had occurred in the roadstead of Pillau, and consequently, in a territorial sea of the King of Prussia; both the bays and the gulfs, the claimants added, belonged to the State in which they are situated. To prove their assertions, they cited: (1) Article 1, chapter 8, book 7, of the decree of 1681, which is worded as follows: "It is our will that the roadsteads be free to all vessels belonging to our subjects or allies, throughout the extent of our dominion; we forbid all persons of any degree or rank whatsoever, in any way to molest or obstruct such vessels, on pain of corporal punishment"; (2) The opinion of Valin on article 24, chapter 9, book 3, of the same decree, to the effect that a prize would be unlawful, if taken in a foreign port, either friendly or neutral, or on the coast of the hostile country; (3) The doctrine of Hubner, in his Treatise on the Seizure of Neutral Ships: (4) That of Azuni, in his Universal System of the Principles of European Maritime Law, the second edition of which bears the title. European Maritime Law (Le droit maritime de l'Europe): "As a consequence of the sovereignty over the sea," says this author, "every port must be considered as belonging to the jurisdiction of the reigning sovereign." The obligations binding, in the case of ports, upon the shipping that approaches them, “are,” he adds, “ also applicable to bays and gulfs, since they likewise constitute a part of the sovereignty of the ruler in whose dominion they are situated, being also under his protection and safeguard. Consequently the refuge afforded by a bay is no less inviolable than that of a port; and any attack made in either must be considered a manifest violation of international law." The attorney general, M. Collet-Descotils, refuted these reasons in the following manner: The Council knows that after long controversies among the publicists concerning the extent that should be given to the liberty of the territorial sea, this distance has been definitely fixed by common law at cannon range from the shore. This distance is that adopted by the Empress of Russia in her ruling of December 31, 1787, Article 2, concerning privateers; by the Grand Duke of Tuscany, Pierre-Léopold, in his ruling of August 1, 1778, Article 1, by the Republic of Genoa in its manifesto of July 1, 1779, Article 1, and by the Republic of Venice in its edict of September 9, 1779, Article 9. But the claimants make a distinction between the coast and the gulfs, bays, and roadsteads; they claim that the ships taking refuge there are under the protection of the sovereigns to whom the coasts belong. I know that in support of this plea they have cited the opinion of a justly reputed publicist; but I know, too, that this author, in the second edition of his work, modified in part the opinion pronounced by him in the first edition. The opinion pronounced by Valin is not favorable to the case of the claimants as assumed. As for that of Hubner, he says, "it is a question whether belligerents have the right to visit and seize ships in open roadsteads of neutral ports or countries." His answer to this question is that "the arguments pro and con would seem to decide this question in favor of the negative." Moreover, he closes with the following statement: "However difficult it be to determine exactly how far the dominion of the sovereign of the adjacent coast extends, it is sufficiently certain that it does nevertheless extend as far as the range of its artillery, which it can at any time use by way of effective warning to those who forget that they are violating the rights of that dominion." In the present matter we are less concerned with examining the opinion of the various authors on the point in question than we are with ascertaining the rule to be followed according to the common law established by the several powers of Europe. As regards bays, some are closed-that is, defended; others are open and without defense; and it seems that the one in which the roadstead of Pillau is situated is of the second variety. This roadstead is, consequently, simply an open roadstead, in a part beyond that which can be defended or protected by the artillery of the port. Now, the prizes made by the privateer, the Tilsit, were all made beyond that distance, since, according to the statements of the captor, they were made between 3 and 4 leagues from the land, and, according to the statements of those captured, some were made at a distance of about 3 leagues from the land and others at a distance of more than 2 leagues. The ruling of the grand duke of Tuscany, August 1, 1778, Article 1, says that "no prize shall be made in the seas adjacent to the Tuscan harbors, seaports, lighthouses, and shores, nor any act of hostility committed within cannon range.” Article 1 of the edict of Genoa, of July 1, 1779, is worded as follows: "No act of hostility between belligerent powers shall be committed in the ports or gulfs, or along the shores of our dominion, within cannon range." The Republic of Venice, in its edict of September 9, 1779, Article 9, also decreed that "no act of hostility should be committed in the harbors, roadsteads, or along the shores of its dominion, nor in any sea adjacent thereto, except beyond the range of a heavy battery gun." Article 2 of the ruling of Her Majesty, the Empress of Russia, with regard to privateering, under date of December 31, 1787, is worded as follows: "Russian privateers may pursue enemy ships of war and merchantmen, and attack, seize, or destroy them wherever opportunity offers, except when the ship, seeking refuge, puts itself in due time under the protection of the cannon of a harbor or of the coasts of a neutral power. Moreover, they must not engage in any hostility in the roadsteads or harbors belonging to neutral powers, before the enemy shall have passed beyond the distance of the range of a cannon from the shore." I observe with regard to this final clause, that no distinction is to be made as to whether a ship has passed beyond the distance of the range of a cannon from the shore, or whether it has been anchored there. From the quotations that I have just made it will be evident to the Council that we must consider as a generally recognized principle the fact that roadsteads and bays do not render the ships that cast anchor there inviolable, except as these ships remain under the protection of the cannon of the harbor or of the coast. Now, this is exactly what the Daniel Frederick did not do. It cast anchor--one only-more than twice the distance of the range of a cannon from either Pillau or the coast, and waited in readiness to set sail, if permission was not granted it to enter the harbor. It is a matter of indifference whether the captain and the supercargo were or were not on land, for this request on their part can not constitute any claim either for or against them. Hence I conclude that there was no violation of the territorial sea of His Majesty, the King of Prussia, in the case of the prize of the Daniel Frederick; and that the complaints made by the Ambassador of His Majesty, the King of Prussia, in behalf of the captured, have been made only as the result of an inexact statement, by those captured, of the true circumstances of the said capture. Dated the nineteenth of October, 1808, decision of the Prize Council declaring valid the seizure of the Daniel Frederick. 1870, July 25.-Instructions issued by the Minister of Marine and Colonies to the officers commanding the fleets and vessels of His Imperial Majesty.1 You will find below the declaration made on the 20th inst. to the senate and legislative body setting forth the necessity in which His Majesty finds himself of taking up arms against Prussia to defend the honor and interests of France and to protect the general equilibrium of Europe. 4. Territorial waters.-Neutrals. You will abstain from any act of hostility in the territorial waters of neutral powers, and you will regard territorial waters as extending to the limit of cannon range from low-water mark. Supplementary instructions.-1. However unrestricted the right of visit in time of war may be, there are two cases in which you should absolutely refrain from exercising it. 2. When the said vessels are within the territorial waters of a neutral power. Territorial waters include along all coasts a zone extend 1 Barboux, Jurisprudence du Conseil des Prises pendant la guerre de 1870-1871, Annexes Nos. 1 and 2. ing from 3 miles from low-water mark, this distance being generally adopted to-day as the average limit of gun range. (Article 4 of the General Instructions.) 1888, July 31.-Circular of the Minister of the Marine and Colonies to the maritime authorities for the execution of the international convention of March 14, 1884, relating to the protection of submarine cables.1 It is proper, then, in these circumstances and with regard to the application of the convention on the coasts of France, to assign to the territorial sea, from the point of view of the policing of telegraphs, a width of three marine miles; this distance has, moreover, been adopted for our territorial waters by the first article of the law of March 1, 1888, concerning the prohibition of fishing by foreigners in the French territorial zone. 1904, March 9.-Convention with Switzerland to regulate fishing in frontier waters.2 SWITZERLAND. 1904, March 9.-Convention with France to regulate fishing in frontier waters.3 ARTICLE 10. The guards of each country can follow offenders and seize prohibited apparatus and fish within a radius of 5 kilometers from the frontier of their respective States. 1 Revue internationale de droit maritime, 1888-1889, p. 213. Martens, Nouveau recueil général, 2d series, vol. 33, p. 508. О |