The Ownership of the Sea Bed Under British Territorial Waters
| Date | 01 October 1978 |
| Published date | 01 October 1978 |
| DOI | 10.1177/004711787800600207 |
| Author | John Gibson |
| Subject Matter | Articles |
474
THE
OWNERSHIP
OF
THE
SEA
BED
UNDER
BRITISH
TERRITORIAL
WATERS
JOHN
GIBSON
THE
legal
status
of
the
territorial
sea
bed
of
the
United
Kingdom
is
a
vexed
and
difficult
topic,
which
has
been
complicated
by
the
use
of
imprecise
and
confusing
terminology
on
the
part
of
both
judges
and
commentators.
It
is
particularly
important
to
dis-
tinguish
the
soil
of
the
solum
from
the
waters
above
it,
and
to
separate
the
concept
of
proprietary
ownership
from
that
of
terri-
torial
dominion
or
legal
jurisdiction.
THE
HISTORICAL
CLAIM
OF
THE
CROWN
It
is
a
matter
of
fact
that
possession
of
the
sea
bed
within
the
three-mile
limit
has
now
been
assumed
by
the
Crown,
through
the
agency
of
the
Crown
Estate
Commissioners,
although
it
is
debatable
whether
this
fait
accompli
can
historically
be
justified.
The
principle
was
publicly
canvassed
as
long
ago
as
the
sixteenth
century
by
Thomas
Digges,
in
a
pamphlet
supporting
his
conten-
tion
that
the foreshores
of
the
kingdom
belonged
to
Queen
Elizabeth
I :1
I
&dquo;So
in
the
greate
salt
riuer
I
meane
the
sea
enuirroninge
the
whole
Ilande,
and
in
the
salt
shores
thereof,
the
greate
and
cheefe
lorde
of
the
whole
soyle
the
Kinge
himself
only
muste
haue
interest
and
propertye,
and
no
man
ells
nether
by
prescription
nor
eny
other
waye,
salue
only
by
the
Kinges
especiall
graunte
maye
claime
propertye
in
them.&dquo;
It
has
even
been
suggested2
that
the
idea
was
actually
invented
by
Digges,
who
subsequently
received
royal
patents
granting
him
reclaimed
lands
in
Kent,
which,
on
the
evidence
of
investiga-
tive
commissions,
he
alleged
to
be
unlawfully
occupied.3
One
may,
however,
doubt
whether
so
sweeping
a
thesis
could
have
gained
legal
acceptance,
unless
it
was
at
least
reconcilable
with
earlier
doctrine.
In
this
context,
it
is
worth
noting
that
chapter
13
of
the
statute,
Prerogativa
IZegis,4
which
has
tenta-
tively
been
dated
to
1324,
declares
the
King’s
right
to
whales
and
1
Arguments
prooving
the
Queenes
Ma
ties
propertye
in
the
Sea
Landes,
and
salt
shores
thereof
(1568-69).
Printed
in
S.A.
Moore,
A
History
of
the
Foreshore
and
the
Law
relating
thereto
(1888),
p.185,
at
p.191.
2
T.
W.
Fulton,
The
Sovereignty
of
the
Sea
(1911),
p.362.
3
See
Moore,
op.
cit.
p.212
et
seq.
4
17
Ed.
2.
St.
1.
c.
11
in
Ruffhead’s
Edn.
(1786).
475
sturgeons
&dquo;taken
in
the
sea
or
elsewhere
within
the
realm.&dquo;5
Although
the
significance
of
this
phrase
is,
perhaps,
questionable,
the
use
of
the
words
&dquo;or
elsewhere&dquo;
would
appear
to
imply
that
the
sea
is
included
in
the
realm.
Furthermore,
the
royal
preroga-
tive
entails
an
assumption
of
property
in
these
fish,
rather
than
a
mere
profit d
prendre,
since
it
is
immaterial
by
whom
they
are
caught;
this
seems
most
consistent
with
a
notion
of
ownership
in
the
wastes
where
such
creatures
live.
Digges’
dubious
motives,
which
ultimately
brought
him
to
the
Tower
of
London
6
inevitably
diminish
the
conviction
of
his
testimony.
In
1622,
a
more
trustworthy
review
of
the
Sovereign’s
rights
in
the
Mare
Anglicum,
purportedly
attributable
to
common
law,
was
delivered
at
Gray’s
Inn
by
Serjeant
Callis,
in
the
first
of
a
series
of
lectures
on
the
powers
and
duties
of
the
Commis-
sioners
of
Sewers
to
execute,
inter
alia,
coast
protection
works.
It
contained
a
defence
of
the
application
of
statutory
enactments
to
the
sea : ~
7
&dquo;...
I
hope
to
make
it
manifest
by
many
proofs
and
pre-
cidents
of
great
worth
and
esteem,
that
the
King
hath
therein
these
powers
and
properties,
videlicet.
1.
Imperiui-n
Regale.
2.
Potestateni
legaleni.
3.
Proprietatem
tam
soli
quam
aquae.
4.
Possessionem
cYc
Proficuum
tam
Reale
quam
Person-
ale.
And
all
these
he
hath
by
the
Common
Laws
of
England : &dquo;
Callis’
speech
constitutes
probably
the
earliest
respectable
analysis
of
this
subject,
and,
although
he
occasionally
invokes
biblical
corroboration,
his
arguments
are
based
strictly
on
the
evidence
of
five
statutes,8
the
Admiral’s
charter,
two
cases9
and
the
writings
of
Bracton.&dquo;10
He
acknowledges,
but
attempts
to
distinguish,
two
apparently
contrary
authorities,&dquo;’
and
concludes:,12
5
"captos
in
mari
vel alibi
infra
regnü."
6
See
J.
W.
Pycroft,
Memoranda.
Dover
Castle
and
Fortifications.
A
printed
letter
to
the
Clerk
of
the
Peace,
E.
Woollaston
N.
Knocker.
Esq.,
Dover.
March
14,
1882.
7
The
Reading
of
That
Famous
and
Learned
Gentleman,
Robert
Callis
Esq.,
Sergeant
at
Law,
Upon
the
Statute
of
23
H.
8.
Cap.
5.
of
Sewers,
1st
Edn.
(1647),
p.17.
8
Prerogativa
Regis,
c.
13
(see
n.
4,
supra);
18
Ed.
3
St.
2.
c.
3;
6
Ric.
2.
St.
1.
c.
8;
31
Hen.
6.
c.
4;
28
Hen.
8.
c.
15.
9
Sir
Henry
Constable’s
Case
(1601)
5
Co.
Rep.
106
a;
Royal
Fishery
of
Banne
Case
(1610)
Dav.
Ir.
55.
10
Henrici
de
Bracton
de
legibus
et
consuetudinibus
Angliae,
lib.
2.
c.
24.
11
13
Ric.
2.
St.
1.
c.
5;
Lacy’s
Case
(1583)
1
Leonard
270.
12
Op.
cit.
p.19.
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