Majesty's Principal Secretaries of State. Chapter II Shore to low in the realm. waters not It is obvious that; with consequences so important waiting upon the answer, it should be possible to state that answer with precision. Yet it is shrouded in doubt: and the notable argument on the trial of Ferdinand Keyn for manslaughter warns us that, when the question arises, the doubt will not be removed without much controversy. We know that the realm ex- water mark, tends at least to low-water mark: we know that estuaries, creeks creeks, and harbours, inand harbours, and other land-locked waters are included within cluded withits limits but beyond this we know for certain nothing. There are some, indeed, who include within the dominions the 3-mile limit of territorial waters, an error which has arisen from the use of so misleading a name. But it must, before anything else can Territorial be made clear, be accepted as fundamental to the whole subject included. that, whatever virtues the protective zone of territorial waters possesses, it lacks one important attribute of sovereignty, the power to forbid innocent transit by foreigners. A dominion from which there is no right to exclude the foreigner, which he on his side has a right to enter, ceases to be dominion: for the sovereignty over it is not absolute. Nor, since we are dealing with sovereign and not individual ownership, can we find a golden bridge by treating this right of navigation as a mere easement, the ownerships being so different in character. The true nature of the sovereign rights over the territorial waters will be considered in due course; for the present it is sufficient and necessary to say that this belt of waters encircles the realm, but does not form part of it. over "waters But there are other waters which do form part of the realm, which should with more propriety be called "territorial waters": but since that name has already been appropriated, they must be Absolute called for clear distinction "waters of the dominion"-the waters sovereignty within "headlands that shoot beyond so as to make what are of the called Chambers."* Over these waters sovereignty is absolute; dominion." free navigation by foreigners is not as of right, but may be for- The consebidden or made subject to regulations in the same way as pas-quences. sage over territory may be forbidden or regulated. And then this consequence immediately follows: the law of the land applies to them in its entirety, automatically, and without special words *The Twee Gebroeders, 3 Rob.-Adm. at p. 341. Chapter II of reference. They are within the jurisdiction both of the civil and the criminal Courts, with all the attendant consequences; foreigners are, like subjects, amenable to those jurisdictions: writs run, and extradition warrants may be executed thereon. In short, these waters are not the high seas, nor are they " territorial waters": they are an integral part of the realm whose shores they wash, and fall within the generic description "embayed waters." Decisions on the subject. 28 L.J: M. C. 66 Case of murder by foreigner in the Bristol Channel. Decision that the But there is a difficulty, not in understanding the reason of the doctrine applicable to these waters, but in determining the limits of its application. We have two decisions to guide us, and as the judgments practically cover the whole ground, I propose to study them exhaustively. In R.v.Cunningham, three foreigners had committed a murder on board a foreign ship in the Bristol Channel, at a spot which was proved to be not in the mouth of the Severn, but in the Channel itself, between the Glamorganshire and Somersetshire coasts, about 10 miles or more from Somersetshire. The question (to be considered at length in the second part of this book), arose whether the crime was committed within the body of a county, and hence within the realm, in order to determine whether the Courts had jurisdiction under the ordinary law. The case was of great importance, of equal importance indeed with that of the Franconia which was argued some years later. If the spot where the murder was committed was not within the realm, the crime would go unpunished: for this much of a complex subject may be treated as certain, that the English high sea legislation does not, in so far as it extends the criminal law to the sea, apply it to foreigners on board foreign ships. The Court of Crown Cases Reserved held that the Channel, Whole Chan-was part of the realm because it lay intra fauces terrae, and was nel is intra within the adjoining county of Glamorgan for the purpose of fauces. laying the venue in the indictment; and that this was not limited. to the part of the channel in question, but "that the whole of this inland sea between the counties of Somerset and Glamorgan is to be considered as within the counties by the shores of which its several parts are respectively bounded". The safety of the realm from invasion, as well as the integrity of the King's peace are involved in this principle of dominion waters. It does not apply however to the sea along the open coast, but only to the King's Chambers; and the rule as to the Chapter II sea being intra fauces makes the principle dependent entirely on the configuration of the land. The authorities dwell on the fact that the title is by occupation, and that this may be express Title by or presumed. Even in the case of the Bristol Channel this fact occupation. was relied on as of importance :- "The fact of the Holms between which and the shore of the county of Glamorgan the place in question is situated having always been treated as part of the parish of Cardiff, and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed.” land. But yet the principle seems equally clear that the occupation Configurawill be presumed where the configuration of the land shows that tion of the the safety of the realm demands it. Directly this is admitted the question of actual occupation would seem to be of little impor tance, though interesting from the point of view of the local jurisdictions: and Lord Blackburn's comments on Cunningham's case in the case of Conception Bay tend to support this view. The actual breadth of the Severn at the Holms is difficult to Measurements of disdetermine in consequence of the bends of the Channel: but taking the actual words used by Cockburn C. J.-" the whole of tol Channel. this inland sea between the counties of Somerset and Glamorgan is to be considered as within the counties"-we get a distance due north and south, from the westernmost point of Somer set to the opposite shore of Glamorgan, of 17 miles. But Lord 'L.R. 2 App. Blackburn points out that the case reserved "incidently states that it was about go miles from Penarth Roads (where the crime was committed) to the mouth of the Channel, which points to the headlands in Pembroke and Hartland Point in Devonshire as being the fauces of that arm of the sea. It was not however necessary for the decision to determine what was the entrance to the Bristol Channel." Ca. at p. 419. of configura The distance between the Pembroke headlands and Hart- Importance land Point is about 50 miles. If the doctrine of intra fauces is of question strong enough to carry so wide an interpretation, assuredly the tion. jurisdiction of the Courts of Assize would not be found wanting for the lack of evidence as to local usage in the matter, and which it would be difficult to find in the case of so broad an expanse of sea. However this may be, actual occupation is in fact looked to, Case of acand in the case of Conception Bay in Newfoundland there is a tion. Cou decision actually based upon it-Direct United States Cable Co, ception Bay. [L.R. 2 App. v. Anglo American Telegraph Co. Ca. 394.] tual occupa Chapter II Judgment of Privy Council. *[Supra.] Examina The question was whether the grant by the Legislature of Newfoundland of an exclusive right to a telegraph company to the use for its purposes of any part of the territory of the Colony, was infringed by another cable company which had laid a cable to a buoy in Conception Bay at a point more than 3 miles from the shore in other words, the question was whether there was territorial dominion over the bay to warrant the grant made by the Colony. The bay is 20 miles wide at its mouth between Cape St. Francis and Split Point, and runs into the land about 40 miles, with an average width of 15 miles. Lord Blackburn delivering the judgment of the Privy Council dwelt in the first place on presumed occupation; he adopted as conclusive the decision in Cunningham's case,* and as upsetting some ancient theoretical tests or guides to the application of the doctrine of intra fauces: He gave first a translated quotation from the Abridgment of Fitzherbert: "Nota per Staunton J., that that is not (sance which Lord Coke translates " part ") of the sea where a man can see what is done from one part of the water and the other, so as to see from one land to the other that the coroner shall come in such case and perform his office, as well as coming and going in an arm of the sea, there where a man can see from one part to the other of the (a word not deciphered), that in such a place the country can have conusance &c." Then follows a quotation from Lord Hale's De Jure Maris"That arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discerne between shore, is, or at least may be within the body of a county, and therefore within the jurisdiction of the sheriff or coroner." "Neither of these great authorities" continues Lord Blackburn, "had occasion to apply this doctrine to any particular place, nor to define what was meant by seeing or discerning. If it means to see what men are doing, so for instance that eye-witnesses on shore could say tion of old who was to blame in a fray on the waters resulting in death, the distance tests for presumed occu- would be very limited if to discern what great ships were about, so as pation. to be able to see their manœuvres it would be very much more extensive in either sense it is indefinite, After examining the full extent of the decision in Cunningham's case, the judgment then proceeds "Passing from the common law of England to the general law of nations as indicated by the text-writers on international jurisprudence, we find an universal agreement that harbours estuaries and bays land locked belong to the territory of the nation which possesses the shores Chapter II round them, but no agreement as to what the rule is to determine what agreement none as to is "bay"for this purpose. It seems generally agreed that where the confi- General guration and dimensions of the bay are such as to show that the nation. as to occupying the adjoining coasts also occupies the bay it is part of the principle, but territory, and with this idea most of the writers on the subject refer to its defensibility from the shore as the test of occupation: some suggesting application. therefore a width of one cannon shot from shore to shore, or three miles: some a cannon shot from each shore, or six miles : some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclud Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in R. v. Cunningham was decided to be in the county ningham accepted of Glamorgan. " R. v. Cun as authorita Referring again to the fact that neither jurists, nor text-wri- tive. ters, nor judicial decision, had laid down the rules as to dimensions and configuration by means of which the doctrine could be applied, Lord Blackburn added that if it were necessary to lay down a rule the difficulty of the task would not deter the Committee from attempting to fulfil it. It was however not necessary to lay down any rule for of view of express occupation. "in point of fact the British Government has for long period ex- Examinaercised dominion over this bay, and their claim has been acquiesced in tion of case from point by other nations so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive) the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland. " dominion The following were the acts of dominion relied on— (a)—A convention in 1818 between the United States and Acts of Great Britain by which the fishermen of the States should have relied on. the right to fish on the coasts, Conception Bay being excepted, but not to enter any bays except for shelter : "It is true that the convention would only bind the two nations who were parties to it, and consequently that though a strong assertion of ownership on the part of Great Britain, acquiesced in by so powerful a State as the United States, the convention, though weighty, is not decisive." (b) —The statute passed to give effect to the convention : which however went further, by imposing on all persons not being subjects the duty to observe the restrictions of the convention. |