eral times sanctioned this right. We may cite, among others, an important decree of the Court of Cassation rendered on May 17, 1839, apropos of the murder of a Frenchman at Cayor. This decree not only recognized the competency of French tribunals over certain crimes, but it proclaimed that under the terms of a royal ordinance of 1834 French councils of war are empowered to judge even the crimes and offenses committed by the natives of Senegal among themselves outside the limits of the colony.

We have already called attention to the special character of war ships and the immunities which this character confers. We shall observe here, with Mr. Dana, the commentator of Wheaton, that immunities enjoyed by men-of-war depend rather on their public than on their military character. They are granted not to the man-of-war, but to the national vessel invested as such with a certain sovereign character.

From this point of view the commander of a war vessel may be compared to a diplomatic agent accredited to a foreign court, the staff and crew under his orders, to that of the official and unofficial personnel of a mission, and finally the ship itself to the embassy or legation.

From this resemblance, which universal custom recognizes in fact, there results first the fact that all naval vessels and their crews are governed by the fiction of extraterritoriality and are entitled to all the prerogatives and immunities thereto attached.

The second inference to be drawn is that no authority other than the Government to which it belongs has a right to concern itself with what happens on board the war ship.

§ 473. This last point is not difficult to understand nor can it give rise to any valid objection so long as the ship is at sea, for the reason given above, namely, that the high seas are not under the control of

anyone.

§ 474.—But as soon as the ship arrives within the jurisdictional waters of a foreign State, such as harbors, roadsteads, coastwise and territorial waters, it is in the presence of two sovereignties, two distinct powers, and it may be a question whether, during its sojourn, it shall be under the jurisdiction of the waters in which it is anchored, or under that of its own country. The reasons which everywhere subject the merchant ship to territorial jurisdiction can not be applied to the man-of-war, which, as we have explained, has an essentially different character, organization, and use; so that wherever it may be, it is governed by the sovereignty laws of the Government to which it belongs; the State in whose waters it accidentally finds itself has with it only international relations delegated to competent authorities under conditions indispensable to the maintenance of internal rights of each State.

§ 475.-The immunity derived from extraterritoriality extends to rowboats, cutters, launches, and other accessories or appurtenances of a war vessel. But it does not extend to the merchandise nor to ships seized in violation of the neutrality of the country to which the prizes may be brought. Such is the theory underlying the decree of the Supreme Court of the United States in the case of the Spanish ship La Santissima Trinidad, the cargo of which had been seized on the high seas by ships commissioned by the United Provinces of the Rio de la Plata during the war of independence, but armed in United States ports.

The court recognizing that the United States was at peace with Spain and that the seizure had been made by ships armed and equipped for war in a port of the Union, decided, first, that the armament of the captor, owing to the conditions under which it was procured, constituted an attempt against the neutrality of the United States; secondly, that it followed from this that it would be an aggravation of this violation of the law of nations to permit ships of this character to commit hostile acts against other nations with the armament which they had procured in ports where they had sought asylum; and thirdly, that as no jurisdictional immunity could cover such acts, a strict obligation existed for the return of the merchandise claimed by the Spanish owners as having been unjustly seized.

§ 476. From the principle which, under the circumstances, exempts warships from the control of the authorities as well as from the civil and criminal jurisdiction of the courts of the foreign country in which they are at anchor, there results the fact that tc go on board by force is an insult to the flag and may cause grave complications and may justify the rupture of relations between two

states.

$ 477.-Above the jurisdictional immunity of which we have just spoken, may be placed the rights of preservation and sovereign independence. Every Government is therefore authorized either to prohibit foreign men-of-war access to her ports, if it have serious reasons for not following, so far as they are concerned, the ordinary rules of the law of nations, or to take measures for supervision and safety, if it thinks their presence dangerous; it would not even exceed its right, should occasion arise, in ordering these ships to leave the port of the territorial waters, which, according to circumstances, may lose their defensive character and assume the offensive, this constituting a legitimate cause for war.

§ 383, page 517.-The supervision and control of the customs inside the territorial waters, or along the maritime boundary, are everywhere governed by nearly the same principles, namely, river police, visits and detention of ships or boats suspected of smuggling,

seizure of prohibited articles and punishment, such as fine or imprisonment, for violation of the customs laws of the country. England has on this subject a very precise law, that of August 28, 1833, by the terms of which any foreign merchant ship found one league from the shore, and which, weather permitting, does not continue towards its port of destination, is summoned to leave within a period of 48 hours, and in case of disobedience, becomes liable to confiscation if contraband merchandise is found aboard.

"It is not contrary to the law of nations or to that of nature," says Grotius, "that those who assume the charge of duty of ensuring and aiding navigation, either by building and maintaining light houses, or by placing buoys to mark reefs or shallow water, should impose a reasonable tax on ships which navigate those waters."

Martens and Azuni see in this a right belonging to maritime powers, duties so imposed on ships sailing within the limits of their maritime jurisdiction being destined to defray the expenses necessary to the safety and convenience of navigation.

Any ship which anchors within the jurisdictional waters of a state should submit to the jurisdiction of that state so far as regards all reasonable taxes imposed for the maintenance of the general safety of the navigation along its coasts. But if the ship only passes along the coasts without anchoring at the distance of a marine league from shore, or without entering a harbor or roadstead, it is not subjected to the payment of territorial dues.

$384, page 518.-In reality, it must be recognized that all the questions which we have discussed above are directly attached to or necessarily end in one and the same fundamental principle, that of the freedom of the seas. If we consider the waters which encompass the globe as the common patrimony of nations, and if we take into account the historic development of nations as well as the progress of civilization, we arrive naturally and by degrees at what we have characterized as external public law of modern times. If, on the contrary, we reject the absolute principle of the freedom of the seas, with the aid of reasons more specious than just, we arrive at practical conclusions which can not be admitted by reason and equity, we perpetuate the causes of war, and stir up profound and dangerous strife in the maritime relations of states. From all these points of view the importance of the question of the free navigation of the seas and the special attention which it has received from political writers may be understood.

However this may be, maritime navigation and commerce have created relations of mutual obligation and duties of a special character between nations, and from these have arisen, according to circumstances, places, and special needs, either unanimous consent, or isolated customs and usages, or regulations, or separate treaties.

92977-19 -3

CARNAZZA-AMARI: Traité de Droit International Public en Temps de Paix. Paris, 1880, 1882.

[Translated into French from the Italian, by Montanari-Revest.]

Volume 2, page 41.-Rights of property and sovereignty over the sea have never been recognized. Selden among the older authors and Ondes-Reggio among the more recent were wrong in seeking to prove the contrary by giving an extensive interpretation to certain expressions contained in historic monuments of ancient peoples, such as that in the Rhodian law in which the Roman people declared themselves dominus mundi, and consequently master of the lands and seas which compose the earth. The Romans included within this domain only the objects making part of it, and not the elements the nature of which ex luded them. Likewise no value is to be attached to arguments drawn from pompous titles which nations formerly assumed, in declaring themselves mistress or queen of the sea, etc. This pretended domination rested upon their maritime predominance and upon the power of their fleets rather than upon any right to property in the ocean. To-day we admit as an established fact that ancient peoples never claimed such a right.

Nevertheless in the fifteenth century, when Vasco da Gama, seeking a new route to the Indies, navigated around the Cape of Good Hope, and Christopher Columbus discovered America, a complete change in navigation resulted which led certain States to claim a Sovereignty over certain seas. In fact, in the sixteenth century and at the beginning of the seventeenth, Portugal sought to forbid the free navigation of the Guinea Sea up to the East Indies and, based on the priority of discovery and pontifical grants, claimed a right of Sovereignty over these waters. The English, under Charles I, Cromwell, and Charles II, made similar claims over the seas which surrounded their territory. Without assigning precise limits, they maintained that their seas extended to the territorial waters of other States, and that the seas embraced between the coasts of Great Britain and those of the United States of America, which they called British seas, were subject to their exclusive sovereignty. The Spaniards declared themselves sovereigns of the Pacific Ocean, and the Dutch, forgetting that they had formerly been defenders of the liberty of the seas, also claimed their sovereignty and attempted to prevent Spanish vessels from proceeding to the Philippine Islands via the Cape of Good Hope. The Genoese claimed sovereignty over the Ligurian Sea, and the Venetians over the Adriatic, basing themselves upon the ceremony of Bucentaure, during which every year the Doge advancing into the sea threw out a ring and married the sea while pronouncing a certain Latin formula.

The writers who maintained a right of sovereignty over the great seas were Gentilis, Pacius (Julius), Gotofredus, Paolo Sarpi, Burgus, Rivius, Marisoltus, Schookius, Coringius, Jenkinson (Lord Liverpool), Selden, de Frétas, Heineccius, Borough; the defenders of the liberty of the seas were Grotius, Pufendorf, Graswinkell, Hubérus, Graverus, Groeningius, Pontanus, Bynkershoek, Lucchesi-Palli, Hübner, Azuni, Galliani, Hautefeuille, Klüber, Martens, Wheaton, and all recent writers on international law. We may say therefore that the question to-day is settled in favor of the liberty of the great seas. States have in fact long ago abandoned all claims of this kind and have recognized the principle admitted by science and common utility.

Page 52-We must likewise reject the opinion of Montesquieu, Vattel, Klüber, and other publicists who believe that States have the faculty of renouncing by a treaty the use of the sea. The use of the sea is necessary to the development and at least moral existence of States, and for that reason alone it is inalienable. It would be in vain to argue that prolonged non-use would lead to a loss of the right which a State possesses over the sea, for as an abstraction from the reasons given it suffices to remark that navigation and fishing constitute optional rights of peoples which they may exercise at their pleasure, and which are consequently imprescriptible.

Azuni makes a hypothesis which strikes us with little favor. He admits the validity of the renunciation by a State to the use of the sea in cases in which all nations consent to it. However, all the people united have not the power of transforming right into injustice, of placing in commerce things which are not commercial, and much less of subjecting to the sovereignty of a State or to conventions an element which nature has liberated from bonds of all kinds. Finally, we may observe that whatever the sense in which it is admitted, the renunciation of the use of the sea would, in last analysis, lead to a denial of the principle of the liberty of the seas. In fact, States could one after the other renounce this use, and consequently permit its domination to pass into the hands of some or even one of them. This rule would involve a free grant of sovereignty over all the ocean which is neither physically nor legally possible, ard a convention to this effect would be void.

§ 11. page 53.-The principle of liberty, while incontestible in the case of the open sea, is not applicable to seas which without being indispensable to the free communication of States are nevertheless necessary to the peoples inhabiting the shores from the point. of view of defense and fishing. This is the case with (1) adjacent seas over the distance which may be covered by a projectile launched frem shore. (2) straits. (3) interior closed seas, (4) ports and roadsteads.