5 C. ROB. ADM. 373, November 6, 15 and 20, 1805.
This was the case of a ship under American colours, with a cargo of logwood, and about thirteen thousand dollars on board, bound from the Spanish main to New Orleans, and captured by the Minerva, privateer, near the mouth of the river Mississippi. A claim was given under the direction of the American ambassador for the ship and cargo "as taken within the territory of the United States, at the distance of a mile and a half from the western shore of the principal entrance of the Mississippi, and within view of a post protected by a gun, and where is stationed an officer of the United States."
Judgment—20th November, resumed.
Sir W. SCOTT. . . . When the ship was brought into this country, a claim was given of a grave nature, alleging a violation of the territory of the United States of America. This great leading fact has very properly been made a matter of much discussion, and charts have been laid before the court to show the place of capture, though with different representations from the adverse parties. The capture was made, it seems, at the mouth of the river Mississippi, and, as it is contended in the claim, within the boundaries of the United States. We all know that the rule of law on this subject is "terrae dominium finitur, ubi finitur armorum vis," and since the introduction of firearms, that distance has usually been recognized to be about three miles from the shore. But it so happens in this case, that a question arises as to what is to be deemed the shore, since there are a number of little mud islands composed of earth and trees drifted down by the river, which form a kind of portico to the main land. It is contended that these are not to be considered as any part of the territory of America ; that they are a sort of "no man's land," not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. It is argued that the line of territory is to be taken only from the Balize, which is a fort raised on made land by the former Spanish possessors. I am of a different opinion ; I think that the protection of territory is to be reckoned from these islands ; and that they are the natural appendages of the coast on which they border, and from which, indeed, they are formed. Their elements are derived immediately from the territory, and on the principle of alluvium and increment, on which so
much is to be found in the books of law, Quod vis fluminis de tuo praedio detraxerit, et vicino praedio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Consider what the consequence would be if lands of this description were not considered as appendant to the main land, and as comprised within the bounds of territory. If they do not belong to the United States of America, any other power might occupy them ; they might be embanked and fortified. What a thorn would this be in the side of America. It is physically possible, at least, that they might be so occupied by European nations, and then the command of the river would be no longer in America, but in such settlements. The possibility of such a consequence is enough to expose the fallacy of any arguments that are addressed to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock, will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil.
I am of the opinion that the right of territory is to be reckoned from those islands. . . .
THE KING v. FORTY-NINE CASKS OF BRANDY.
3 HAGG ADM., p. 257-293.
January 20, 1836.
Effect, as against the office of Admiralty, of grants from the crown to a lord of a manor of “wreck of the sea.” Claim, by grant, to “flotsam,” &c., &c., not exceeding three miles from low water mark, rejected. Boundaries of the admiralty jurisdiction on the coasts of the kingdom. Office of Lord High Admiral, its duties, and rights. To constitute “wreck of the sea,” goods must have touched the ground, though they need not have been left dry. Goods afloat on the high sea (though within low-water mark) if they have not touched the ground, are “droits.” If they have touched the ground, but are still moved by the sea, quaere. Semble, that the crown cannot lawfully grant “droits” to a private person.
Rule of construction of grants from the crown.
Three miles beyond low-water mark is the limit of territorial right as between nations only.
Sir J. Nicholl. . . . Now the coast is, properly, not the sea, but the land which bounds the sea ; it is the limit of the land jurisdiction, and of the parishes and manors—bordering on the sea—which are part of the land of the county. The limit, however, and its character, varies according to the state of the tide ; when the tide is in, and covers the land, it is sea ; when the tide is out, it is land as far as low-water mark ; between high and low-water mark it must therefore be considered as divisum imperium.