as early as in the reign of Francis I. It is only in the eighteenth century that it appears on the sea, where for the first time it is seen in the Carlier lease of August 19, 1726 (article 395). Continued by the lease of Forceville of September 16, 1738 (article 391), it definitively entered into French customs legislation (loi of 4 Germinal, Year 2, Article 7). It is the more legitimate to consider this right on the free domain of the sea as a right of servitude, because such is precisely the character it presents on shore, where all writers admit that it exists as a right of way in servitude for the benefit of the customs. Just as the needs of the customs service impose a restriction on ownership by private persons along the frontier so they require a restriction on the free use of the sea by the community of States. But what extent shall be given this servitude? The question is a very delicate one. What is exactly the region where the customs shall control to prevent clandestine unloading? This is the question which must be answered when the rule by cannon is rejected with the sovereignty of the littoral State. But, if this question is at first embarrassing it is easy to settle it by a comparison of the land zone, where the customs fear fraud, with the maritime zone to be determined. The land zone, being interior, is fixed in all sincerity, without other thought than the wish to prevent contraband trade. It is therefore its extent which fairly should serve to fix the zone seaward. Now, this zone is for France two mayriameters on the land side. As it ought to be the same on the ocean side, it is at 20 kilometers that it is fixed, while the zone of neutrality in our system stops at 3 miles; and we adopt this solution with the more satisfaction because the 4 marine leagues of the Hovering Acts1 end likewise at 20 kilometers (exactly 22). But for the very reason that this distance is based on customs necessities, independently of the power of cannon, it is from low-water mark that its extent will be measured because the 4 marine leagues of the Hovering Acts end likewise at 20 can already be made (in this sense Cass. civ. of France, 9 messidor, year 7), although no battery can be located there to stay. By accepting this system our customs jurisprudence rejects the system of sovereignty to unite itself with that of servitude.

Finally, for sanitary policing, at what limit is it going to stop? With sovereignty for principle and cannon for measure, infected

1 Béquet, supra cit., p. 211, note 1.

* Béquet, supra cit., p. 392.

Valin, Commentaire de l'Ordonnance de 1681, II, tit. vii, art. 2; Plocque, De la mer et de la navigation maritime, No. 154; Isambert, Des marchepiedes le long des bords de la mer, sect. ii, c. ii, liv. i, sec. 8; Gaudry, De domaine, vol. i, No. 91.

Lawrence, Principles of International Law, p. 176.

An order of the Austrian minister of finance of March 23, 1881, cited by Schücking, fixed the customs belt at 4 marine miles. See Schücking, Das Küstenmeer, p. 12.

Béquet, supra cit., p. 208.

ships could be kept on the high sea without coming nearer than the range of cannon, a monstrous system, since it would keep the ship on the open sea, exposed to every violence of the ocean, without allowing it to seek shelter under a coast. Measured by the necessity of the State, the simple servitude of sanitary protection is only carried to a small distance from the coast, because contamination is not to be feared except in case of disembarkment, and this a narrow interval of water suffices to prevent.

Such are the moderate consequences, strictly and solely calculated on the necessities of coastal security, to which, by deduction after deduction, covering the various interests in question, we are finally brought by the theory which we have outlined. Far from not fitting in with this theory, these consequences verify it and strengthen it. Almost all are already in use; those which are not yet fully accepted are tending to become so. What obstructs their acceptance is that old conception of the territorial sea as a distinct entity, under the sovereignty of the littoral State. Too long the science of the rights of the littoral State has been prisoner to it. Hampered by an incorrect rule which embarrasses it in its movements, domestic and international practice tend now to break the bonds by which error confines it. That which has contributed to the power of this rule is its highly doctrinal character. In a law somewhat free, with few texts, and with broad ideas as in the law of nations, theoretical views have tried to play too great a part. Thus has been created in defiance of the needs of practice, against right and against nature, this idea that the littoral State is sovereign of the territorial sea, as if it existed a territorial sea in the physical régime of seas, as if it were possible to exercise empire over it in the juridical régime of sovereignty. But, opposed to this system, its consequences protest. In denying that the territorial sea is a distinct sea, and in recognizing not sovereignty but simply coastal servitudes for the littoral State, we have unfortunately no authorities to invoke. This system has support neither in tradition nor in doctrine, but it finds it in its practical effects. It is under their patronage that it places itself, for it is upon observation of them that it is framed.

LATOUR: La Mer Territoriale au Point de Vue Théorique et Pratique. Paris, 1889.

CHAPTER I.

Section I, page 7. The notion of the territorial sea.-The earth is partitioned among numerous States, divided from one another

by either natural or artificial frontiers. The former are supplied by the shores of the sea, the summits of mountains following the dividing line, etc.; the latter consist of conventional lines; thus the rights of the coast States over the adjoining sea extend beyond the shore to a certain distance which it is claimed must be the range of cannon; this portion of sea is styled territorial and by fiction is considered to be the continuation of continental territory.

2

This fiction is justified on various grounds, which M. Perels sums up as follows:

First. The security of the coast State demands the exclusive possession of the marginal sea.

Second. The supervision of the vessels which enter, depart, and sojourn is required to insure good policing and the development of the political, commercial, and financial interests of the coast State. Third. The control of territorial waters is of use in affording means of existence to the population that lives along the coast.

Section II, page 8.-Three principal reasons, therefore, justify the sovereignty of the coastal State. The enumeration of these reasons is all the more important and worthy of mention at the beginning of the essay, as they contain the fundamental principles which will serve to determine the nature of the rights of the state to the territorial waters and the expanse it is proper to assign to it.

The treaties have necessarily provided for and regulated the possession of territorial waters so indispensable to the development of international commerce and the trade of maritime States. This exception to the principle of the freedom of the seas is after all but a confirmation of it, and it is not a question here of exercising an actual property right of dominium, as alleged by Schiatarella in his Del Territorio, but an imperium which permits of taking steps for the protection of the coasts, navigation, and commerce.

It is possible that the name of Territorial sea may have caused unfortunate consequences in this respect; in fact, the word itself implies that the territorial waters are in some way an extension of the continental territory and must be assimilated to it. Hence, certain authors concede to the coast State the right of ownership or absolute sovereignty over that portion of the sea, and for them the expression of territorial sea is not lacking in accuracy.

The territorial sea is that which washes the shores of a State and serves, so to speak, as a boundary line. That is the area of the open

1Of late there has been a mention of special frontiers styled Social Frontiers. It is said that economical and social conditions of countries must be taken into account in the demarkation of boundaries (V. Inama Sternegg, Tübinger Zeitschrift für die ges. Staatswissenschaft, vol. xxv, fasc. 3 and 4.)

2 Küstenmeer or Territorialmeer in Germany, and Territorial Waters in England.

1 See Code général de la Prusse, vol. ii, 15, 80, and a decree of the Supreme Court of Prussia dated November, 1866.

P. 5.

sea over which the State can, from its coast, command respect of its power.

Certain authors give the special name of littoral seas to those parts of the sea which wash the shores of a State, and to gulfs, roadsteads, bays, and in general the bodies of water surrounded by the possession of the State, territorial seas. But this distinction is not admitted by all authorities and it is essential to recognize that littoral seas are territorial seas in that they form part of the territory.

Therefore, neither of the names, littoral seas or adjacent seas must be used, as the authorities and treaties themselves have sanctioned the term territorial sea, which, from a certain point of view, defines more closely the rights of a coast State. "That portion of the sea over which the State can, from its coast, command respect of its power, that is to say, that strip of the sea extending as far as the range of cannon from the shore is included in its territory," says Bluntschli.1

This assimilation is not contrary to law, and it is not a question here of the waters of the high seas whose use is inexhaustible. The coast fisheries should not be left to the discretion of the various nations; navigation and national commerce should also be safeguarded; and as very well put by Hautefeuille."

To admit the freedom of the territorial seas would be to destroy the present basis of international commerce and deprive most of the maritime States of immense advantages to be derived from their trade.

Every State must be permitted to secure its conservation and independence; therefore, things which could by unrestricted use prove injurious or dangerous, may be appropriated.3

Section III, page 11.-The State, therefore, has a certain right to the adjacent sea, and the natural sanction of that right takes the shape of the use of vis armata, and is spoken by the voice of cannon. While the nature of this right can be discussed, it must be acknowledged that most of the authorities agree in attributing to the coast State the right to regulate and even reserve its coastwise trade* and the inshore fisheries for its citizens or subjects, to place its navigation and customs under a police system, exercise a certain jurisdictional power, to set up maritime rules and prohibit all acts of hostility in neutral waters.

But certain writers who accept the dominium doctrine go so far as to permit the coast State to prohibit navigation of the territorial

1 Bluntschli, Droit international codifié, Article 302.

2 Hautefeuille. Droits et devoirs des nations neutres, tit. 1, chap. iii, sec. 1.

3 Vattel Le droit des gens, liv. 1, chap. xxiii, par. 288.

The reservation of the coastwise trade for the benefit of the citizens or subjects of the State can hardly be extended beyond the so-called "small" coasting trade that is carried on from port to port in the same sea.

seas, levy tolls, exercise absolute jurisdiction. The leading authorities who have upheld this opinion are Vattel, Wheaton, Hautefeuille, de Rayneval, Massé, Pradier-Fodéré, and Fiore; some of the arguments brought forth are specious, others are of no great weight; for instance, de Rayneval' contends that the bottom of the sea near the coast can be considered as having once formed part of the continent and can, for that reason, be considered as still being part thereof. Geology is an important science which renders great service but seems little apt to supply legal arguments; moreover, we may add, the depth of the marginal sea is very variable and uneven, and that is a very uncertain foundation upon which to base the measure of territorial seas.

Hautefeuille in his work entitled "Droits et devoirs des nations neutres " cites several arguments in support of this theory, the first of which appears unimportant, we might even add, inaccurate:

The territorial sea being considered an accessory, and an accessory having to follow the principal, it must necessarily become the property of the owner of the land.

We can not maintain that the territorial sea is an accessory to the land; but the second argument put forth by this writer is far more conclusive and has been sustained by other authorities:

The territorial sea is subject to occupation and possession, and its use is not inexhaustible.

While it is true, as claimed by M. Pradier-Fodéré, that the sea is useful to the nation that owns the coast, the assertion that its being used by all is absolutely injurious to it is untrue; in fact, while the coast fisheries are to be reserved for the benefit of the coast State, it must be admitted that innocent transit must be granted other States. We will even add that it is not possible truly to take actual and physical possession of the territorial seas.

Certain writers frequently use the words ownership or possession without ascribing to them any definite meaning, and M. PradierFodéré himself says that nations consider "territorial seas as their property and control them by virtue of their sovereignty, as they would control any other part of their territory." The instance of Denmark foregoing for a pecuniary indemnity its right to levy toll in the Baltic is little conclusive; this indemnity represents before all

1 Fiore, after agreeing to the "dominium theory in the earlier editions of his "Traité sur le droit international (Book II, Chapter III, title 1, p. 369), rejects it in his "Nouveau traité," translated by Antoine (1885), No. 302, and restricts the domin ium to the limits which the safety and defense of the territory demand.

* De Rayneval, Institutions du droit de la nature et des gens, Book II, Chap. IX, section 10.

Tit. 1, Chap. III, sec. 1.

Pradier-Fodéré, Droit international public, section 627.