66

66

Reciprocity Treaty already mentioned. It gave to citizens of the United States, in addition to their rights under the Treaty of 1818, the right to take fish, except shellfish, on "the sea coasts and shores, and in the bays, harbours, and "creeks of Canada, New Brunswick, Nova Scotia, and Prince "Edward's Island, and of the several islands thereunto ad"jacent, without being restricted to any distance from the shore," with permission to land for the purpose of drying nets and curing fish. Corresponding rights were given to British subjects to take sea fish and to land and dry nets on the coast of the United States north of latitude 36 deg. N. The Treaty did not embrace the salmon and shad fisheries, or the fisheries at the mouths of rivers. But we have already observed that the United States, using the power given them by the Treaty, put an end to it in 1865 (r).

One of the provisions of the Treaty of Washington of May 1871 established a tribunal of Arbitrators to award upon the claim of Canada to compensation in respect of her fisheries from the United States (s). The Halifax Fishery Commissioners awarded to Canada as a compensation five and a half millions of dollars. The American Commissioner, however, dissented from the award, and his dissent was the more important, because there was no special provision, as there was with regard to the Geneva arbitration, that the award of the majority should suffice. It was at one time uncertain what the United States would do in consequence of this omission: but in 1878 Congress passed a law providing for the payment of the indemnity.

(r) See Dana's Wheaton, n. 110, p. 206; Lawrence's Wheaton. The Revue des Deux Mondes, tom. xvi., Nov. 1874, contains an able article on Les Pécheries de Terre Neuve et les Traités.

(8) See Papers relating to the Treaty of Washington, published by the American Government. Washington 1872. 5 vols.

CHAPTER VIII.

PORTIONS OF THE SEA.

CXCVII. THOUGH the open sea be thus incapable of being subject to the rights of property, or jurisdiction, yet reason, practice, and authority have firmly settled that a different rule is applicable to certain portions of the sea (a).

CXCVIII. And first with respect to that portion of the sea which washes the coast of an independent State. Various claims have been made, and various opinions pronounced, at different epochs of history, as to the extent to which territorial property and jurisdiction may be extended. But the rule of law may be now considered as fairly establishednamely, that this absolute property and jurisdiction does not extend, unless by the specific provisions of a Treaty (b) or an unquestioned usage, beyond a marine league (being three miles), or the distance of a cannon-shot, from the shore at low tide: quousque e terra imperari potest, quousque "tormenta exploduntur,"-" terræ dominium finitur ubi "finitur armorum vis,”—is the language of Bynkershoek (c). "In the sea, out of the reach of cannon-shot" (says Lord Stowell), "universal use is presumed." This is the limit

(a) Günther, t. ii. s. xxviii. p. 48: "Eigenthum und Herrschaft des Meeres an den Küsten."

Heffters, 1. Buch, s. lxxvi. p. 141: "Schutzrechte über die Küstengewässer."

Ortolan, Dipl. de la Mer, t. i. 1. ii. c. viii.: "Mer territoriale."

Kent's Commentaries, vol. i. s. xxvi. p. 25.

(b) Valin, Ordonnance de la Marine, 1. v. tit. i. p. 687: "De la Liberté de la Pêche," contains a full dissertation on this subject.

Klüber, s. 130, n. a.

(c) Quæstiones Juris Publici, cap. viii.

fixed to absolute property and jurisdiction; but the rights of independence (d) and self-preservation in times of peace have been judicially considered to justify a nation in preventing her revenue laws from being evaded by foreigners beyond this exact limit; and both Great Britain and the United States of North America have provided by their municipal law against frauds being practised on their revenues, by prohibiting foreign goods to be transhipped within the distance of four leagues of the coast, and have exercised a jurisdiction for this purpose in time of peace. These were called the Hovering Acts (e).

(d) The Louis, 2 Dodson Adm. Rep. p. 245.

The Twee Gebroeders, 3 C. Rob. Adm. Rep. p. 339.
Jacobsen, Seerecht, pp. 586-590.

"Si quelque vaisseau de l'une ou de l'autre partie est en engagement avec un vaisseau appartenant à quelqu'une des puissances chrétiennes, à la portée du canon des châteaux de l'autre, le vaisseau qui se trouvera ainsi en action sera défendu et protégé autant que possible, jusqu'à ce qu'il soit en sûreté."-Etats-Unis et Maroc (1787), Art. 10.-De Martens et de Cussy, Rec. de Traités, etc. vol. i. p. 380.

"En conséquence de ces principes, les hautes parties contractantes s'engagent réciproquement, en cas que l'une d'entre elles fût en guerre contre quelque puissance que ce soit, de n'attaquer jamais les vaisseaux de ses ennemis que hors de la portée du canon des côtés de son allié."— France et Russie, Art. 27, ibid. p. 395. (This treaty was only entered into for twelve years.)

"Aucune des deux parties ne souffrira que le vaisseau ou effets appartenant aux sujets ou citoyens de l'autre, soient pris à une portée de canon de la côte, ni dans aucune des baies, rivières, ou ports de leurs territoires, par des vaisseaux de guerre ou autres, ayant lettres de marque de prince, république ou Etat, quels qu'ils puissent être. Mais dans le cas où cela arriverait, la partie dont les droits territoriaux auraient été ainsi violés, fera tous les efforts dont elle est capable pour obtenir de l'offenseur pleine et entière satisfaction pour le vaisseau ou les vaisseaux ainsi pris, soit que ce soient des vaisseaux de guerre ou des navires marchands."-EtatsUnis d'Amérique et Grande-Bretagne, Art. 25.—De Martens et de Cussy, Rec. de Traités, vol. ii. p. 92.

The

(e) 9 Geo. III. c. 35, prohibited foreign goods from being transhipped within four leagues of the coast without payment of duties. American Act of Congress, 1799, March 2, ss. 25, 26, 27, 99, contains the same prohibition, and their Supreme Court has declared this regulation to be founded upon International Law.-Church v. Hubbards, 2 Cranch Reports, p. 187.-The Louis, 2 Dodson Adm. Rep. 245-6. This

Nevertheless, it cannot be maintained as a sound proposition of International Law that a seizure for purposes of enforcing municipal law can be lawfully made beyond the limits of the territorial waters, though in these hovering cases judgments have been given in favour of seizures made within a limit fixed by municipal law, but exceeding that which has been agreed upon by International Law. Such a judgment, however, could not have been sustained if the Foreign State whose subject's property had been seized had thought proper to interfere. Unless, indeed, perhaps, in a particular case, where a State had put in force, or at least enacted, a municipal law of its own, like that of the Foreign State under which its subject's property had been seized. It is at least quite intelligible why such a State would not interfere on behalf of its subject. My observation does not deny to the neutral, in time of war, the right to complain of and possibly to prevent the hovering of belligerent ships so near her coasts and ports as manifestly to menace and alarm vessels homeward or outward bound. This is a question which will receive further consideration when the relations of States in time of war come under discussion. The limit of territorial waters has been fixed at a marine league, because that was supposed to be the utmost distance to which a cannon-shot from the shore could reach. The great improvements recently effected in artillery seem to make it desirable that this distance should be increased, but it must be so by the general consent of nations, or by specific treaty with particular States (f).

CXCVIIIA. In the year 1860 an English ship ran down

case will not be found on examination to support the lawfulness of a seizure beyond the marine league, though often cited for this purpose.Waite's American State Papers, 1–75.

Vide post, s. cc. as to the King's Chambers. The present English law on the subject is contained in the Customs Consolidation Act, 1876, 39 and 40 Vict. c. 36, ss. 53, 134, 138, 147, 179, 181, 182, 189, 229.

(f) Hudson v. Guestier, 4 Cranch, 293, and 6 Cranch, 281. Not easily reconcilable with Rose v. Himely, 4 Cranch, 241. Dana's Wheaton, p. 180, n. 108.

a foreign ship within three miles of the English coast; the owners of the foreign ship brought a suit, and obtained judgment against the English vessel, the owners of which then filed their bill to obtain the benefit of the limitation of liability prescribed by the Merchant Shipping Act, 1854. It was decided by Vice-Chancellor Page Wood, after a very able and learned argument, that these provisions applied (g).

CXCVIIIB. In the recent case (1876 A.D.) of Regina v. Keyn (h), the prisoner was a foreigner in command of a foreign ship on a voyage from one foreign port to another. Whilst passing within three miles of the English coast his ship ran into a British ship and sank her. A passenger on board the British ship was drowned, and the prisoner, having been indicted at the Central Criminal Court, was found guilty of manslaughter. The question whether that court had jurisdiction was reserved for the Court for Crown Cases Reserved. After the case had been twice argued, it was holden by a majority of one (i), that the Central Criminal Court had no jurisdiction to try the prisoner for the offence charged. The whole of the majority rested their decision on the ground that prior to 28 Hen. VIII. c. 15, the Admiral had no jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the English coast; that that statute and the subsequent ones only transferred to the common law courts and the Central Criminal Court the jurisdiction

(g) The General Iron Screw Collier Co. v. Schurmans, 1 Johnson and Hemming Rep. p. 180. These sections have been superseded by other provisions in the Merchant Shipping Act Amendment Act, 1862. (h) Law Reports, 2 Ex. Div. p. 63.

(i) The majority consisted of Cockburn, C.J., Kelly, C.B., Bramwell, J.A., Lush and Field, JJ., Sir R. Phillimore and Pollock, B.; the dissentients were Lord Coleridge, C.J., Brett and Amphlett, JJ.A., Grove, Denman, and Lindley, JJ. Archibald, J., agreed with the majority, but died before the judgment was delivered.

See, for a comment upon this judgment, p. 21 of the Argument of Mr. R. H. Dana on behalf of the United States before the Halifax Fishery Commissioners (infra, p. 287). In this argument the reasoning of the majority is approved and adopted.