standards of delimitation; and among the most recent treaties are found some which contain very hazy ideas as a result of an effort to avoid the confusion to which we have here called attention. However, the solution does not offer serious difficulties if we stand strictly on this only exact foundation; that is to say, the possibility of exercising on the shore the imperium which ought to extend to the sea, and taking the necessary measures of protection continuously and uninterruptedly.

The other reasons which are alleged to justify this appropriation of the territorial sea are not of such a nature as to give a very satisfactory explanation, but in maintaining our point of view, we naturally arrive at the consequence that the limits of the territorial sea are marked by the extreme line to which one may extend, from the shore line, protection over the water.

The extent of the territorial sea is therefore fixed according to the cannon range of each epoch; but in each epoch it is the same for all seas, for the matter can not depend upon each particular country's establishing batteries upon its coast. When a coast is very extensive there can, in fact, be only a few points which need thus be armed, nor can it be modified according as a State does or does not possess cannons of long range. We need only consider the possibility of placing such cannon on the coast.

In adopting a fixed and invariable distance, the authors have not acted quite arbitrarily. They desire to fix a distance common to all the States, or else indicate merely the limit which, placing a limitation upon excess of pretensions, ought to serve certain definite States in the execution of legislative acts or international treaties. But those among the authors who declare that the territorial sea extends to the range of cannon, or 3 miles from the coast, do not explain themselves on the relation which they establish between these two terms, and they leave one to suppose that, according to an international agreement, express or tacit, which is obligatory upon all, or else according to constant practice, the range of cannon has been fixed at that distance, so far as concerns maritime international law.

German publicists, and the majority of French and Italian, have not fallen into this error. The identification of the distance of 3

1 Bluntschli distinguishes clearly (art. 382) the general limit determined by the range of cannon and the limit of three miles fixed by particular acts; likewise Heffter (sec. 75) whilst Geffcken (note on sec. 75) says, without too much reason:

The range of cannon being greatly perfected it is generally admitted that the public domain extends to three miles."

See also Klüber (sec. 130), Oppenheim (p. 128), Goltdammer (Archires, vol. 3, p. 651, et segt) See for the practice, a decision of the Supreme Court of Prussia November 28, 1866 (ibid.), vol. 16, p. 77-79; Gessner, Droits des neutres (p. 22-23) establishes that the principle posited by Bynkershoek is generally adopted, and says: "This is why the rights of the bordering State have been augmented by the invention of rifled cannon," and he adds, "previously one had as a rule fixed the extent at two miles. To-day, we ordinarily take as a basis a distance of three miles." Among the French we may cite

miles with the range of cannon has only been arrived at after a series of generalizations upon acts and writings which have decided certain special questions. It was not possible to draw from these facts a reason based upon naturalis ratio. As we may see from the declaration made by the government in the discussion of the Territorial Waters Bill in the House of Lords, February 14, 1878, the recent English practice has aligned itself with the system of those who identify the two standards of measurement, and this point of view has been adopted by the English and American publicists.

Other measures proposed to determine the extent of the territorial sea, such as the range of the human voice measured out from the shore, the depth of the water, two days' voyage, etc., do not warrant · being discussed. We can not, however, terminate our observations on this subject without saying that in our day there are still some publicists who extend the limit of the territorial sea at times far beyond the pretensions of the most radical writers of the middle. ages. They align themselves with the doctrine of Vattel; the latter recognizes, it is true, that according to the law of nations of his time, the sea can not be regarded as a continuance of the land except as far as a cannon shot from the shore; but, further, he states the principle that the power of a State generally extends over the bordering waters, as far as its security requires it and its strength permits.

Great Britain arrogates to itself in the interest of customs administration, the right of surveillance exercised by revenue cutters, up to 4 leagues (12 miles). She claims the right of stopping and visiting all ships which steer toward British ports and are found within this limit. In case of contraband or fraud, she reserves the right to seize and impose judgment upon the guilty ship, by the British court. (Hovering Acts.) Kent claims the same rights for the United States; he claims the character of neutrality for the bordering sea up to that distance. Similar pretensions have found their origin in the particular interests of each State and do not take account of the law of nations, in view of which, no State may, in time of peace, exercise the right to arrest foreign ships beyond the Formal limit; that is, beyond the cannon range. One can not hope, reasonably, to have these claims recognized by third States.

Every State whose flag has been the object of such an order of arrest can protest and, according to the circumstances of the case, claim an indemnity for the injury. By the terms of the British law (26 George II), British ships coming from infected ports must

above all, Ortolan (vol. 1, pp. 158, 159); amongst the Italian, Schiaratella (Del Territorio, p. 8) holding that the greatest range of cannon is the true and only rational basis. Among the older publicists there may be mentioned Surland (sec. 483) and G. F. von Martens (Précis, vol. 1, pp. 141, 142, 309).

hoist a quarantine signal when they meet other ships within 4 leagues of the British coast under penalty of £200 fine. Although this law is of indisputable utility from the sanitary point of view, in general, it is not obligatory on foreign ships within such a distance of the coast. It is within the power of the State whose flag has been the object of the execution of this measure to judge as to whether they shall make a claim or not.

Hautefeuille justly rejects these attempts at domination:

The extent of the territorial sea has been much discussed. Even to-day some nations so extend it that it becomes the annihilation of the principle of the liberty of the sea. The definition of the territorial sea sufficed to fix its extent. Maritime waters become territorial only when they can be defended by the sovereign from the coast in an absolute and permanent manner. It is only those, therefore, absolutely within this power which acquire such character. The actual extent of the defensive power is the limit of the private sea. The majority of sovereign people have adopted this limit. They regard as territorial all that part of the sea comprised within the greatest range of a cannon placed on shore; all claims made by certain nations beyond that limit are illegitimate pretensions which can not be justified.

The limit of 3 miles has a great importance. By miles we mean nautical miles, 60 to a degree, of which 4 make a geographical mile and 3 a marine league. This limit is found in numerous treaties, notably in fishery conventions, in laws regulating declarations of neutrality, and in other acts of divers governments.

Its origin must be sought during the time in which 3 nautical miles was regarded as a limit of the range of cannon. It is undoubtedly true that these national arrangements are obligatory upon those who have concluded them; provisions of law which have the character of municipal regulations and extend the limit of the territorial sea beyond that established by international law need not be recognized by foreign States beyond the accepted limit. The limit based upon the range of cannon is not definitely fixed but it is dependent upon the greatest range of the best cannon. Cannons of great vessels and those of coast batteries carry to-day to a distance of about 8 nautical miles.

Page 42.-(d) Great Bays or Gulfs.-We now undertake to discuss the claims of certain States to rights of dominion over great bays and gulfs. Such pretensions have at times been recognized expressly or tacitly, but they have been combated much more frequently. There can never be any right of property in these parts of the sea. We may cite:

1. Bays whose width is 10 miles or less (one-sixth of a degree) reckoning from the extreme point of the land or sand banks. This delimitation is voiced for the first time in Article 9, of the Anglo

French treaty of August 2, 1839, concerning fisheries on the English Channel. It has thence passed into a number of conventions and decrees concerning the authorization of fishing in national waters. The British Board of Trade has likewise recognized, by a notice of November, 1868, the fishing limits fixed by the North German Confederation for the German coasts. The exclusive right of fishing is always reserved to German fishermen "in the interior of bays or curvatures of the coast, having a width of 10 miles or less reckoning from the extreme points of the land and sand banks." In this case and in other similar ones there is no question of the right of property but merely of an exclusive right in favor of the national fishing, accorded in order to prevent trouble in the pursuit of this industry and enforced by a maritime police with the assistance of naval vessels. Thus, the German navy has frequently protected German fishermen on the coasts of the North Sea against the encroachment of the British and Dutch fishermen.

2. The pretensions of Great Britain concerning the extension of her territorial sovereignty over the wide bays, gulfs, and straits which surround Great Britain and Ireland-that is, the seas called the " narrow seas" and "adjoining seas"-have never been universally admitted and if in certain cases the force of circumstances has permitted these claims to be assorted without contradiction we can not deduce from this fact that they are well founded. The unilateral exercise of pretended rights, even when they do not evoke counterclaims from other States either from connivance or inability to resist, can never be asserted against those who have not acquiesced expressly or by acts of unmistakable import.

Phillimore says, it is true, "the exclusive right of the British Crown to the Bristol Channel between Ireland and Great Britain (Mare Hibernicum, St. Georges Channel) and to the channel between Scotland and Ireland is uncontested," but we must say that this pretended exclusive right is not admitted without contradiction. except by British publicists. Others refuse to recognize it. Woolsey says, section 60:

Great Britain long claimed supremacy in the narrow seas adjoining that island. But the claim, also chiefly satisfied by paying certain honors to the British flag, was not uniformly acquiesced in, and has fallen into desuetude. And if it had been urged and admitted in former times, the force of the prescription would be broken by the plea that the views of the world in regard to the freedom of commerce have become much more enlarged.

Besides the waters that we have just cited-that is, the Bristol Channel, St. George's Channel, St. Patrick's Channel, and the Irish Sea-Great Britain has claimed sovereignty of the same kind, and particularly a right of jurisdiction, over the encroachments of the

sea into the land; that is, over all the waters comprised within a line drawn between two headlands. These inward encroachments of the sea are called Kings chambers. The United States has arrogated to itself similar rights over the great bays of the coast of the United States; thus, in 1793 it claimed the right of property over Delaware Bay. Kent supports these claims. Wheaton likewise admits, as fixed by usage, the right of jurisdiction of the British Crown over these waters. He forgets that such an exclusive right can never, in any way, be acquired by merely taking possession.

In this domain the exercise of certain maritime police powers, whose aim was the security of intercourse, has frequently been confounded with the right of sovereignty and jurisdictional power flowing from it. Modern publicists are less disposed than older ones to recognize this right of sovereignty, and it would be difficult to adduce proofs for the support of the assertion of Twiss, according to whom international law would classify these bays and parts of the sea according to the number of zones in which hostilities may be undertaken in times of war. It is very remarkable and characteristic of the recent doctrine of England that the Territorial Waters Jurisdiction Act limits to 3 miles the extent of the right of jurisdiction over the territorial sea. The explanations which were given upon this point in discussing the bill in the House of Lords prove that the British Government has deemed it inadvisable to contest modern ideas on the liberty of the sea in claiming the right of jurisdiction to such a wide extent.

PHILLIMORE: Commentaries upon International Law. Third edition, London, 1879.

Volume I, page 247.-CLXXII. The question, whether the open sea, or main ocean, could be appropriated by any State to the exclusion of others, has been the subject of celebrated controversies. Spain and Portugal, at different epochs, have claimed exclusive right, founded upon the titles of previous discovery, possession, and Papal grants, to the navigation, commerce, and fisheries of the Atlantic and Pacific Oceans. The Mare Liberum, written by Grotius in 1609, the

1 Elements, vol. 1, p. 170.

2 Albericus Gentilis, lib. i, c. viii. Advocationes Hispanicae, maintains (in 1613) the claim of Great Britain to the Narrow Seas. Wheaton, Law of Nations, vol. 1, pp. 225-9.

Vattel, lib. i, c. xxiii.

Martens, lib. ii, c. i, s. 43. De l'Océan, lib. iv, c. iv, s. 157, Droits sur l'océan et sur la mer des Indes.

Günther, II, p. 28.

A noble work, which can not now be read without profit to the reader and admiration for the writer. It was dedicated "Ad Principes Populosque liberos Orbis Christiani."