National Domain

Internationally, nations are defined by geographical boundaries or borders. Certain aspects of national sovereignty relate to this geographical definition. One of these aspects is the concept of ownership or "title and dominion" among nations, to land/water/air and other resources.

Arguments in the U.S. Supreme Court case of Martin v. Waddell's Lessee, 41 U.S. 367 (1842) cite the "law of nations" regarding ownership among nations and the investiture of the sovereign king or queen with allodial title to its lands and resources:

"The laws of nature and nations establish the following propositions, pertinent to this question: 1. Every nation is the proprietor [owner] as well of the rivers and seas as of the lands within its territorial limits. Vattel 120, 266. 2. The sea itself, to a certain extent, and for certain purposes, may be appropriated and become exclusive property as well as the land. Vattel 127, 287; Ruth. book 1, ch. 5, p. 76, 3. 3. The nation may dispose of the property in its possession, as it pleases; may lawfully alienate or mortgage it. Vattel 117, 261-2. 4. The nation may invest the sovereign with the title to its property, and thus confer upon him the rights to alienate or mortgage it. Vattel 117, 261-2. The laws of England establish the following propositions material to this point: 1. The common law of England vests in the king the title to all public property. 1 Bl. Com. ch. 8, 298-9; 2 Ibid. 15, 261-2; Harg. Law Tracts, de Jure Maris, ch. 4, 10, 11, 12; 6 Com. Dig. tit. Prerogative, 60, B. 63; Tenure 337; 5 Com. Dig. tit. Navigation, 107; 3 Co. 5, 109. 2."


Justice Taney for the Court in Martin v. Waddell's Lessee, describes the role of the English Crown in receiving title to discoveries of vacant wastelands as national domain:

"The country mentioned in the letters-patent was held by the king in his public and regal character, as the representative of the nation, and in trust for them. The discoveries made by persons acting under the authority of the government were for the benefit of the nation; and the crown, according to the principles of the British constitution, was the proper organ to dispose of the public domains; and upon these principles rest the various charters and grants of territory made on this continent. The doctrine upon this subject is clearly stated in the case of Johnson v. McIntosh, 8 Wheat. 595. In that case, the court, after stating it to be a principle of universal law, that an uninhabited country, if discovered by a number of individuals who owe no allegiance to any government, becomes the property of the discoverers, proceed to say, that, 'if the discovery be made and possession taken under the authority of an existing government, which is acknowledged by the emigrants, that the discovery is made for the benefit of the whole nation; and the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains; by that organ, in which all territory is vested by law. According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation, and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognised in America as in the island of Great Britain.'"


Similarly, the Crown held national title to "the sea and its arms." This included the marginal lands under the sea from the low water mark along the shoreline, bays and inlets, outwards to the 3 mile limit; the lands underlying navigable rivers and other submerged lands effected by the ebb and flow of the tides to the high water mark. Such navigable rivers were termed "Royal Rivers." [Banne Case, Davies 155; Shultze on Aquatic Rights; 1 Bl. Com. 264.]


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