§ 56. 1. The territory of a state includes all that portion of terra firma which lies within the boundaries of the state, what is teras well as the waters, that is, the interior seas, lakes, ritory? and rivers wholly contained within the same lines. Thus the sea of Azof, the Volga, Lake Michigan, the Ohio, and the Sea of Marmora are exclusively in the territories respectively of Russia, the United States, and Turkey. It may happen that the boundaries of a state are not continuous, or that one part of it is separated from another, as the Rhine-provinces of Prussia were formerly cut off by Hesse, etc., from the rest of the kingdom. Or it may happen that one sovereignty, or a portion of it, is included within the limits of another. This has been the case more or less in Germany, and was formerly true of Avignon and the Venaissin, which were Papal territory enclosed in France - hence called enclaves. 2. The mouths of rivers, bays, and estuaries, furnishing access to the land. 3. The coast-sea to the distance of a marine league. This is a regulation dictated by the necessities of self-protection, as is expressed in the maxim of Bynkershoek, "Terræ potestas finitur ubi finitur armorum vis." For the police of commerce the distance is extended to four leagues, that is, according to the usage prevailing in Great Britain and the United States, foreign goods cannot be transhipped within that distance without the payment of duties. The extent of coast-sea included within national territory has been variously defined. Bynkershoek, and others after him, limit it by the reach of cannonshot; "quousque tormenta exploduntur." ("De Domin. Mar.," cap. 2, from which place the maxim above cited is taken.) Rayneval limits it by the horizon, a very vague and absurd suggestion; Valin, by the depth of the sea: territory should reach out (he would propose) to where there is no bottom. Modern writers, whether limiting it by a marine league, or by cannon shot, agree substantially in making it an incident to territorial sovereignty on the land. Compare Ortolan, "Diplom. de la Mer," vol. i., chap. 8. As the range of cannon is increasing, and their aim becoming more perfect, it might be thought that the sea line of territory ought to widen. But the point is not likely to become one of any great importance. National the coast-sea § 57. The right to some kind and degree of jurisdiction over a belt of coast-sea is now admitted by writers on intercharacter of national law of all Christian nations,1 and appears in continued. a number of treaties; and yet it was not recognized in Roman law, nor held to by Grotius in a precise sense, nor with a precise limit. He, however, admits that a portion of the sea may be occupied by him who possesses the land on each side, "dummodo non ita magna sit pars maris, ut non, cum terris comparata, portio earum videri possit." But here he seems to be thinking of the coasts of gulfs and bays (ii., 3, 8). From Bynkershoek came the modern, more precise rule; which first limited the territorial right by a cannon shot and then by a marine league. The reason for the limitation seems to have been to remove the alarms and dangers of foreign war from the shores of friendly states. An important question is, How much or what degree of right a state has over that part of the high sea which washes its shores. The answer must be that the right is a limited one. No vessel pursuing its way on the high seas can commit an offense by sailing within a marine league of the shore. No restriction would be possible, and the liberty of the sea to all must not be interfered with, unless for an important reason. Such a reason is found in the need of security and of freedom from disturbance of the dwellers on the coast, or of those who, like fishermen, pursue their employments on the adjoining sea; and in the possible injury to the revenue, if foreign vessels could take a position remote from a port, where by means 1 Among the publicists we may mention besides Bynkershoek, Vattel, Liv. 1, § 288; Phillimore, i, ch. 8; Twiss, Rights, etc., in Peace, § 172; Sir E. Creasy, § 241; Heffter, ed. 5, § 75; Klüber, Morstadt's revis., § 130; Ortolan, Liv. ii, chap. 8, p. 154, and the authors there cited; Hautefeuille, Tit. 1, chapter iii, sec. 1; Kent and Wheaton; Calvo, Liv. v., § 201. of small craft they could send their goods to the shore or otherwise evade the laws. As for the right of preventing foreign fishermen from catching fish within a marine league of land, and the right of forbidding the transshipment of foreign goods, without paying duties, at a still greater distance, they will be noticed elsewhere. §§ 59, 212. An important inquiry is whether crimes committed within this belt of sea by persons on foreign vessels come within the jurisdiction of the courts of the adjoining land, or of the country to which the vessel belongs on board of which the crime was committed. If the crime took place on a vessel which was on its way and happened to be within this belt, and the injured party was one of the passengers, the vessel's sovereign would without question have the jurisdiction. But what ought to be said of an injury committed within such waters by a foreign vessel where the injured person was wholly disconnected from the vessel? Such a case occurred in 1876, where the Franconia, a German steamer, came into a collision with a British steamer within British waters less than three miles from the coast; which collision resulted in the death of several persons on board of the latter. The German captain, being found on English soil afterwards, was arrested, tried, and found guilty of homicide, but on appeal to the highest court, was acquitted on the ground that he was "a foreign subject, on a foreign ship, on a foreign voyage, and on the high seas at the time the offense was committed, and so not amenable to the laws of the country; there was, therefore, no jurisdiction to try him, and consequently the conviction was illegal." Such was the opinion of the Chief Justice, and six of the other judges out of twelve. But the decision was based on the consideration that mere international law, without a law of Parliament, could not give authority to act in the case, could not allow the judges to try a foreigner committing a crime on a foreign vessel within the marine league of land. The Chief Justice says, that "if by the assent of other nations the three miles belt of sea has been brought under the dominion of this country, so that consistently with the rights of other nations, it may be treated as a portion of British territory, it follows as a matter of course that Parliament can legislate in respect of it. The question is whether legislative action shall be applied to meet the exigency of the case, or judicial authority shall be strained and misapplied in order to overcome the difficulty." And another of the justices said that, "although, as between nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm; and any exercise of criminal jurisdiction over a foreign ship in these waters must in [his] judgment be authorized by act of Parliament." Thus the case somewhat resembled that of a crime defined by treaty without a law being made by a legislature to prescribe the penalty. A court could not act upon the case. But the right of the legislature to make the necessary laws, or, in other words, the right of criminal jurisdiction within the three miles seemed to be affirmed. And indeed, on the whole the forum of the territory, nearest to which the injury occurred or the crime was committed, seems to be by far the most convenient place for obtaining justice. § 58. 4. Vessels belonging to the citizens of the nation on the high seas, and public vessels, wherever found, have some of the attributes of territory. Are vessels on the sea territory. In regard, however, to the territorial character of vessels it is necessary to be more definite, for if they have this property in some respects but not in all, only false and illogical deductions can be drawn from an unqualified statement. Is it true, then, that they are identical in their properties with territory? If a ship is confiscated on account of piracy or of violation of custom-house laws in a foreign port, or is there attached by the owner's creditor and becomes his property, we never think that territory has been taken away. For a crime committed in port a vessel may be chased into the high seas and there arrested, without a suspicion that territorial rights have been violated, while to chase a criminal across the bor ders and seize him on foreign soil is a gross offense against sovereignty. Again, a private vessel when it arrives in a foreign port, ceases to be regarded as territory, unless treaty provides otherwise, and then becomes merely the property of aliens. If injury is done to it, it is an injury which indirectly affects the sovereign of the alien, whereas injuries to territory, properly so called, affect the public power in an immediate manner. It is unsafe, then, to argue on the assumption that ships are altogether territory, as will appear, perhaps, when we come to consider the laws of maritime warfare. On the other hand, private ships have certain qualities resembling those of territory: (1.) As against their crews on the high seas; for the territorial or municipal law accompanies them as long as they are beyond the reach of other law, or until they come within the bounds of some other jurisdiction. (2.) As against foreigners, who are excluded on the high seas from any act of sovereignty over them, just as if they were a part of the soil of their country. Public vessels stand on higher ground: they are not only public property, built or bought by the government, but they are, as it were, floating barracks, a part of the public organism, and represent the national dignity, and on these accounts, even in foreign ports, are exempt from the local jurisdiction. In both cases, however, it is on account of the crew, rather than of the ship itself, that they have any territorial quality. Take the crew away, let the abandoned hulk be met at sea: it now becomes property, and nothing more. § 59. It Freedom of the high seas and of fishing there. The high sea is free and open to all nations. It cannot be the property or the empire of a particular state. cannot become property, for it cannot be possessed, or have any personal action exercised upon it, which must prevent a similar action of another. It cannot be mixed up with labor, or enclosed, or, like wild land, be waiting for any such future action. It can, as little, become the empire of any particular state. Otherwise one state might exclude |