by a cannon shot from the coast, that being considered in his day as substantially equivalent to the zone within a marine league of lowwater mark.

Necessity for widening the zone. With the substitution of the long-range guns now in use the conviction is growing that the old rule, so far as the width of the zone is concerned, should cease with its reason. In 1894 the Institut de Droit International indulged in an exhaustive discussion of the question, and there was no division of opinion as to the necessity of giving a greater breadth to the zone- -a decided majority favoring a zone 6 marine miles from low-water mark as territorial for all purposes with the right in a neutral State to extend it in time of war for all purposes of neutrality, after due notice, to a distance from shore equal to the longest range of modern guns. It is idle, however, to talk of the substitution of a new rule. without some kind of international concert.1

2

§ 248.-State legislation extending limit for health and revenue purposes. Its validity.-The conviction that the 3-mile limit is too narrow for health and revenue purposes prompted Great Britain to enact 26 Geo. II, providing that all vessels liable to quarantine shall be required to make signals to other ships within 4 leagues under a penalty; and 9 Geo. II, c. 35, and 24 Geo. III, c. 47 (Hovering Acts), assuming for certain revenue purposes a jurisdiction of 4 leagues from the coasts. The Congress of the United States by acts passed in 1797, 1799 and 1807 has authorized in the same way the seizure of vessels laden with certain cargoes within 4 leagues of the American coasts; and many other maritime nations have made like enactments. Are such statutes, so far as they exceed the generally recognized limit, valid under the laws of nations? Wheaton contended that they were; but his annotator, Dana, after a careful review of the authorities cited to support that statement, concludes that "it may be said that the principle is settled, that municipal seizures cannot be made, for any purpose, beyond the territorial waters. It also settled, that the limit of these waters is, in the absence of treaty, the marine league or the cannon-shot. It cannot now be successfully maintained, either that municipal visits and search may be made beyond the territorial waters for special purposes, or that there are different bounds of that territory for different objects.3 Dana's assumption that the text of his principle is not sustained by the decisions of the Supreme Court of the United States is clearly untenable. Leaving out of view Church v. Hubbard as inconclusive, and admitting that Rose v. Himely is in conflict with the text, there is no good reason to

1 See Taylor, p. 138.

2 Cf. Wharton, Int. Law Dig., §32.

*Note No. 108 entitled "Municipal seizures beyond the marine league or cannon-shot." 2 Cranch, 187.

4 Cranch, 241.

doubt that the case was overruled by Hudson v. Guestier,1 in which it was held that "a seizure, beyond the limits of the territorial jurisdiction, for breach of a municipal regulation, is warranted by the law of nations." It does not follow, however, that the conclusion reached by Dana is untenable. No matter what the view taken by the highest court of any one nation may be, the fact remains that a rule to bind all must have the assent of all or nearly all. If the powers to which they belong object, upon what ground can any State, in matters of trade and health, " venture to enforce any portion of her civil law against foreign vessels which have not as yet come within the limits of her maritime jurisdiction? A State exercises in matters of trade for the protection of her marine revenue, and in matters of health for the protection of the lives of her people, a permissive jurisdiction, the extent of which does not appear to be limited within any certain marked boundaries, further than that it can not be exercised within the jurisdictional waters of any other State, and that it can only be exercised over her own vessels and over such foreign vessels as are bound to her ports." 2

Page 311, § 268.—Immunity of private vessels in territorial waters— Views of Webster and Marshall.-When a private merchant vessel passes into the territorial waters of a foreign State immunity from local jurisdiction, as an incident of the doctrine of exterritoriality, is reduced to a minimum by reason of the fact that the jurisdiction of the State to which the vessel belongs is forced to yield in a greater or less degree to that of the local sovereign. And yet as experience has demonstrated long ago that it is beneficial to commerce for the former to regulate everywhere the internal discipline of the ship, and the rights and duties of the officers and crew towards the vessel or among themselves, the tendency is for the latter to abstain as far as possible from interfering with such internal concerns. It is clear that the ship's company is not a mere collection of isolated strangers, but an organized body of men governed internally by the laws of the country to which the ship belongs. As Mr. Webster said in the case of the Creole," the rule of law and the comity and practice of nations allow a merchant vessel coming into any open port of another country voluntarily, for the purpose of lawful trade, to bring with her and keep over her to a very considerable extent the jurisdiction and authority of the laws of her own country. A ship, say the publicists, though at anchor in a foreign harbor, possessess its jurisdiction and its laws. . It is true that the jurisdiction

of a nation over a vessel belonging to it, while lying in the port of

16 Cranch, pp. 282-285. The quotation in the text is the language of the headnote. Twiss, 1, § 181, citing The Apollo, 9 Wheaton, 371; Kent's Comm., tit. 1, § 31. Cf. Ortolan, Diplomatie de la Mer, liv. ii, ch. xiii, as to the tendency in France.

another, is not necessarily wholly exclusive. We do not consider, or so assert it. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there, by her master or owners, she and they must doubtless be answerable to the laws of the place. Nor if the master and crew while on board in such port break the peace of the community by the commission of crimes can exemption be claimed for them."1 As Chief Justice Marshall said in the Exchange case," when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society and would subject the laws to continual infraction, and the Government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country." 2

TESTA: Le Droit Public International Maritime. Paris, 1886.

[Translated from the Portuguese by Ad. Boutiron.]

Page 67.-There are certain parts of the sea whose situation near the land does not permit the use of the arguments employed against the right of property or domain. We do not apply here a general principle opposed to the liberty of the high seas; on the contrary, it is affirmed. The reason which supports the hypothesis of the impossibility of property or domain on the high seas here ceases to exist. We have to deal under this head with (1) ports and creeks, (2) gulfs and bay, (3) straits and interior seas, (4) portions of the sea which wash the coast.

Ports. None of the reasons invoked against the right of property or domain of the high sea can be applied to ports or creeks situated on the territory of a State which possesses their shores and entrances.

In fact, there is no impossibility of occupation, defense, or maintenance of these portions of the sea in the exclusive and permanent possession of a State and of preventing all foreign action there. Likewise there is no inconvenience for one State or for all, since ports are not elements indispensable for the use of the sea by all nations. They do not constitute a channel for navigation; they are only the point at which a channel ends.

The exclusion which would result from closing the port to other nations would prejudice the interests of the nation which possesses

1 Mr. Webster to Lord Ashburton, Aug. 1, 1842. State Papers, 1843, lxi, 35; 6 Webster's Works, pp. 303-318.

The Schooner Exchange v. McFaddon et al., 7 Cranch, 144.

it, but would not affect the liberty which others have of navigating in the open sea and the reciprocal exchange of their products. We can not doubt, therefore, that ports and creeks belong, under the title of property, to the nation which is mistress of the shore, and that this right of property gives rise to a right of domain. .

Gulfs and bays.-The considerations above advanced apply equally to gulfs and bays whose shores belong to the same Power, when the entrance or mouth is not so wide as to be unable to be commanded by the crossfire of artillery or when they are naturally defended by islands, banks, or reefs which render their permanent or effective possession possible.

We must, therefore, except from this category gulfs and bays of wide extent, which, in spite of their names, which they derive from their geographical configuration, are portions of the high seas. Here we include the Bay of Biscay, the Gulf of Guinea, the Gulf of Lyons, etc., which by their condition can not be subjected to the jurisdiction, much less to the property of the State whose shores they wash.

Page 71-Territorial waters.-All nations, by virtue of their right of independence and the just reason of their security and defense, may establish rules for the admission of aliens to their territory and take such measures of vigilance as they may judge appropriate on their frontiers. Now, maritime frontiers, being by their nature susceptible of aggressions and unforeseen invasions there being need for the repression or prohibition of fraudulent commerce or for the efficacy of sanitary regulations-it follows that a nation must exercise vigilance over vessels which attempt to approach its shores or come with some illicit object in view.

From the sea the natural limits of the State are the shores which border it, but in order that protection and vigilance may be effectively exercised it is admitted among nations, not only by numerous treaties but by general usage, that the maritime boundaries of a State are established by an imaginary line drawn at a suitable distance from the coast, following its sinuosities.

This imaginary line has been called the line of respect.

Territorial waters are those which occupy the space between this line and the shore.

Every ship within this line is said to be within the waters of a State. The right of every nation to exercise vigilance over the waters which wash its coasts is based upon the right which it has to defend and guarantee its interests. Hence results the right of establishing rules there and employing force to maintain its authority.

But if the nation mistress of the shore has the right to close its ports, it can not make the claim of closing the territorial sea or for

bidding passage there, even though it had the material means to do so; it could not morally make itself possessor of these waters, which are a part of the road open to navigation.

It results, therefore, that if the State has not the right of property over the territorial waters it nevertheless retains the right of domain or jurisdiction which can not be legitimately contested. This right ought to be exercised only within the limits in which acts of aggression could be effected or in which the territorial authority could effectively act.

Inspired by these considerations, publicists have adopted an opinion, which is most generally adopted: It is that this line of respect, the limit of the maritime frontier, is determined by the longest range of cannon, and comprises as territorial waters the space of sea which can be commanded by forcible means from the land, that is, the space, where, from the land, entrance may be forbidden, or whose extremity marks the point at which the coast may be threatened. The best demarcation of this limit is, as is apparent, the range of a cannon shot. Bynkershoek establishes this aphorism, Terrae potestas finitur ubi finitur armorum vis.

This usage of tracing a line of respect at the limit of the zone where attack and defense are possible, has not only the advantage of being the one most generally adopted but as being more practical and rational than those proposed by Valin and Rayneval. The first considered as territory that part of the bottom of the sea where the sounding line touched; for the second the visual horizon was the limit.

Although the greatest range of cannon is the measure usually adopted, nothing prevents Powers from conventionally agreeing upon a greater extent to their territorial sea, with the object of common utility or for the better regulation of their respective commercial interests. Plainly these stipulations are only of value for the contracting parties.

Measures tending to prevent fraud or contraband, or maintaining the local police power are established by the sovereign State in its territorial waters and all nations are subjected to these rules.

It is a legitimate principle, although contested by some, that a ship which infringes the fiscal laws of a State in its territorial waters may not only be detained there but may be pursued and captured on the high seas. In this case it is necessary that the pursuit should have commenced within territorial waters and that it be continued without interruption and that the pursued vessel be never lost from sight.

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