so far a portion of the high seas as to be still within the jurisdiction of the admiral, is part of the territory of the realm, so as to make a foreigner in a foreign ship, within such belt, though on a voyage to a foreign port, subject to our law, which it is clear he would not be on the high sea beyond such limit. It is necessary to keep the old assertion of jurisdiction and that of to-day essentially distinct, and it should be borne in mind that it is because all proof of the actual exercise of any jurisdiction by the admiral over foreigners in the narrow seas totally fails, that it becomes necessary to give to the three-mile zone the character of territory in order to make good the assertion of jurisdiction over the foreigner therein.

Now, it may be asserted without fear of contradiction that the position that the sea within a belt or zone of three miles from the shore, as distinguished from the rest of the open sea, forms part of the realm or territory of the Crown is a doctrine unknown to the ancient law of England, and which has never yet received the sanction of an English criminal court of justice.1

From the review of these authorities we arrive at the following re sults. There can be no doubt that the suggestion of Bynkershoek, that the sea surrounding the coast to the extent of cannon-range should be treated as belonging to the state owning the coast, has, with but very few exceptions, been accepted and adopted by the publicists who have followed him during the last two centuries. But it is equally clear that, in the practical application of the rule, in respect of the particular of distance, as also in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, great difference of opinion and uncertainty have prevailed, and still continue to exist.

As regards distance, while the majority of authors have adhered to the three-mile zone, others, like M. Ortolan and Mr. Halleck, applying with greater consistency the principle on which the whole doctrine rests, insist on extending the distance to the modern range of cannon, — in other words doubling it. This difference of opinion may be of little practical importance in the present instance, inasmuch as the place at which the offence occurred was within the lesser distance; but it is, nevertheless, not immaterial as showing how unsettled this doctrine still is. The question of sovereignty, on the other hand, is all-important. And here we have every shade of opinion.

One set of writers, as, for instance, M. Hautefeuille, ascribe to the state territorial property and sovereignty over the three miles of sea, to the extent of the right of excluding the ships of all other nations, even for the purpose of passage, a doctrine flowing immediately from the principle of territorial property, but which is too monstrous to be admitted. Another set concede territorial property and sovereignty, but make it subject to the right of other nations to use these waters for the purpose of navigation. Others again, like M. Ortolan and M.

1 The learned Chief Justice then examined the opinions of writers upon Interna tional Law as to territorial jurisdiction over the littoral seas. - ED.

Calvo, deny any right of territorial property, but concede "jurisdiction;" by which I understand them to mean the power of applying the law, applicable to persons on the land, to all who are within the territorial water, and the power of legislating in respect of it, so as to bind every one who comes within the jurisdiction, whether subjects or foreigners. Some, like M. Ortolan, would confine this jurisdiction to purposes of "safety and police," by which I should be disposed to understand measures for the protection of the territory, and for the regulation of the navigation, and the use of harbors and roadsteads, and the maintenance of order among the shipping therein, rather than the general application of the criminal law.

Other authors - for instance, Mr. Manning- I would restrict the jurisdiction to certain specified purposes in which the local state has an immediate interest, namely, the protection of its revenue and fisheries, the exacting of harbor and light dues, and the protection of its coasts in time of war.

Some of these authors

- for instance, Professor Bluntschli — make a most important distinction between a commorant and a passing ship. According to this author, while the commorant ship is subject to the general law of the local state, the passing ship is liable to the local jurisdiction only in matters of "military and police regulations, made for the safety of the territory and population of the coast." None of these writers, it should be noted, discuss the question, or go the length of asserting that a foreigner in a foreign ship, using the waters in question for the purpose of navigation solely, on its way to another country, is liable to the criminal law of the adjoining country for an offence committed on board.

Now, when it is remembered that it is mainly on the statements and authority of these writers, and to opinions founded upon them, that we are called upon to hold that foreigners on the so-called territorial sea are subject to the general law of this country, the discrepancy of opinion which I have been pointing out becomes very material. Looking to this, we may properly ask those who contend for the application of the existing law to the littoral sea independently of legislation, to tell us the extent to which we are to go in applying it. Are we to limit it to three miles, or to extend it to six? Are we to treat the whole body of the criminal law as applicable to it, or only so much as relates to "police and safety"? Or are we to limit it, as one of these authors proposes, to the protection of fisheries and customs, the exacting of harbor and light dues, and the protection of our coasts in time of war? Which of these writers are we to follow? What is there in these conflicting views to guide us, in the total absence of precedent or legal sanction, as to the extent to which we may subject foreigners to our law? What is there in them which authorizes us to assume not only that Parliament can of right deal with the three-mile zone as forming part of our territory, but also that, by the mere assent of other nations, the sea to this extent has become so completely a part of our

territory as to be subject, without legislation, to the whole body of our existing law, civil and criminal?

But it is said that, although the writers on international law are disagreed on so many essential points, they are all agreed as to the power of a littoral state to deal with the three-mile zone as subject to its dominion, and that consequently we may treat it as subject to our law. But this reasoning strikes me as unsatisfactory; for what does this unanimity in the general avail us when we come to the practical application of the law in the particular instance, if we are left wholly in the dark as to the degree to which the law can be legitimately enforced? This unanimity of opinion that the littoral sea is, at all events for some purposes, subject to the dominion of the local state, may go far to show that, by the concurrence of other nations, such a state may deal with these waters as subject to its legislation. But it wholly fails to show that, in the absence of such legislation, the ordinary law of the local state will extend over the waters in question, — which is the point which we have to determine.

Not altogether uninfluenced, perhaps, by the diversity of opinion to which I have called attention, the argument in support of the prosecution presents itself—not without some sacrifice of consistency — in more than one shape. At one time it is asserted that, for the space of three miles, not only the sea itself, but the bed on which it rests, forms part of the territory or realm of the country owning the coast, as though it were so much land; so that the right of passage and anchorage might be of right denied to the ships of other nations. At another time it is said that, while the right is of a territorial character, it is subject to a right of passage by the ships of other nations. Sometimes the sovereignty is asserted, not as based on territorial right, but simply as attaching to the sea, over which it is contended that the nation owning the coast may extend its law to the foreigner navigating within it.

To those who assert that, to the extent of three miles from the coast, the sea forms part of the realm of England, the question may well be put, when did it become so? Was it so from the beginning? It certainly was not deemed to be so as to a three-mile zone, any more than as to the rest of the high seas, at the time the statutes of Richard II. were passed. For in those statutes a clear distinction is made between the realm and the sea, as also between the bodies of counties and the sea; the jurisdiction of the admiral being (subject to the exception. already stated as to murder and mayhem) confined strictly to the latter, and its exercise within the realm" prohibited in terms. The language of the first of these statutes is especially remarkable:

“The admirals and their deputies shall not meddle from henceforth with anything done within the realm of England, but only with things done upon the sea."

It is impossible not to be struck by the distinction here taken between the realm of England and the sea; or, when the two statutes are taken

together, not to see that the term "realm," used in the first statute, and bodies of counties," the term used in the second statute, mean one and the same thing. In these statutes the jurisdiction of the admiral is restricted to the high seas, and, in respect of murder and mayhem, to the great rivers below the bridges, while whatever is within the realm, in other words, within the body of a county, is left within the domain of the common law. But there is no distinction taken between one part of the high sea and another. The three-mile zone is no more dealt with as within the realm than the seas at large. The notion of a three-mile zone was in those days in the womb of time. When its origin is traced, it is found to be of comparatively modern growth. The first mention of it by any writer, or in any court of this country, so far as I am aware, was made by Lord Stowell, with reference to a question of neutral rights, in the first year of the present century, in the case of The Twee Gebroeders, 3 C. Rob. 162. To this hour it has not, even in theory, yet settled into certainty. For centuries before it was thought of, the great landmarks of our judicial system had been set fast - the jurisdiction of the common law over the land and the inland waters contained within it, forming together the realm of England, that of the admiral over English vessels on the seas, the common property or highway of mankind.

But I am met by authority, and, beyond question, ancient authority, may be found in abundance for the assertion that the bed of the sea is part of the realm of England, part of the territorial possessions of the Crown. Coke, commenting on § 439 of Littleton, says, in explaining the words "out of the realm :

"If a man be upon the sea of England, he is within the kingdom or realme of England, and within the ligeance of the King of England, as of his crowne of England. And yet altum mare is out of the jurisdiction of the common law, and within the jurisdiction of the lord admirall."

So Lord Hale, no doubt, in his work De Jure Maris, speaks of the narrow seas, and the soil thereof, as "part of the King's waste, demesnes, and dominions, whether in the body of a county or not." But this was said, not with reference to the theory of the three-mile zone, which had not then been thought of, but (following Selden) to the wild notion of sovereignty over the whole of the narrow seas. This pretension failing, the rest of the doctrine, as it seems to me, falls with it. Moreover, Hale stops short of saying that the bed of the sea forms part of the realm of England, as a portion of its territory. He speaks of it under the vague terms of "waste," "demesnes," or "dominions." He carefully distinguishes between the parts of the sea which are within the body of a county and those which are not.

It is true that, in his later work on the Pleas of the Crown, Lord Hale, speaking in the chapter on Treasons (vol. i. p. 154), of what is a levying of war against the King "within the realm," according to the

required averment in an indictment for that offence, instances the hostile invasion of the King's ships (" which," he observes, "are so many royal castles "); and this, he says, "is a levying of war within the realm;" the reason he assigns being that "the narrow seas are of the ligeance of the Crown of England," for which he cites the authority of Selden. Here, again, we have Lord Hale blindly following "Master Selden," in asserting that the narrow seas owe allegiance to the Crown of England. A hostile attack by a subject on a ship of war on the narrow seas would, I need scarcely say, be a levying of war against the sovereign, but it could not now be said to be high treason as having been done within the realm.

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Blackstone (Comm. vol. i. p. 110) says that "the main or high seas (which he afterwards describes as beginning at low-water mark) are part of the realm of England," here Mr. Stephen, feeling that his author was going too far, interposes the words "in one sense," "for thereon," adds Blackstone, "our courts of Admiralty have jurisdiction; but they are not subject to the common law." This is, indeed, singular reasoning. Instead of saying that, because these seas are part of the realm of England, the Courts of Admiralty have jurisdiction over them, the writer reverses the position, and says, that because the Admiralty has jurisdiction these seas are part of the realm, - which certainly does not follow. If it did, as the jurisdiction of the Admiralty extended, as regards British ships, wherever the sea rolls, the entire ocean might be said to be within the realm.

But to what, after all, do these ancient authorities amount? Of what avail are they towards establishing that the soil in the three-mile zone is part of the territorial domain of the Crown? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists? What English lawyer is there who would not shrink from maintaining what foreign jurist who would not deny what foreign government which would not repel such a pretension? I listened carefully to see whether any such assertion would be made; but none was made. No one has gone the length of suggesting, much less of openly asserting, that the jurisdiction still exists. It seems to me to follow that when the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is gone, the territorial property which was suggested to be consequent upon it must necessarily go with it.

But we are met here by a subtle and ingenious argument. It is said that although the doctrine of the criminal jurisdiction of the admiral over foreigners on the four seas has died out, and can no longer be upheld, yet, as now, by the consent of other nations, sovereignty over this territorial sea is conceded to us, the jurisdiction formerly asserted may be revived and made to attach to the newly-acquired domain. I am unable to adopt this reasoning. Ex concessis, the jurisdiction over