mark and the low water mark, where the tide ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction, one upon the water, when it is full sea; the other upon the land, when it is an ebb.[1] He doubtless here refers to the waters of the ocean on the sea-coast, and not in creeks and inlets. Lord Hale says, that the sea is either that, which lies within the body of the county or without. That, which lies without the body of a county, is called the main sea, or ocean.[2] So far, then, as regards the states of the Union, "high seas" may be taken to mean that part of the ocean, which washes the sea-coast, and is without the body of any county, according to the common law; and, so far as regards foreign nations, any waters on their sea-coast, below low-water mark.[3]
§ 1160. Upon the propriety of granting this power to the national government, there does not seem to have been any controversy; or if any, none of a serious nature. It is obvious, that this power has an intimate connection and relation with the power to regulate commerce and intercourse with foreign nations, and the rights and duties of the national government in peace and war, arising out of the law of nations. As the United States are responsible to foreign governments for all violations of the law of nations, and as the welfare of the Union is essentially connected with the conduct of our citizens in regard to foreign nations, congress ought to possess the power to define and- ↑ 1 Black. Comm. 110; Constable's case, 5 Co. R. 106; 3 Inst. 113; 2 East's P. C. 802, 803.
- ↑ Hale in Harg. Law Tracts, ch. 4, p. 10; 1 Hale P. C. 423, 424.
- ↑ See Rawle on the Const. ch. 9, p. 107; Sergeant on the Const. ch. 28, [ch. 30;] 1 Kent's Comm. Lect. 17, p. 342, &c.; United States v. Grush, 5 Mason's R. 290.
vol. iii.8
