In other words, a nation's right to compel others to keep the peace in the open sea near its coasts extends over so much of the sea as the nation could command by artillery placed on its coast. This extent has hitherto been fixed by general consent at a maritime league, or 3 miles seaward; but from the great improvements which have recently been made in the range of cannons, it is probable that a line of 5 miles will hereafter be adopted as the measure. But the right of the State to exclusive jurisdiction over the adjacent sea within the range of cannon-shot applies only to purposes of defense, to the protection of the State's fisheries, revenues, and to secure its maintenance of neutrality. It does not make the sea within the specified limit a part of the State's property, although the vague expressions of some Publicists might seem to imply as much. There are several judgments of the English tribunals which are express on the subject. One is in the case of the King v. 49 Casks of Brandy, reported in 3 Haggard, p. 259. Sir John Nicholl, the Judge of the Admiralty Court, in giving judgment on that case, used these words: "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-namely, that their own subjects shall not be disturbed in their fishing, and particularly in their coasting trade and communications between place and place during war; and they would be exposed to danger if hostilities were allowed to be carried on between belligerents nearer to the shore than 3 miles; but no person ever heard of a land jurisdiction of the body of a county, which extended to 3 miles from the coast." This is corroborated by the judgment of the Lord Chancellor pronounced in Gann v. the Company of Free Fishers of Whitstable, decided in the House of Lords in 1865. This matter also received adjudication in the case of the Saxonia, reported in Lushington's Admiralty Reports, vol. i, p. 140. In that case a foreign ship, that was navigating part of the sea between the Isle of Wight and Hampshire, less than 3 miles from the shore, was treated both by the Judge of the Admiralty Court and by the Lords of the Privy Council in Appeal as being on the high seas. In an earlier case, the Twee Gebroeders, 3 Robinson, 352, Lord Stowell, in speaking of a part of the waters of the Western Eems, which part was assumed, for the purpose of argument, to be within 3 miles of the coast of East Friesland, said of it: "Such waters are considered as the common thoroughfare of nations, though they may be so far territorial that any actual exercise of hostility is prohibited therein." 242. Sometimes, from the nature of the shore, it is not easy to fix the point whence the measurement of the fixed distance seaward shall be drawn. In such cases, Courts of International Law will he disposed to calculate the distance liberally. This involves a liberal construction as to the extent of territory strictly speaking. Thus,

in the case of The Anne La Porte, 5 Robinson, 373, it appeared that "there were a number of little mud islands composed of earth and trees drifted down by the River Mississippi, and which formed a kind of portico to the mainland. The capture in question took place within three miles of these islands, but beyond that distance from the mainland. It was contended that such islands were not to be considered as any part of the territory of America-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 also argued that the line of territory was to be taken only from Balize, a fort raised on made land by the former Spanish possessors." Lord Stowell, however, held that the protection of territory was to be reckoned from these islands. "They are," he observed, "the natural appendages of the coast on which they border, and from which indeed they are formed. Their elements are derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in books of law. Quod vis fluminis de tuo praedio detraxerit et vicino praedio attulerit, palam tuum remanet" (Inst. lib. ii, tit. 1. sec. 21), even if it had been carried over to an adjoining territory. Consider what the consequence would be if lands of this description were not considered as appendant to the mainland, and as comprised within the bounds of territory. If they do not belong to the United States of America, any other power might occupy them; they might be embanked and fortified. What a thorn would this be in the side of America! It is physically possible, at least, that they might be so occupied by European nations; and then the command of the river would be no longer in America, but in such settlements. The possibility of such a consequence is enough to expose the fallacy of any arguments that are addressed to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock will not vary the right of dominion for the right of dominion does not depend upon the texture of the soil."

243. The waters within this 3-mile limit from the coast are called by Dr. Twiss a State's Jurisdictional waters; and the term is convenient as distinguishing them from the parts of the sea that are within its ports, havens, and land-locked gulfs, which may be quite correctly called its territorial waters.

But there are some important matters, such as the right to fish. and the right to take submarine productions, which require special notice. A material difference is practically acknowledged to exist between the general right to fish and take other marine products in the open sea, and the right to do so in Jurisdictional waters. Of course, in Territorial waters (as recently explained) the right be

longs exclusively to the State that owns the territory. But the Practice of nations has sanctioned the exclusive right of every nation to the fisheries in the waters adjacent to its coasts within the limits of its Maritime Jurisdiction; and accordingly we find that a permission for the subjects of one nation to fish within the Jurisdictional waters of another nation is a frequent subject of treaty engagement. The various uses of the sea," writes Vattel, "near the coasts render it very susceptible of property. It furnishes fish, pearls, shells, amber. etc. Now, in all these respects its use is not inexhaustible; wherefore the nation to which the coasts belong may appropriate to itself an advantage which Nature has so placed within its reach as to enable it conveniently to make itself master of it, and to turn it to profit, in the same manner as it has been able to occupy the dominion of the land which it inhabits. Who can doubt that the pearlfisheries of Bahrem and Ceylon may lawfully become property? And though, where the catching of swimming fish is the object, the fishery appears less liable to be exhausted; yet if a nation has on its coast a particular fishery of a profitable nature, and of which it may render itself master, shall it not be permitted to appropriate to itself that natural benefit as an appendage to the country which it possesses, and to reserve to itself the great advantages which it may derive by commerce, in case there be a sufficient abundance of fish to enable it to furnish the neighboring nations with a supply? But if, so far from making itself master of a fishery, a nation has once acknowledged the common right of other nations to come and fish there, it can no longer exclude them from it: it has left that fishery to its primitive state of communion, at least with respect to those who have been accustomed to take advantage of it."

245. States may exercise a qualified jurisdiction over the seas near their coasts for more than the three (or five) limit for fiscal and defensive purposes: that is, for the purpose of enforcement of their revenue laws, and in order to prevent foreign armed vessels from "hovering on their coasts" in a menacing and annoying manner. Both Great Britain and the United States have prohibited the transshipment within four leagues of their coasts of foreign goods without payment of duties. The American Supreme Court has declared this regulation to be founded on International law.

246. There are also certain "narrow seas" over which particular States claim jurisdiction, through portions of such seas (and the greater portions) may be more than 3 miles from the coasts of those nations, and though the opposite shore may belong to another nation. It is not often in such cases that a particular nation now insists on its right to the entire property in such narrow sea, though he language of some writers on the subject goes to this extent.

But

still the jurisdictional claims put forward are sometimes very ample. A claim of this kind is commonly called a claim of Mare Clausum; and the discussions as to Mare Clausum or Mare Liberum are memorable in the history of Jurisprudence. According to Martens, who wrote about a century ago, the following seas are acknowledged as free: "the Spanish Sea, the Aquitain Sea, the North Sea, the White Sea, the Mediterranean Sea, and the Straits of Gibraltar. The three Straits between Denmark and Sweden are under the dominion, and are looked on as the property of the King of Denmark; St. George's Channel, between Scotland and Ireland, is under the dominion of Great Britain; the Straits of Sicily are under the dominion of the King of Sicily; the Gulf of Bothnia is under the dominion of the King of Sweden; the Black Sea, the Egean Sea, the Bosphorus of Thrace, the Propontis, and the Hellespont are all under the dominion of the Turkish Empire." The state of things is much the same at present, except probably with regard to the Egean Sea, and except with regard to the Black Sea, which, by reason of its magnitude, seems to be incorrectly classed with the other seas which have been mentioned. The exclusive claims of the Sultan to rights over this sea appear to have depended on the fact that it is, or was, only accessible through straits of which the Sultan owned both coasts, and on the fact that for a long period the whole of the territories round the Euxine were Ottoman territories. This has ceased to be the case since the extensive conquests effected by the Russians to the north and west of its waters. The navigation of the Black Sea is now regulated by treaty.

DE CUSSY: Phases et Causes Célèbres du Droit Maritime des Nations. Leipzig, 1856.

Volume 1, § 40, page 91.-Territorial Sea. We said that the use of the sea in principle and as a natural and specific right belongs to all nations. This use is general and absolute over all parts of the sea to which we may apply the name open sea, that is the ocean, which separates the different mainlands of the globe, and which comprises four great seas.

But the protection of the territory of a nation and its shore fishing, which is the chief resource of the inhabitants of the coast region shows the necessity of recognizing a martime territory, or, better still, a territorial sea, for all coast States-that is, some definite distance from the coast considered as a continuation of the territory, and over which the special sovereignty of each maritime nation might extend.

Upon this maritime territory of the State there necessarily depend maritime regions not exclusively possessed over which the State has acquired, by express or tacit convention of all other States, a special right, over which, therefore, it continues to exercise its sovereignty. But States have claimed to establish, each in its own personal interests, special and various limits, whose exaggerated extent must unquestionably become the occasion, in many instances, of contradiction and contests on the part of other States. A great number of distinguished publicists, in spite of their incontestable merit, have not adduced greater wisdom on this point than the States themselves.

Many governments and publicists have carried this limit of the territorial sea to 40, 60, and even 100 marine miles from shore. Denmark claimed sovereignty and property over the sea up to 4 miles around Iceland and 15 miles around Greenland.

Several treaties formerly fixed the limits of sovereignty over the sea which washes the coast of a State at 15 leagues, others fixed it at 4 leagues.

France included in its treaties of 1685 and 1767 with Morocco a clause that cruisers of this latter State could not make prizes within 6 leagues of France and that no Moroccan ship could cruise within 30 miles of the French shore. Finally, the French law of March 24, 1794, concerning customs, provides "that ships below 100 tons, navigating or at anchor within 4 leagues of the coast of France, except in the case of force majeure, may be visited by customs inspectors.” and the decree of 27 Thermidor, year 8 (August 15 [July 16], 1800), fixed the distance of 2 marine leagues as constituting the limit within which no prize could be declared good.

As to the publicists, some, like Baldus and Bodin and Targa, speak of 60 miles from the shore, others of 100 miles. Loccenius, a Swedish publicist, who died in 1677, extended the property into the sea to a distance of two days' journey.

Grotius, among the publicists previous to the eighteenth century, is the only one who arrives at the truth by saying that the limit of sovereignty of the territorial sea is that which may be defended from the shore.

Valin, the learned and able commentator of the ordinance of August, 1681, limits the extent of the jurisdiction over the sea to the range of cannon. He agrees with Grotius.

Since then Azuni, Klüber, and others have adopted the same limit. It is likewise established in various regulations in a great number of treaties.

Edict of the Republic of Genoa of July 1, 1779: Article 1: No act of hostility shall be committed between the belligerent Powers in the ports, gulfs, and on the coasts of our dominion at a distance within gunshot.

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