foreigners in foreign ships never really existed, at all events, it has long been dead and buried, even the ghost of it has been laid. But it is evoked from its grave and brought to life for the purpose of apply ing it to a part of the sea which was included in the whole, as to which it is now practically admitted that it never existed. From the time the jurisdiction was asserted to the time when the pretension to it was dropped, it was asserted over this portion of the sea as part of the whole to which the jurisdiction was said to extend. If it was bad as to the whole indiscriminately, it was bad as to every part of the whole. But why was it bad as to the whole? Simply because the jurisdiction did not extend to foreigners in foreign ships on the high seas. But the waters in question have always formed part of the high seas. They are alleged in this indictment to be so now. How, then, can the admiral have the jurisdiction over them contended for if he had it not before? There having been no new statute conferring it, how has he acquired it?

To come back to the subject of the realm, I cannot help thinking that some confusion arises from the term "realm" being used in more than one sense. Sometimes it is used, as in the statute of Richard II., to mean the land of England, and the internal sea within it, sometimes as meaning whatever the sovereignty of the Crown of England extended, or was supposed to extend, over.

When it is used as synonymous with territory, I take the true meaning of the term "realm of England" to be the territory to and over which the common law of England extends - in other words, all that is within the body of any county to the exclusion of the high seas, which come under a different jurisdiction only because they are not within any of those territorial divisions, into which, among other things for the administration of the law, the kingdom is parcelled out. At all events, I am prepared to abide by the distinction taken in the statutes of Richard II. between the realm and the sea. For centuries our judicial system in the administration of the criminal law has been divided into two distinct and independent branches, the one having jurisdiction over the land and any sea considered to be within the land; the other over the sea external to the land. No concurrent assent of nations, that a portion of what before was treated as the high sea, and as such common to all the world, shall now be treated as the territory of the local state, can of itself, without the authority of Parliament, convert that which before was in the eye of the law high sea into British territory, and so change the law, or give to the courts of this country, independently of legislation, a jurisdiction over the foreigner where they had it not before. The argument in support of the contrary appears to me, I must say, singularly inconsistent with itself. According to it the littoral sea is made to assume what I cannot help calling an amphibious character. At one time it is land, at another it is water. Is it desired to apply the law of the shore to it, so as to make the foreigner subject to that law?-it becomes so much territory. Do you wish to

hold this indictment?

keep it within the jurisdiction of the admiral, as you must do to up it is made to resume its former character as part of the high seas. Unable to follow this vacillating reasoning, I must add that, to my mind, the contention that the littoral sea forms part of the realm or territory of Great Britain is fatal to the argument which it is intended to support. For, if the sea thus becomes part of the territory, as though it were actually inter fauces terræ, it seems to follow that it must become annexed to the main land, and so become part of the adjoining county, in which case there would be an end to the Admiralty jurisdiction. The littoral sea cannot be land for one purpose and high sea for another. Nor is anything gained by substituting the term "territory" for land. The law of England knows but of one territory,

that which is within the body of a county. All beyond it is the high sea, which is out of the province of English law as applicable to the shore, and to which that law cannot be extended except by legislation.

It does not appear to me that the argument for the prosecution is advanced by reference to encroachments on the sea, in the way of harbors, piers, breakwaters, and the like, even when projected into the open sea, or of forts erected in it, as is the case in the Solent. Where the sea, or the bed on which it rests, can be physically occupied permanently, it may be made subject to occupation in the same manner as unoccupied territory. In point of fact, such encroachments are generally made for the benefit of the navigation; and are therefore readily acquiesced in. Or they are for the purposes of defence, and come within the principle that a nation may do what is necessary for the protection of its own territory. Whether, if an encroachment on the sea were such as to obstruct the navigation to the ships of other nations, it would not amount to a just cause of complaint, as inconsistent with international rights, might, if the case arose, be deserving of serious consideration. That such encroachments are occasionally made seems to me to fall very far short of establishing such an exclusive property in the littoral sea as that, in the absence of legislation, it can be treated, to all intents and purposes, as part of the realm.

Again, the fact, adverted to in the course of the discussion, that in the west of England mines have been run out under the bed of the sea to beyond low-water mark, seems to me to avail but little towards the decision of the question of territorial property in the littoral sea. But for the Act of 21 & 22 Vict. c. 109, to which our attention has been specially directed, I should have thought the matter simple enough. Between high and low water mark the property in the soil is in the Crown, and it is to be assumed that it is by grant or license from the Crown, or by prescription, which presupposes a grant, tnat a mine is carried beneath it. Beyond low-water mark the bed of the sea might, I should have thought, be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier. I should not have thought that the carrying one or two mines into the

bed of the sea beyond low-water mark could have any real bearing on a question of international law like the present.

But the Act just referred to, and the circumstances out of which it arose, have been brought impressively to our attention by the Lord Chief Justice of the Common Pleas, as showing that, according to parliamentary exposition, the bed of the sea beyond low-water mark is in the Crown. I cannot help thinking that, when the matter comes to be looked at a little more closely, it will be found that the facts by no means warrant this conclusion. The Duchy of Cornwall, which is vested in His Royal Highness the Prince of Wales, extends, as is known, to low-water mark. Mines existing under the bed of the sea within the low-water mark having been carried out beyond it, a question was raised on the part of the Crown as to whether the minerals beyond the low-water mark, and not within the county of Cornwall, as also those lying under the sea-shore between high and low-water mark within the county of Cornwall, and under the estuaries and tidal rivers within the county, did not belong to the Crown. The matter having been referred to Sir John Patteson, his decision as to the mines and minerals below low-water mark was in favor of the Crown; with reference to the others, in favor of the duchy. Not having had the advantage of seeing Sir John Patteson's award, I am unaware whether the precise grounds on which his decision proceeded are stated in it, but the terms in which it was framed may be gathered with perfect precision from the recitals of the Act of Parliament which, by arrangement, was passed shortly afterwards to give statutory effect to the award. From the recitals in the preamble to the Act it appears that the award was very carefully, I may say cautiously, drawn. After stating the matter in dispute, and the reference to Sir John Patteson, the preamble goes on to recite that the arbitrator had decided,

“First, that the right to all mines and minerals lying under the seashore between high and low-water marks within the said county of Cornwall, and under estuaries and tidal rivers, and other places, even below low-water mark, being in and part of the said county, is vested in His Royal Highness as part of the soil and territorial possessions of the Duchy of Cornwall. Secondly, that the right to all mines. and minerals lying below low-water mark, under the open sea adjacent to, but not being part of, the county of Cornwall, is vested in Her Majesty the Queen in right of her Crown, although such minerals may or might be won by workings commenced above low-water mark and extended below it."

The difference between the two parts of this recital is at once apparent. When dealing with that which is within low-water mark, the award declares the right to the mines and minerals under the sea-shore to be vested in His Royal Highness "as part of the soil and territorial possessions of the Duchy of Cornwall." But when the learned. arbitrator comes to deal with the mines and minerals below low-water

66

mark, he stops short of saying that these mines and minerals belong to Her Majesty by virtue of any ownership in the soil. He confines himself to awarding that the right to such mines and minerals is vested in Her Majesty in right of her Crown." What the grounds were on which this decision was based I can only conjecture. Sir John Patteson may have held, on the authority of Collis (p. 53), that a subject cannot have any ownership in the soil below low-water mark, and, though standing next to the Throne, the Prince of Wales is still a subject, — and that, as between the Crown and a subject as regards property in or under the open sea, the Crown had the better right. Or the decision may have been founded on the peculiar constitution of the Duchy of Cornwall, which is settled by Act of Parliament and occasionally reverts to the Crown. I cannot help thinking that If the arbitrator had proceeded on the ground that the bed of the sea below low-water mark belonged to the Crown, he would have said so, as he had just before done with reference to the soil above low-water mark. It is true that, when we come to the enacting part of the statute, that which had been left unsaid by Sir John Patteson is supplied. The mines and minerals beyond low-water mark are enacted and declared to be in the Queen, in right of her Crown, as part of the soil and possessions of the Crown, just as the mines and minerals within low-water mark are stated to be vested in the Prince of Wales as Duke of Cornwall, in right of the Duchy of Cornwall, as part of the soil and possessions of the duchy. But it is expressly declared that this is to be taken to be so only "as between the Queen in right of her Crown, and the Prince of Wales in right of the Duchy of Cornwall," and the rights of all other persons are expressly preserved. I am surprised, I own, that we should be asked to look on this piece of legislation as a parliamentary recognition of the universal right of the Crown to the ownership of the bed of the sea below low-water mark. This was a bill for the settlement of the question as to the right to particular mines and minerals between the Crown and the duchy, a measure in which both the royal personages particularly concerned and their respective advisers concurred, and in which no other person whatever was interested. To what member of Parliament, even the most eccentric, could it possibly have occurred to raise an objection to it on the ground that it involved an assertion of the Queen's right of property in the bed of the sea? To whom would it occur that, in passing it, Parliament was asserting the right of the Crown to the bed of the sea over the three-mile distance, instead of settling a dispute as to the specific mines which were in question? With the most unfeigned respect for my learned colleague, I cannot but think that he has attached to this piece of legislation a degree of importance to which it is by no means entitled.

It thus appearing, as it seems to me, that the littoral sea beyond low-water mark did not, as distinguished from the rest of the high seas, originally form part of the territory of the realm, the question again presents itself, when and how did it become so? Can a portion

of that which was before high sea have been converted into British territory, without any action on the part of the British Government or legislature by the mere assertions of writers on public law

by the assent of other nations?

or even

And when in support of this position, or of the theory of the threemile zone in general, the statements of the writers on international law are relied on, the question may well be asked, upon what authority are these statements founded? When and in what manner have the nations, who are to be affected by such a rule as these writers, following one another, have laid down, signified their assent to it? to say nothing of the difficulty which might be found in saying to which of these conflicting opinions such assent had been given.

For, even if entire unanimity had existed in respect of the important particulars to which I have referred, in place of so much discrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labors may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage, - an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.

When I am told that all other nations have assented to such an absolute dominion on the part of the littoral state, over this portion of the sea, as that their ships may be excluded from it, and that, without any open legislation, or notice to them or their subjects, the latter may be held liable to the local law, I ask, first, what proof there is of such assent as here asserted; and, secondly, to what extent has such assent been carried? a question of infinite importance, when, undirected by legislation, we are called upon to apply the law on the strength of such