over ad joining seas. Dominion the sea with so much indulgence. He said, “Strictly speaking, the nature of the claim brought forward is against the general inclination of the law, for it is a claim of private and exclusive property where a general or at least a common use is to be presumed.......In the sea, out of the reach of cannon-shot, universal use is presumed. In rivers flowing through conterminous states a common use to the different states is presumed. Yet in both of these cases there may, by legal possibility, exist a peculiar property, excluding the universal, or the common use1. But the general presumption certainly bears strongly against such exclusive rights." The claim of Russia to sovereignty over the Pacific ocean north of the 51st degree of latitude, as a close sea, was considered by the American government, in 1822, to be against the rights of the other nations. It is difficult to draw any precise or determinate conclusion, amidst the variety of opinions, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbours, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends3. All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea, extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force, and maritime supremacy. According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as a cannon-shot will reach, and no farther, and this is usually calculated to be a marine league [or three miles, the maxim in which this doctrine is embodied being 'terræ 1 The ability of the writers and the relative merits of the controversy are briefly discussed by Mr Manning, Law of Nations, p. 25, and a summary of the whole argument will be found in a note by Mr Butler. Co.-Littleton, 107 (a), n. 6, and 260 (b), n. 1. See also De Rayneval, De la Liberte des Mers, T. 11. pp. 1–108. Hautefeuille, Droits des Nations Neutres, T. 1. tit. i. ch. 1, sect. 4, § 2, and Pistoye et Duverdy, Prises Maritimes, T. 1. tit. xi. ch. I. 2 Mr Adams' Letter to the Russian Minister, March 30th, 1822. Wheaton's Elements, Vol. 1. ed. by W. B. Lawrence, 1863, p. 307 and p. 314. 3 Azuni on the Maritime Law of Europe, Vol. 1. p. 206. Wheaton's Elements, Vol. 1. pt. 2, ch. 4, § 6. Marten's Précis du Droits des Gens, § 31, ed. 1858, by Vergé, n. p. 138. views as to domi seas. finitur dominium ubi finitur armorum vis']; this limita- American tion was recognized by the Congress of the United States when they authorized the District Courts to take cogni- nion in adjoining zance of all captures made within a marine league of the American shores'. The executive authority of that country, in 1793, considered the whole of Delaware bay to be within its territorial jurisdiction; resting its claims upon those authorities which admit that gulfs, channels, and arms of the sea belong to the people with whose lands they are encompassed; and it was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea, beyond the reach of cannon-shot". Considering the great extent of the line of the American coasts, their writers contend that they have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; nor would it be unreasonable, as they say, to assume, for domestic purposes connected with their safety and welfare, the control of the waters on their coasts, though included within lines stretching from quite distant headlands; as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauck Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi. It is certain that their government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the use of the waters of their coast, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes. In 1793 the government of the United States thought they were entitled, in reason, to as broad a margin of protected navigation, as any nation whatever, though at that time they did not positively insist upon more than 1 Bynk. Q. Pub. J. c. 8. Vattel, b. 1. c. 23, sect. 289. Act of Congress, June 5th, 1794, ch. 50. Th. Ortolan, Règles Internationales, T. 1. liv. 11. ch. 8. Massé, Le Droit Commercial dans des Rapports, &c., T. I. Hautefeuille, Droits et Devoirs des Nations Neutres, Tome 1. tit. i. ch. 3, § 1. De Cussy, Phases et Causes, &c. T. 1. liv. 1. tit. xl. Klüber, ed. 1861, by Mons. D. Ott, § 131, n (a). 2 Opinion of the Attorney-General concerning the seizure of the ship Grange, dated 14th of May, 1793, and the Letter of Secretary of State to the French minister, of 15th of May, 1793. American State Papers, 1789-91, Vol. 1. pp. 72-76. ECA DON over the seas adjoining shores. Dominion the distance of a marine league from the sea shores'; and, in 1806, they thought it would not be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare, for the space between that limit and the American shore. It ought, at least, to be insisted, they urged, that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within "the chambers formed by headlands, or any where at sea within the distance of four leagues, or from a right line from one headland to another." In the case of the Little Belt, which was cruising many miles from shore between Cape Henry and Cape Hatteras, the government of the United States laid stress on the circumstance that she was "hovering on our coasts;" and it was contended on their part, that they had a right to know the national character of armed ships in such a situation, and that it was a right immediately connected with their tranquillity and peace. It was further observed, that all nations exercise the right, and none with more rigour, or at a greater distance from the coast, than Great Britain, and none on more justifiable grounds than the United States. There can Case of the Little Belt. Case of the Le Louis. be but little doubt that the more the United States advance in commerce and naval strength the more will their government be disposed to feel and acknowledge the justice and policy of the British claim to supremacy over the narrow seas adjacent to the British isles, because they will stand in need of similar accommodation and means of security. In the case of the Le Louis, it was declared that maritime states claim, upon a principle just in itself, and 1 Mr Jefferson's Letter to M. Genet, November 8th, 1793. Jefferson's Memoirs, Vol. III. p. 302. 2 Mr Madison's Letter to Messrs Monroe and Pinckney, dated May 17th, 1806. American State Papers, Vol. vI. pp. 236–244. 3 Mr Monroe's Letter to Mr Foster, October 11th, 1811, and President's Message, November 5th, 1811. The whole correspondence on this subject will be found in the American State Papers, Vol. vi. pp. 104-126. 4 2 Dodson's Adm. Rep. 245, and Append. (C.) 2 Cranch, 187 (American). over the seas adthe shore. joining Case of the Anna. British temperately applied, a right of visitation and search Dominion within those parts of the ocean adjoining their shore [and in the Anna' the question as to what was shore being raised, upon a capture alleged to have been made within neutral territory, viz. at the mouth of the Mississippi, where lay a number of small mud islands, forming a kind of portico to the land, Lord Stowell held, that the protection of the territory was to be reckoned from these islands, which were the natural appendages of the coast on which they bordered; which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominion for fiscal or defensive regulations more immediately affecting their safety and welfare, such, for instance, as their hovering laws, which within certain limited distances subject foreign vessels to examination. Indeed, so far back as the time of James I. (according to Sir Leoline Jenkins) it was found necessary to make provision for the protection of English merchant-vessels against the danger of foreign ships of war roving or hovering near enough to the coasts and harbours of Great Britain to annoy or threaten them in their outward and homeward voyages. By a royal declaration, published A.D. 1604, in that reign, and by another in the reign of Charles II. in addition to express prohibitions of such roving or hovering, it was enacted, that captures by foreign cruisers, even of enemies' ships, would be restored by the Court of Admiralty, if made within certain limits known as the King's Chambers, that is, parts of the sea cut off by lines drawn from promontory to promontory, within which spaces this country has ever claimed exclusive jurisdiction. Hence, in 1736, a revenue act, known as the "Hovering Act" (9 Geo. II. c. 35), was passed prohibiting foreign goods to be transhipped within four leagues of the coast without payment of dues. Adopting the same principles, the United United States government claims exclusive jurisdiction over De Laws. laware Bay, and other bays and estuaries forming portions of their territory, and has made a similar provision for the safety and protection of their revenue laws3, the 15 Robinson, 385. 2 Life of Sir L. J., Vol. 1. pp. 727, 728, 780. Vattel, Book 1. ch. xxiii. § 288, and Chitty's Commercial Law, Vol. 1. pp. 770-775. 3 Wheaton's Elements, ed. 1863, Vol. 1. p. 323. Hovering Laws. States Dominion exercise of such jurisdiction being declared to be conover seas formable to the laws and usages of nations'. adjoining shores. Summary of the rules relating to open and In reviewing the doctrines of International Law on the subjects just discussed they may be exhibited in a summary shape. And first, as regards the open sea, or ocean, there can close seas. be no exclusive property acquired, inasmuch as it is an element free to all men, and its use is common. Next, as regards maritime territory, or that portion of the sea which lies near to and washes the coast. A state may claim exclusive jurisdiction in the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to that state, though at the same time it may, if it please, modify this exclusive right by compact. [In the year 1876 an important question was raised before the Court of Criminal Appeal in England as to the exact nature of this claim of territorial jurisdiction over the sea in the following case: The Queen v. Keyn. The question then raised was whether a foreigner running down an English ship with criminal carelessness close to English coast and drowning English subjects was liable in the Criminal Courts of England. At the trial at the Central Criminal Court in London the jury found that the accused, who was the captain of a German vessel called the Franconia, with culpable or criminal carelessness ran down a British steamer called the Strathclyde, less than three miles off Dover. At the trial one point raised by the defendant's counsel was that being a foreigner and in a foreign ship passing on the high seas in the exercise of the free right of navigation on the seas from one foreign port to another, the Crown had no jurisdiction; on the other hand, the counsel for the Crown contended that he was liable because the sea for three miles round the coast is subject to the sovereignty of the Crown, and therefore to the jurisdiction of the Criminal Courts. Upon this reserved point the question was argued before six Judges, five of whom were in favour of the defendant and one against him; the question was therefore re-argued in November, 1876, before fourteen Judges, three of whom were the Chiefs of the 1 Church v. Hubbard, 2 Cranch, 187, American Reports. 2 Wheaton's Elements, ed. 1863, Vol. 1. p. 342. Phillimore, Vol. I. Part III. ch. 6-8. |