general interests are necessarily or commonly involved in the possession by a State of a right to navigate the waters of other States with its ships of war. Such a privilege is to the advantage only of the individual State, it may often be injurious to third States, and it may sometimes be dangerous to the proprietors of the waters used." But a ship of war as well as a merchantman may have a lawful errand beyond the littoral sea in question, the importance of which consideration we have seen in the case of international rivers. In the course of its lawful voyage it may be difficult for it to avoid the littoral sea, especially if the width of the latter should receive any general extension. And the possession by the littoral sovereign of a right to interrupt the voyage would expose him, if neutral, to the most inconvenient demands from belligerents for his exercise of that right, while his own safety is sufficiently provided for by the authority to regulate which article 5 of the Institute reserves to him. It would be a very difficult matter for ships of war to take up even a temporary station in foreign, though friendly, territorial waters, and except under stress of weather they do not in fact do so without previously obtaining permission. Indeed even for vessels which are not ships of war the right of innocent passage does not include an unlimited right of anchoring or hovering. Fishermen may not in territorial waters even prepare to fish. If they might do so, an impossible strictness of surveillance would be necessary to prevent their fishing in them. Page 203, note to pages 190, 191.2-The doctrine that pearl fisheries may be regarded as an occupation of the bed of the sea, and in that character are territorial, is discussed by Prof. Oppenheim in an article on "The Channel Tunnel and International Law" in Kohler's Zeitschrift für Völkerrecht und Bundesstaatsrecht, 1907, pp. 6-10. His conclusion is that the Ceylon and Bahrein pearl fisheries belong to Great Britain by virtue of unquestioned recognition, but that such recognition is merely a tradition from the times when the freedom of the open sea had not been established. He rejects the acquisition by occupation of any part of the open sea-does not the word "open" beg the question?-and thinks it plain that Vattel did not know that the fisheries in question were beyond usual territorial limits, since he only mentions them as an example under the heading la mer près des côtes peut être soumise à la propriété: 1. I, § 287. We cannot agree in imputing to Vattel a want of the common knowledge about the subjects which he mentions. Limits are not dealt with by him in § 287, and, when he comes to them in § 289, we understand him as allowing the extent of appropriation necessary for the enjoyment of the rights which he has previously admitted. On the legal argument we submit that occupation is a question of fact, and that the case of common fishing boats, which can succeed one another without offensive mutual obstruction in the use of their lines and nets at the same point of the waters, is different from that of a fishery carried on systematically at a certain point and systematically protected there, that point too being identifiable in the stable bed of the sea. Surely the latter case may amount to occupation, and, when it does so, the legal consequences of occupation must follow. Note to page 192.-In Mortimer v. Peters, 14 Scots' Law Times, 227, it was considered that the Moray Firth inside a line from Duneansby Head to Rattray Point might be territorial water, but the decision was based on the Herring Fishery (Scotland) Act, 1889. That Act, however, might be taken as proving that Parliament held an international right to exist as to the extent of sea for which it legislated. WHEATON: Elements of International Law. Eighth edition. Edited, with Notes, by Richard Henry Dana, jr. Boston, 1866. Page 255, § 177.-The maritime territóry of every State extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands, belonging to the same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State.2 (105). Within 1 See ante, p. 466. 2 [105 Territorial Waters.-Grotius extends territorial rights over as much of the sea as can be defended from the shore. Lib. ii, cap. 3, §§13, 14. The argument is that the limit of exclusive jurisdiction should be the limit of the power of regular and effective instruments of war used on and from the lands and territorial possessions of a nation. Hautefeuille adheres to the rule of the cannon-shot; but contends that in case of small bays and gulfs the line from which the cannon shot should be measured is a line drawn from headland to headland. He does not, however, contend for such a line in case of bays so large as to parts of a public ocean. (Droits des Nat. Neutr., I, 89, 239.) Bynkershoek defines the limits thus: "Terrae potestas finitur, ubi finitur armorum vis, quousque tormenta exploduntur." De Dominio Muris, cap. 2. Of the same opinion are Vattel (liv. i, ch. 23, § 289), Azuni (t. i, cap. 2, § 14), Klüber (§ 130), and De Martens (Droit des Gens, § 40). Rayneval limits it to the horizon- -an impracticable test. (Instit. liv. ii, ch. 9, § 10.) Valin contends for a line beyond soundings, "ou l'on ne peut pas trouver le fond." (Comm, sur l'Ordonnance de 1681, liv. v, tit. 1.) But soundings are now had at great depths and in many parts of mid-ocean; and there are great irregularities in soundings and differences in coasts in respect of shallowness. Ortolan treats this subject at great length, and comes to the conclusion that the limit (for which he adopts the phrase of Pinheiro Ferreira, ligne de respect) should be the extent to which projectiles of war can be effectively thrown from the shore, although that must be an advancing line in the improvements made by modern science. (Règl. Intern., I, ch. 8. p. 152-158, edit. of 1864.) Heffter (Europ. Völker., § 75) adopts the same reasoning, and considers the cannon-shot as the test; and that the treaties which fix upon 3 miles, and formerly, fixed upon 2 miles, as the limits, are intended to define the range of artillery. See also Riquelme, Derecho Pub. Intern., I, 253. Jacobson's Sea Laws, 586-590. Tellegen, 50. Halleck's Intern. Law, 130. Emérigon, Des Assurances, ch. 12, § 19. De Cussy, Droit Marit., liv. i, tit. 2, § 40. Wildman's Intern. Law, I, 70. The treaties between England and the United States of 1818, and between England and France of 2d August, 1839, settle the limits of exclusive fishery at 3 marine miles. The English act, 1833, assumes the marine league as the limit of jurisdiction over the open sea.]-D. these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation.1 § 178.-The term "coasts" includes the natural appendages of the territory which rise out of the water, although these islands are not of sufficient firmness to be inhabited or fortified; but it does not properly comprehend all the shoals which form sunken continuations of the land perpetually covered with water. The rule of law in this subject is Terræ dominium finitur, ubi finitur armorum vis; and since the introduction of firearms that distance has usually been recognized to be about 3 miles from the shore 2 (106). In a case before Sir W. Scott (Lord Stowell), respecting the legality of a capture. alleged to be made within the neutral territory of the United States. at the mouth of the River Mississippi, a question arose as to what was to be deemed the shore, since there are a number of little mud islands, composed of earth and trees, drifted down by the river, which form a kind of portico to the mainland. It was contended that these were not to be considered as any part of the American territory-that they were a sort of "no man's land," not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. It was argued that the line of territory was to be taken only from the Balize, which is a fort raised on made land by the former Spanish possessors. But the learned judge was of a different opinion, and determined that the protection of the territory was to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which, indeed, they were formed. Their elements were derived immediately from the territory; and, on the principle of alluvium and increment, on which so much is to be found in the books of law, Quod vis fluminis de tuo praedio detraxerit, et vicino praedio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Whether they were composed of Grotius, De Jur. Bel. ac Pac., lib. ii, cap. 3, § 10; Bynkershoek, Quaest. Jur. Pub. lib. i, cap. 8; De Dominio Maris, cap. 2; Vattel, liv. i, ch. 23, § 289; Valin, Comm. sur l'Ordonnance de la Marine, liv. v, tit. 1; Azuni, Diritto Marit, pt. i, cap. 2. art. 3, § 15; Galiani, Dei Doveri dei Principi Neutrali in Tempo di Guerra, liv. 1; Life and Works of Sir L. Jenkins, vol. ii, 780. 2 Unde dominium maris proximi non ultra concedimus, quàm e terrâ illi imperari potest, et tamen eo usque; nulla siquidem sit ratio, cur mare, quod in alicujus imperio est et potestate, minus ejusdem es se dicamus, quàm fossam in ejus territorio. Quare omnino videtur rectius, eò potestatem terrae extendi, quousque tormenta exploduntur, eatenus quippe cùm imperare, tum possidere videmur. Loquor autem de his temporibus, quibus illis machinis utimur: alioquin generaliter dicendum esset, potestatem terrae finiri, ubi finitur armorum vis; etenim haec, ut diximus, possessionem tuetur. Bynker shoek, De Dominio Maris, cap. 2. Ortolan, Diplomatie de la Mer, liv. ii, ch. 8. [100 See note No. 105, ante.]—D. earth or solid rock would not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil1 (107). $179.-The exclusive territorial jurisdiction of the British Crown. over the inclosed parts of the sea along the coasts of the island of Great Britain, has immemorially extended to those bays called the King's Chambers; that is, portions of the sea cut off by lines drawn from one promontory to another. A similar jurisdiction is also asserted by the United States over the Delaware Bay, and other bays and estuaries forming portions of their territory. It appears from Sir Leoline Jenkins that both in the reigns of James I and Charles II the security of British commerce was provided for by express prohibitions against the roving or hovering of foreign ships of war so near the neutral coasts and harbors of Great Britain as to disturb or threaten vessels homeward or outward bound; and that captures by such foreign cruisers, even of their enemies' vessels, would be restored by the Court of Admiralty, if made within the King's Chambers. So, also, the British "Hovering Act," passed in 1736 (9 Geo. II, cap. 35), assumes, for certain revenue purposes, a jurisdiction of 4 leagues from the coasts, by prohibiting foreign goods to be transshipped within that distance, without payment of duties. A similar provision is contained in the revenue laws of the United States; and both these provisions have been declared, by judicial authority in each country, to be consistent with the law and usage of nations 2(108). 1 Robinson's Adm. Rep. V. 385, (c) The Anna. [107 See also Halleck's Intern. Law, 130. Wildman's Intern. Law, I. 39. Ortolan, Domaine Intern., § 93. De Pistoye et Duverdy, Traité des Prises, tit. 2, ch. 1, § 1. Islands adjacent to the coast of the mainland, though not formed from it by alluvium or increment, are considered as appurtenant, unless some other power has obtained title to them by some of the recognized modes of acquisition. Halleck's Intern. Law, 131 Ortolan, Règl. Intern., liv. ii, ch. 8]-D Life and Works of Sir L. Jenkins, II, 727, 728, 780. Opinion of the United States Attorney General on the capture of the British ship Grange in the Delaware Bay, 1793. Walte's American State Papers, I, 75. The Louis, Dodson's Adm. Reports, II, 245. Church v. Hubbard, Cranch, § 281, II, 187. Vattel, Droit des Gens, liv. i, ch. 22. [108 Municipal Seizures beyond the Marine League or Cannon-shot.-The statement in the text requires further consideration. It has been seen that the consent of nations extends the territory of a State to a marine league or cannon-shot from the coast. Acts done within this distance are within the sovereign territory. The war-right of visit and search extends over the whole sea. But it will not be found that any consent of nations can be shown in favor of extending what may be strictly called territoriality, for any purpose whatever, beyond the marine league or cannon shot. Doubtless States have made laws, for revenue purposes, touching acts done beyond territorial waters; but it will not be found that in later times the right to make seizures beyond such waters has been insisted upon against the remonstrance of foreign States or that a clear and unequivocal judicial precedent now stands sustaining such seizures, when the question of jurisdiction has been presented. The revenue laws of the United States, for instance, provide that if a vessel bound to a port in the United States shall, except from necessity, unload § 180.-The right of fishing in the waters adjacent to the coasts of any nation, within its territorial limits, belongs exclusively to the subjects of the State. The exercise of this right, between France and Great Britain, was regulated by a Convention concluded between these two powers; in 1839, by the 9th article of which it is provided that French subjects shall enjoy the exclusive right of fishing along the whole extent of the coasts of France, within the distance of 3 geographical miles from the shore, at low-water mark, and that British subjects shall enjoy the same exclusive right along the whole extent of the coasts of the British Islands, within the same distance; it being understood, that upon that part of the coasts of France lying cargo within 4 leagues of the coast and before coming to the proper port for entry and unloading and receiving permission to do so, the cargo is forfeit, and the master incurs a penalty (Act 2d March, 1797, § 27); but the statute does not authorize a seizure of a foreign vessel when beyond the territorial jurisdiction. The statute may well be construed to mean only that a foreign vessel, coming to an American port and there seized for a violation of revenue regulations committed out of the jurisdiction of the United States, may be confiscated; but that, to complete the forfeiture, it is essential that the vessel shall be bound to and shall come within the territory of the United States, after the prohibited act. The act done beyond the jurisdiction is assumed to be part of an attempt to violate the revenue laws within the jurisdiction. Under the previous sections of that act it is made the duty of revenue officers to board all vessels, for the purpose of examining their papers, within 4 leagues of the coast. If foreign vessels have been boarded and seized on the high sea, and have been adjudged guilty, and their governments have not objected, it is probably either because they were not appealed to or have acquiesced in the particular instance from motives of comity. The cases cited in the author's note do not necessarily and strictly sustain the position taken in the text. In The Louis (Dodson, II, 245), the arrest was held unjustified, because made in time of peace for a violation of municipal law beyond territorial waters. The words of Sir William Scott, on pp. 245 and 246, with reference to the Hovering Acts, are only illustrative of the admitted rule, that neighboring waters are territorial; and he does not say, even as an obiter dictum, that the territory for revenue purposes extends beyond that claimed for other purposes. On the contrary, he says that an inquiry for fiscal or defensive purposes, near the coast but beyond the marine league, as under the hovering laws of Great Britain and the United States, "has nothing in common with the right of visitation and search upon the unappropriated parts of the ocean"; and adds, “A recent Swedish claim of examination on the high seas, though confined to foreign ships bound to Swedish ports, and accompanied, in a manner not very consistent or intelligible, with a disclaimer of all right of visitation, was resisted by the British Government, and was finally withdrawn.” Church . Hubbard (Cranch, II, 187) was an action on a policy of insurance, in which there was an exception of risks of illicit trade with the Portuguese. The voyage was for such an illicit trade, and the vessel, in pursuance of that purpose, came to anchor within about four leagues of the Portuguese coast; and the master went on shore on business, where he was arrested, and the vessel was afterwards seized at her anchorage and condemned. The owner sought to recover for the condemnation. The court held that it was not necessary for the defendants to prove an illicit trade begun, but only that the risks excluded were incurred by the prose cution of such a voyage. It is true that Chief Justice Marshall admitted the right of a nation to secure itself against intended violations of its laws, by seizures made within reasonable limits, as to which, he said, nations must exercise comity and concession, and the exact extent of which was not settled; and, in the case before the court the four leagues were not treated as rendering the seizure illegal. This remark must now be treated as an unwarranted admission. The result of the decision is that the court did not undertake to pronounce judicially, in a suit on a private contract, that a seizure of an American vessel, made at four leagues by a foreign power, was void and a mere trespass. In the subsequent case of Rose r. Himely (Cranch, IV, 241), where a vessel was seized ten leagues from the French coast, and taken to a Spanish port, and condemned in a French tribunal under municipal and not belligerent law, the court held that any seizures for municipal purposes beyond the territory of the sovereign are invalid; assuraing, perhaps, that ten leagues must be beyond the territorial limits for all purposes. In Hudson v. Guestier (Cranch, IV, 293), where it was agreed that the seizure was municipal |