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 maintained.

In another case that of the Maria1-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 part of the seas adjoining to their coasts.

He would now refer their Lordship 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 3 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 3 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 3 miles.

A case occurred when the Duke of Wellington held the office now held by his noble friend (Earl Granville). In 1829, within 3 miles of one of the Cinque Ports, some fishermen at sea were fortunate enough to discover a whale valued at 370 7. A claim to the fish was made by 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 3 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

1I Rob. Adm. R. 352.

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 3 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 "Gammell 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 3 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 honor to hold, said:

The 3-mile limit depends upon a rule of International Law, by which every independent State is considered to have territorial property and jurisidiction 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 LegislaThen comes the question, how far our Legislature could properly affect the rights of foreign ships within the limits of 3 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 3 miles from its shores.

In the case of the "Free Fisheries of Whitstable v. Gann."1 Sir William Erle said:

The soil of the seashore to the extent of 3 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 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 Lordships 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 3-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 offense 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 of fense 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.

Lord Selborne said that as far as the case connected with the Franconia proceeded on a technical ground for the trial of a criminal offense on the high seas, within the territorial waters of this country, he did not profess to entertain an opinion which would entitle him to criticize the judgment of the majority of the judges; but he must say that on reading that judgment some doubt was entertained

111 C. B. (N. S.), 413.

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 3-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 offenses committed within that limit, and much prudence was shown in not seeking to extend by this measure our jurisdiction for this purpose beyond the 3-mile limit. It had been argued that, in consequence of the increase in the range of artillery, that limit should be extended to 5 or even 6 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.

On the motion for the second reading of this Bill,

The Lord Chancellor wished to correct a misapprehension which appeared to have prevailed out of doors in reference to his statement on introducing the Bill. It appeared to be supposed that he had stated to their Lordships that the judges who decided the Franconia case had overlooked an Act of Parliament, and that if the Act had not been overlooked there might have been a different decision. What he had stated was this. He had read to their Lordships a passage from the judgment of Mr. Justice Lush, in which the position was laid down that if Parliament had legislated in reference to the waters where the collision had occurred it would have conferred jurisdiction on the Court. In reference to that statement he (the Lord Chancellor) pointed out that under the Regulation of Customs Act of 1848 the Commissioners of the Treasury made an order declaring the limits of the port of Dover to extend 3 miles out to sea, and that the collision had occurred within that limit. But that order could not possibly be known to the learned judges unless it had been specially brought under their notice. It was not known to himself until a gentleman connected with one of the public offices had called his attention to the subject. He did not wish it to be supposed that he had said that the learned judges had overlooked anything which should have properly come under their notice.

HAUTEFEUILLE: Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime. Third edition. Paris, 1868.

Volume 1, title 1, chapter 3, page 50.—The principle of the liberty of the seas bears two exceptions important to note. They are derived from the very nature of certain parts of the sea and disclose reasons

which serve as the basis for the liberty of the ocean. The primitive law can neither be altered nor destroyed by human laws; but we must recognize that the exceptions of which I shall speak result positively from primitive law and not from human or secondary law. The treaties concluded between States have undoubtedly commentated the first provisions of natural law; but far from destroying them, they have made them clearer and more useful.

The principal reasons on account of which the sea can not be subject to the property of man are: First, the impossibility of retaining it under his control and consequently excluding others from it; second, its immensity and its inexhaustible character, which remove every interest in its exclusive possession. The parts of the ocean which do not share these qualities which, on the contrary, by their nature, are susceptible of being dominated by human force, the possessor of which may exclude other men and has a powerful interest in maintaining this exclusion, finally those parts whose common use could not be conserved without harming the most interested nation and whose nature is such that it is not inexhaustible-these portions of sea may not be subjected to the right of property. This is the case with territorial seas and closed seas.

Territorial seas.-Those parts of the sea which wash the coast which immediately adjoin them and serve them as frontiers are called by publicists territorial seas. According to the principles of primitive law the ocean is free. This is not the case with territorial seas; they are, on the contrary, subjected to the sovereignty of the nation, mistress of the coast washed by them. They are under its domination in like manner as the land. This is not a derogation from the immutable rules of primitive law. It is merely an exception to the general principle derived from that law itself, which rests upon the nature of the territorial sea, on the absence of the condition which placed the ocean beyond human possession.

The high sea, as we have established, can not be put into the actual possession of a people. The territorial seas, on the contrary, may be subjected to the power of the nation that is proprietor of the neighboring lands. This nation has the power of excluding others from it, and its interest requires that it use this power, because the liberty of navigation would considerably restrict its enjoyment and compromise its security. These three points established, it is evident that according to primitive law the territorial sea is susceptible of being subjected to the sovereign domain-it is the property of the adjacent State.

This bordering State has not only the power over this portion of the sea, but also a powerful interest in removing others from these shores, in limiting and regulating navigation; that is, in excluding them from its free use because this liberty interferes with its own