of the Ems, within what I think may be considered at a distance of three miles at most from East Friesland. I am of opinion that the ship was lying within those limits in which all direct operations are by the law of nations forbidden to be exercised. No proximate acts of war are in any manner to be allowed to originate on neutral ground, and I cannot but think that such an act as this, that a ship should station herself on neutral territory and send out her boats on hostile enterprises, is an act of hostility much too immediate to be permitted. The capture cannot be main tained.' In another case-that of the 'Maria'-Lord Stowell said : 'It might likewise be improper for me to pass over entirely without notice, as another preliminary observation, though without meaning to lay any particular stress on it, that the transaction in question took place in the British Channel, close upon the British coast, a station over which the Crown of England has from pretty remote antiquity always asserted something of that special jurisdiction which the Sovereigns of other countries have claimed and exercised over certain parts of the seas adjoining to their coasts.' He would now refer their lordships to an opinion expressed by Sir John Nicholl on a claim by a lord of a manor to goods derelict. Sir John said : 'As to the right of the lord extending three miles beyond low water, it is quite extravagant as a jurisdiction belonging to any manor. As between nation and nation, the territorial right may, by a sort of tacit understanding, be extended to three miles; but that rests upon different principles-viz., that their own subjects shall not be disturbed in their fishing, and particularly in their coasting trade and communications between place and place during the war. They would be exposed to danger if hostilities were allowed to be carried on between belligerents nearer to the shore than three miles.' A case occurred when the Duke of Wellington held the office now held by his noble friend (Earl Granville). In 1829, within three miles of one of the Cinque Ports, some fishermen at sea were fortunate enough to discover a whale valued at 370l. A claim to the fish was made by the Lord Warden, and the Admiralty claimed against him. The learned Judge who tried the question came to the conclusion that the office of Lord Warden of the Cinque Ports was more ancient than that of Lord High Admiral, and the Lord Warden of the Cinque Ports succeeded in carrying away the whale. What were the views of Dr. Lushington? He said : 'What are the limits of the United Kingdom? The only answer I can conceive to that question is the land of the United Kingdom and three miles from the shore.' Again, the same learned Judge, speaking on the question of compulsory pilotage, said : 'The Parliament of Great Britain, it is true, has not, according to the principles of public law, any authority to legislate for foreign vessels on the high seas, or for foreigners out of the limits of British jurisdiction; though, if Parliament thought fit to do so, this Court, in its instance jurisdiction at least, would be bound to obey. In cases admitting of doubt, the presumption would be that Parliament intended to legislate without violating any rule of International Law, and the construction has been accordingly. Within, however, British jurisdiction, namely, within British territory, and at sea within three miles from the coast, and within all British rivers intra fauces, and over foreigners in British ships, I apprehend that the British Parliament has an undoubted right to legislate.' Then he would add to that the opinion of the late Lord Wensleydale in that House in Gemmell v. The Commissioners of Woods and Forests,' a well-known Scotch salmon fishery case :— 'It may be worth while to observe that it would be hardly possible to extend it seaward beyond the distance of three miles, which, by the acknowledged law of nations, belongs to the coast of the country, is under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession.' In advising that House in another case, a noble and learned friend (Lord Chelmsford), whom he was glad to see there to-night, and who held the office which he (the Lord Chancellor) had the honour to hold, said :— 'The three miles limit depends upon a rule of International Law, by which every independent State is considered to have territorial property and jurisdiction in the seas which wash their coast within the assumed distance of a cannon shot from the shore.' He would add to that the opinion expressed by another noble and learned friend of his (Lord Hatherley), whom he was also glad to see there. His noble and learned friend, in the case of a collision between a foreign and a British ship, said 'With respect to foreign ships, I shall adhere to the opinion which I expressed in "Cope v. Doherty," that a foreign ship meeting a British ship on the open ocean cannot properly be abridged of her rights by an Act of the British Legislature. Then comes the question, how far our Legislature could properly affect the rights of foreign ships within the limits of three miles from the coast of this country. There can be no possible doubt that the water below low-water mark is part of the high sea. But it is equally beyond question that for certain purposes every country may, by the common law of nations, exercise jurisdiction over that portion of the high seas which lies within three miles from its shores.' In the case of the 'Free Fisheries of Whitstable v. Gann,' Sir William Erle said : 'The soil of the sea-shore to the extent of three miles from the beach is vested in the Crown.' Now, these were the opinions-and as far as he was aware there was no opinion in the other way of the eminent judges who had considered this subject. He said he would inform their Lordships what had been done in the way of legislation. He might refer their Lordships to many Acts of Parliament, but he would only refer to one. He would take the last edition of the Foreign Enlistment Act. That was an Act which, if the words 'deliberation,'' care,' might ever be applied to the passing of an Act, might be applied to the passing of it. It was brought forward by the Government of the day under the advice of its legal advisers. It had also the gravest consideration from many persons outside the Government. What that Act did was this: it provided that this Act shall extend to all the dominions of Her Majesty, including the adjacent territorial waters.' He had troubled their lorships with these references because he felt bound, after the doubts supposed to be cast on the question, to establish the position that their lordships were entitled to legislate as he proposed. The right which we claimed over the high seas was a right which we had always exercised, and he asked their lordships to pass an Act for the purpose of obviating the doubts he had pointed out. Her Majesty's Government did not wish to make any new enactment as regarded the case of British subjects within the territorial waters of this country. No person doubted the full jurisdiction of the Crown over them. It was only in the case of those who were not British subjects that doubts had been expressed. With regard to those who might be foreigners, and temporarily within the three-mile limit, Her Majesty's Government wished that there should not be an absolute necessity of proceeding against them for a breach of our law. They proposed to enact that an offence committed by a person who was not a subject of Her Majesty on the open sea within the territorial waters of Her Majesty's dominions, although the offence might have been committed on board a foreign ship, might, with the consent of one of the principal Secretaries of State, be tried by a British tribunal. He asked their lordships to read the Bill a first time, and he proposed the second reading for this day week. Lord Selborne said, that as far as the case connected with the 'Franconia' proceeded on a technical ground for the trial of a criminal offence on the high seas, within the territorial waters of this country, he did not profess to entertain an opinion which would entitle him to criticise the judgment of the majority of the Judges; but he must say that on reading that judgment some doubt was entertained as to the existence in principle of the territorial right properly so called in the Sovereign of this country over waters which all writers on International Law had regarded as territorial waters. It was by the general consent of nations that the three-mile limit had been fixed, and within that limit other nations claimed exactly the same jurisdiction and rights that we ourselves claimed. The Bill proposed, very properly, to assert our right to punish criminal offences committed within that limit, and much prudence was shown in not seeking to extend by this measure our jurisdiction for this purpose beyond the three-mile limit. It had been argued that, in consequence of the increase in the range of artillery, that limit should be extended to five or even six miles; but although that might be a very sensible alteration to make in International Law, it should only be effected by the general consent of all nations. [The case of the 'Franconia,' quoted as Reg. v. Keyn, and the principal authorities on the questions of law involved, will be found. ante, in vol. i. p. 135.] INDEX. ACTOR SEQUITUR FORUM REI, i. 343; ii. 555 ADMIRALTY (BRITISH), circular (1876) as to salutes, i. 112 slave circular (1875), i. 208. See DROITS OF ADMIRALTY. jurisdiction of, as to foreign ships of war with illegal prize, i. 188 power of foreign consul to veto, i. 330 n. as to contraband, ii. 256, 262 criminal jurisdiction, ii. 192 n. how far a prize court, ii. 416 prize cause proceedings in, ii. 417 n. sentence of a foreign admiralty court how far evidence in, ii. 429 AFFIRMING GUN, ii. 29, 284 'ALABAMA, case of the, i. 188 ALIEN. See FOREIGNERS. ALLEGIANCE, native, i. 338 local, i. 349 n. natural, 349 n. in the United States, i. 352 et seq. transfer of, during hostilities, i. 376 of inhabitants of territory in military occupation, i. 377, ii. 462 conquered territory, i. 360, ii. 485 rule of international law with respect to transfer of, ii. 187 evidence as to transfer of, ii. 488 remarks on the modern rule, as to, ii. 489 ALLIANCE, TREATIES OF, i. 236 how affected by declaration of war, i. 497 legal effects of, ii. 55 casus fœderis, ii. 56 offensive and defensive, ii. 57 how far binding, ii. 58 distinction between, and treaties of succour, ii. 59 conflicts from, ii. 62 questions as to, submitted by General Washington in 1793 to his cabinet ministers, ii. 65 distinction between qualified neutrality and, ii. 66 |