anchor, or hovering within the limits of any of the ports of this kingdom, or within four leagues of the coast thereof, or shall be discovered to have been within the said limits or distance. . . . having on board any goods whatsoever, liable to forfeiture, by any act of parliament, upon being imported into Great Britain, then not only all such goods, but also the ship or vessel on board which they shall be found as aforesaid, with all her guns, furniture, ammunition, tackle, and apparel, shall be forfeited. 1786, September 26.-Treaty of navigation and commerce with France, establishing cannon range as the extent of the neutral zone.1 1790, October 28.-Convention with Spain relative to America.2 IV. His Britannic Majesty engages to take the most effectual measures to prevent the navigation and fisheries of his subjects in the Pacific Ocean, or in the South Seas, from being made a pretext for illicit trade with the Spanish settlements; and, with this view, it is moreover expressly stipulated that British subjects shall not navigate, or carry on their fishery in the said seas, within the space of ten sea leagues from any part of the coasts already occupied by Spain. 1794, November 19.-Treaty of amity, commerce, and navigation with the United States, giving cannon range as the extent of the neutral zone.3 1800, July 29, and 1801, November 27.-The cases of the “Twee Gebroeders." 4 Sir W. Scott. On this point I am inclined to think, on an inspection of the charts, and on hearing what has been urged, that she was lying within the limits to which neutrality immunity is usually conceded. She was lying in the eastern branch of the Eems, within what may, I think, be considered as a distance of three miles, at most, from East Friesland. An exact measurement can not easily be obtained; but in a case of this nature, in which the court would not willingly act with an unfavorable minuteness towards a neutral state, it will be disposed to calculate the distance very liberally; and more especially, as the spot in question is a sand covered with water only on the flow of the tide, but immediately connected with the land of East Friesland, and when dry may be considered as making part of it. 1 am of opinion that the ship was lying within those limits in which all 1 See ante, p. 521. 2 British and Foreign State Papers, vol. 1, pt. 1, p. 666. 43 C. Robinson, pp. 163, 336. direct hostile operations are by the law of nations forbidden to be exercised. [In the second case.] Strictly speaking, the nature of the claim brought forward on this occasion is against the general inclination of the law, for it is a claim of private and exclusive property, on a subject where a general, or at least a common use is to be presumed. It is a claim which can only arise on portions of the sea, or on rivers flowing through different states. The law of rivers flowing entirely through the provinces of one State is perfectly clear. In the sea, out of the reach of cannon shot, universal use is presumed. 1802, June 22.-An Act to alter, amend and render more effectual an Act, made in the twenty-fourth year of the reign of his present Majesty, for the more effectual prevention of smuggling in Great Britain.1 That, from and after the passing of this act, every ship, vessel, and boat described in the said recited act, or any other act or acts passed for the extending the provisions thereof, or for the better prevention of smuggling, and which would, under and by virtue of any of the provisions of the said recited act, or any other such act or acts as aforesaid in force on and immediately before the passing of this act, be subject and liable to forfeiture for hovering, or being found or discovered to have been within four leagues of the coast of Great Britain, shall, together with all goods laden on board, and the guns, furniture, ammunition, tackle, and apparel, be subject and liable to forfeiture if hovering, or found or discovered to have been within eight leagues of the coast of Great Britain, under any of the circumstances in the said recited act, or any other such act or acts as aforesaid, specified, described, or mentioned; . . . 1805, November 6, 15 and 20.-The Case of "The Anna."2 This was the case of a ship under American colors, with a cargo of logwood, and about 13,000 dollars on board, bound from the Spanish main to New Orleans, and captured by the Minerva privateer near the mouth of the river Mississippi. A claim was given under the direction of the American Ambassador (Minister) for the ship and cargo, "as taken within the territory of the United States, at the distance of a mile and a half from the western shore of the prin 1 42 George III, cap. 82. 25 C. Robinson, p. 373; Evans, Cases, p. 65. cipal entrance of the Mississippi, and within view of a post protected by a gun, and where is stationed an officer of the United States." When the ship was brought into this country a claim was given of a grave nature, alleging a violation of the territory of the United States of America. This great leading fact has very properly been made a matter of much discussion, and charts have been laid before the court to show the place of capture, though with different representations from the adverse parties. The capture was made, it seems, at the mouth of the river Mississippi, and, as it is contended in the claim, within the boundaries of the United States. We all know that the rule of law on this subject is "terrae dominium finitur, ubi finitur armorum vis," and since the introduction of firearms that distance has usually been recognized to be about three miles from the shore. But it so happens in this case that a question arises as to what is 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 forms a kind of portico to the mainland. It is contended that these are not to be considered as any part of the territory of America; that they are 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 is argued that the line of territory is to be taken only from the Balize, which is a fort raised on made land by the former Spanish possessors. I am of a different opinion; I think that the protection of territory is to be reckoned from these islands; and that they are the natural appendages of the coast on which they bordered, 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 the book of law, Quod vis fluminis de tuo prædio detraxerit, & vicino prædio attulerit, palam tuum remanet (inst. L. 2. Tit. 1, § 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 appendent 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 settlement. 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. I am of opinion that the right of territory is to be reckoned from those islands. That being established, it is not denied that the actual capture took place within the distance of three miles from the islands, and at the very threshold of the river. But it is said that the act of capture is to be carried back to the commencement of the pursuit, and that if a contest begins before, it is lawful for a belligerent cruiser to follow, and to seize his prize within the territory of a neutral State. And the authority of Bynkershoek is cited on this point. True it is, that that great man does intimate an opinion of his own to that effect; but with many qualifications, and as an opinion, which he did not find to have been adopted by any other writers. I confess I should have been inclined to have gone along with him, to this extent, that if a cruiser, which had before acted in a manner entirely unexceptionable, and free from all violation of territory, had summoned a vessel to submit to examination and search, and that vessel had fled to such places as these, entirely uninhabited, and the cruiser had without injury or annoyance to any person whatever, quietly taken possession of his prey, it would be stretching the point too hardly against the captor to say that on this account only it should be held. an illegal capture. If nothing objectionable had appeared in the conduct of the captors before, the mere following to such a place as this is, would, I think, not invalidate a seizure otherwise just and lawful. But that brings me to a part of the case, on which I am of opinion that the privateer had laid herself open to great reprehension. Captors must understand that they are not to station themselves in the mouth of a neutral river, for the purpose of exercising the rights of war from that river, much less in the very river itself. It appears from the privateer's own logbook that this vessel has done both; and as to any attempt to shelter this conduct under the example of King's ships, which I do not believe, and which, if true, would be no justification to others, captors must, I say, be admonished that the practice is altogether indefensible, and that if King's ships should be guilty of such misconduct, they would be as much subject to censure as other cruisers. It is unnecessary to go over all the entries in the log. The captors appear by their own description to have been standing off and on, obtaining information at the Balize, overhauling vessels in their course down the river, and making the river as much subservient to the purposes of war as if it had been a river of their own country. This is an inconvenience which the States of America are called upon to resist, and which this Court is bound on every principle to discourage and correct. . . . The conduct of the captors has on all points been highly reprehensible. Looking to all the circumstances of previous misconduct. I feel myself bound to pronounce that there has been a violation of territory, and that as to the question of property, there was not sufficient ground of seizure; and that these acts of misconduct have been further aggravated by bringing the vessel to England, without any necessity that can justify such a measure. In such a case it would be falling short of the justice due to the violated rights of America, and to the individuals who have sustained injury by such misconduct, if I did not follow up the restitution which has passed on the former day with a decree of costs and damages. 1806, December 31.-Unconfirmed treaty of amity, commerce, and navigation, with the United States establishing a neutral zone of cannon range or three marine miles.1 1811, March 9.-Schedule annexed to the regulations and ordinances of Ceylon. Vessels navigating the inner or alongshore passage are not to hover or anchor in deeper than four fathoms water. Vessels navigating the outer passage are not to hover or anchor within twelve fathoms water. 1818, October 20.-Convention with the United States respecting fisheries, boundary, and the restoration of slaves, reserving a zone of three marine miles for the nationals.3 1819, June 14.-Act of the British Parliament, to enable His Majesty to make regulations with respect to the taking and curing of fish on certain parts of the coasts of Newfoundland, Labrador, and His Majesty's other possessions in North America, according to a convention made between His Majesty and the United States of America. II. And be it further enacted, that from and after the passing of this act it shall not be lawful for any person or persons, not being a See post, p. 642. 2 Fur Seal Arbitration, Proceedings of the Tribunal of Arbitration at Paris, 1893, vol. 2, p. 461. 3 See post, p. 646. 4 Hertslet, Commercial Treaties, vol. 4, p. 491. |