usage, but hardly as a well-established right except when used as a transit over a necessary highway to other waters and countries."1

The right of hot pursuit beyond the marine-league limit, has been exercised by Great Britain, France, and the United States and has been accepted without opposition except with the limitations shown in the Itaia case, below given.

In 1891, during the civil war in Chile, the leaders of the congressional party, which had not then been accorded belligerent rights, sent to the United States the armed transport Itata, for the purpose of carrying to Chile a cargo of arms and munitions of war for the insurgents. The Itata was subsequently seized at San Diego, Cal., on a charge of violation of the neutrality laws. While in charge of a care keeper of the United States marshal, the Itata, against his will and protest, left the port. The marshal's keeper was put on shore, and the Itata then proceeded to San Clemente Island near by, still within the jurisdiction of the United States; here she received a cargo of arms and ammunition which had been sent from San Francisco and then proceeded to Iquique, Chile, under the convoy of the Chilian cruiser Esmeralda, then in the service of the insurgents. Orders had been given in the meantime to the U. S. S. Charleston, and the U. S. S. Omaha to go in search of the Itata, and if she were found at sea to seize her and bring her into port. If she was found under convoy of a Chilian war vessel, the circumstances of the escape were to be explained and a demand made for her restoration to the possession of the United States; if this demand was refused, it was to be enforced, if practicable. The Itata arrived, however, at Iquique, Chile, without being intercepted; but before her arrival there the insurgent Chilian authorities expressed disapproval of what had been done and promised to restore her to the possession of the United States, together with the cargo of arms, etc., taken on board at San Diego. When they found

1 Stockton, "Manual," pp. 91, etc.

that the arms, etc., had been taken on board at San Clemente Island instead of San Diego, the insurgent authorities desired to retain them, but Rear-Admiral McCann, the senior United States naval officer at Iquique, declined to accede to this request, as the arms were taken on board within the jurisdiction of the United States, and consequently the vessel, though no demand for her surrender had been made, was given up to the naval authorities, together with her cargo, and taken back to San Diego to abide the judgment of the court.1

This case was brought, finally, before the mixed commission constituted to settle United States and Chilian claims, which declared, after examination of many authorities, that the United States committed an act for which it was liable for damages, and for which it should be held to answer. The Itata not only was pursued for a very considerable distance and space of time on the high seas but was pursued while following the ordinary track of vessels bound to a Chilian port, and was taken possession of while in the territorial waters of Chile.

As to straits and sounds which are mentioned in the description of the maritime territory of a state, it may be said that the marine league of three miles remains as the defining element of territorial distance. If a strait is six miles or less in width and is bordered on both sides by the territory of one state only, it belongs to the territory of that state. Thus the Solent, which divides the Isle of Wight from England, is British, and the Dardanelles and the Bosphorus are Turkish. On the other hand, if a narrow strait is bordered by two different states, it is divided between the two states, the boundary line normally passing midway between the countries through the mid-channel. Of course, this can be modified by special treaty. The status of the Strait of Juan de Fuca has already been referred to, and the Lymoon Pass between the British territory of Hong Kong and the mainland of China was half British and 1 Stockton, "Naval Manual," pp. 95, 96.

half Chinese so long as the territory opposite Hong Kong was Chinese.

70. Straits. "The claims of states over wider straits," says Oppenheim, "than those which can be commanded by guns from coast batteries are no longer upheld. Great Britain," he says, "used formerly to claim the narrow seas-namely, the St. George's Channel, the Bristol Channel, the Irish Sea, and the North Channel-as territorial," and Phillimore asserts that "the exclusive right of Great Britain over these narrow seas is uncontested." "But," Oppenheim goes on to say, "it must be emphasized that this subject is contested, and I believe that Great Britain would now no longer uphold her former claim; at least the Territorial Waters Jurisdiction Act, 1878, does not mention it." Certainly such rights are not claimed or conceded by any other writers than some English ones who claim various maritime areas under the name of the King's Chambers. Of this Westlake, one of the best of English authorities, says: "But it is only in the case of a true gulf that the possibility of occupation can be so real as to furnish a valid ground for the assumption of sovereignty, and even in that case the geographical features which may warrant the assumption are too incapable of exact definition to allow of the claim being brought to any other test than that of accepted usage."2

When a territorial strait connects two parts of the high seas or open waters foreign merchantmen cannot be excluded from a free passage, and it is the policy of the United States to insist upon the same privilege for men-of-war. If the strait connects two tracts of open sea as the Gut of Canso, between Cape Breton Island and the mainland of Nova Scotia, or the Straits of Magellan, "the lawful ulterior destination," says Westlake, "is clear, and there is a right of transit both for ships of war and for merchantmen. If the strait leads through a single country into an inland sea lying entirely within the same country, as was formerly the case of the Bosphorus, leading 1 Oppenheim, vol. I, p. 266.

2 Westlake, "Int. Law," I, p. 188.

through Turkish territory land on both sides into the Black Sea, entirely surrounded by Turkish land until Russia gained a footing on its coast by the treaty of Kainardji, in 1774, nothing is presented but an extreme instance of a bay the entrance to which is less than twice the width of the littoral sea. The rule that the inner part of such a bay, no matter how widely extended, belongs to the country in which it lies must be applied. It will be within the right of that country to exclude foreign navigation from its internal waters, and, consequently, from the strait which leads to them; and, in fact, at the time mentioned, the Black Sea was a closed sea of the Turkish Empire, and navigation through the Bosphorus was forbidden to foreign ships of war and merchantmen equally."1

By various treaties since 1774 Turkey has agreed to the free navigation of the Dardanelles by merchant vessels. By treaty with the principal European powers, in 1841, Turkey declared the maintenance of its old doctrine by which the entrance of foreign men-of-war into the Dardanelles and the Bosphorus was prohibited. This was agreed to by the participating powers, as was also the declaration of the Sultan that he reserves to himself the right to deliver firmans of passage for small vessels of war to be employed as stationary vessels for the various missions of foreign powers at Constantinople. He has also, as a matter of fact, given firmans of passage to vessels carrying crowned heads, and in one case to the flag-ship with Admiral Farragut on board.

By the treaty of London of 1871 the right of exclusion of men-of-war from the Dardanelles and the Bosphorus was again upheld, and at the same time the right of free navigation for merchantmen of all nations was confirmed. The United States was not a participating power in this case, but, without agreeing to the validity of the arrangement, it is respected by it. An additional power was given to the Sultan by the same treaty of London to open the strait in time of peace to vessels of war 1 Westlake, "Int. Law," I, p. 197.

of friendly and allied powers, in case he should consider it necessary in order to secure the execution of the treaty of Paris of 1856 which closed the Crimean War.

In the meantime the conditions formerly existing in the Black Sea have changed. Instead of being enclosed within the territory of one power-Turkey-its shore-line is also owned by Russia, Rumania, and Bulgaria, and as a result the Black Sea can be considered as an open sea and a part of the Mediterranean. It is no longer neutralized, and men-of-war are no longer excluded from its limits.

Finally, it cannot be said that the straits leading to the Black Sea from the Mediterranean are closed to men-of-war, as a matter of legal principle, but specifically by the free determination of the European powers to continue to that extent the ancient state of things, as an engagement with the Sultan, and not as an international obligation,1 in which the United States acquiesces.

Upon the general question of straits the following resolutions, adopted by the Institut de Droit International at its sessions in 1894, are worth quoting. They are

"1. That straits whose shores belong to different states form part of the territorial waters of the bordering states which exercise sovereignty to the middle limit.

"2. That straits whose shores belong to one state form, so far as concerns approach to the coast, part of the territorial waters of such state, although they may be indispensable so far as a means of maritime communication between two or more states.

"3. That straits that serve as a passage from one free sea to another can never be closed. From the operation of these rules, straits actually subject to conventions or special usages were expressly reserved."

Through the persistent efforts of the United States, in which matter Mr. Henry Wheaton, then our minister to Denmark,

1 Westlake, "Int. Law," I, pp. 194-6.