most usually heretofore any fishing hath bene . . .” unless
they first received a license from the English authorities.

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90

It is not too much to say, I think, that this Proclama-
tion formed the foundation of English legal policy towards
the sovereignty of the seas during the 17th and 18th cen-
turies. And as I indicated previously, foreign nations —
even the Dutch, at whom it was principally aimed —
largely acquiesced in the licensing scheme enunciated in
the Proclamation.

The next important royal pronouncement is that of
Charles I in 1636, “A Proclamation for restraint of Fish-
ing upon His Maiesties Seas and Coasts without Licence.”
Maine et al., Ex. No. 222.

The Proclamation recited the earlier statement of James
1, noting that the Crown had “expected a voluntary con-
formity” to James’ licensing provisions. But since under
that voluntary scheme, “‘all the inconveniences which oc-
casioned that (1609) proclamation, are rather increased
than abated,” it was necessary

“to renew the aforesaid restraint of fishing upon our afore-

said Coasts and Seas, without licence first obtained from
Moreover, the King resolved

“to keepe such a competent strength of Shipping upon
Our Seas, as may (By Gods blessing) be sufficient . . . to

”

hinder such further encroachments upon Our Regalities. ...’

There is considerable evidence that the two Proclama-
tions became the basis of English law and practice during
the 17th and 18th centuries. For example, in a 1635-36
Report by the Lords of Admiralty to the King on the

question of whether the Crown could license Dutch fisher-

men, it was stated:

“ .. they were all of opinion that the right and royalty
of fishing upon his Majesty’s coasts belongs to him by in-
heritance, so that he may justly prohibit or license strang-
ers... . Are of the opinion that it should be intimated

91

to the Minister of the United Provinces residing here that
the King is resolved to defend those fishings in the same
manner as the hereditary right of any other of his do-
minions. . . .” S.P. Dom., Car. I., CCCXIII, 210 (1635-
36), Maine et al., Ex. No. 223.

Another important document [—here, again, the manu-
script is the source—] “Propositions for Fishing” (1633),
by Secretary of State Sir John Coke begins:

“The greatnesse & glorie of this Kingdom of great Brit-
taine consisteth not so much in the extent of his Mte.
(Majesty’s) territories by Land as in the soveraintie and
command of the seas.” S.P. Dom., Car. I., CCXXIX (1633)
(original manuscript). Maine et al., Ex. No. 184.

The document assumes the Crown’s undisputed right to
exclude foreigners from fishing, urging the King that the
Dutch “be brought to pay his Majesty his ancient rights;
and to acknowledge his Majesty’s sovereignty... .”

Let me again emphasize that there are dozens more
documents in the period after the Charles I Proclamation
of 1636 which base Crown rights to exclude fishermen on
a theory of Crown ownership of the territorial sea.

It is interesting that later during the Civil War, Com-
monwealth and Protectorate period (1642-1660), there
were many official warnings to preserve “the ancient and
indubitable” dominion of the sea. S.P. Dom. Common-
wealth, 1649-50, pp. 484-85, Maine et al., Ex. No. 224.
At the end of the English Civil War, Professor Elder tells
us, “Cromwell . . . had scarcely commenced to rule be-
fore... he gave . . . orders (to naval officers) ‘to guard
the North Sea and mackarel fisheries,’ and ‘to maintain
the sovereignty of the commonwealth in the seas.’ ” Elder,
The Royal Fishery Companies of the Seventeenth Century,
p. 85.

Between 1667 and 1684, Charles II delivered a series

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of neutrality proclamations. The preamble to the Proclama-
tion of March 12, 1683/4, begins:

“Whereas the safeguard and protection We owe to such of
Our own Subjects, and to all others in League and Amity
with Us, as pass and repass the Seas belonging to these
Our Kingdome, have been always a principal part of Our
Royal care and concern. . . .” Maine et al., Ex. No. 225.

The Charter of the Royal Fishery of England, Patent
Rolls, 29 Car. Il., pt. X (1688), printed in Carr, Select
Charters of Trading Companies at pp. 196, 201, Maine
et al., Ex. No. 179, also acknowledged the royal owner-
ship of fisheries. The charter granted not only the right
to fish in rivers, creeks, and arms of the sea, but also “in
and upon the main seas or any part thereof... .” The
Charter also granted the power
“to build and make wharves and stocks for the use of the
said Company and their successors in and upon and out
of any of the wastes commons or waste grounds of Us
our heirs and successors adjoining unto or upon any public
rivers or seas within any of our Dominions... .”

Q. Besides fishing, is there any evidence that there
was a conception in the 17th and 18th centuries of actual
exploitation of the seabed? In other words, apart from
international claims, do you have evidence that the legal
pronouncements concerning ownership of the seabed had
actual domestic consequences in the 17th and 18th cen-
turies? A. First, let me add another word about fish-
ing. These legal rules also affected rights in disputes solely
involving English nationals. For example, here is the full
report of the King’s Bench Division case of Johnson vy.
Barret, Aleyn 10, 82 Engl. Rep. 887 (1646):

“In an action of trespass for carrying away soil and tim-
ber, &c. Upon trial at the Bar the question arose upon a
key that was erected in Yarmouth, and destroyed by the

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bailiffs and burgesses of the town; and Rolle said, that if
it were erected between the high-water mark and low-
water mark then it belonged to him that h

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0003%3A04. Public record. Not legal advice.