warship to intolerable interruption.1 Oppenheim says it may be safely stated that the right of foreign States for their men-of-war to pass unhindered through the maritime belt is not generally recog nized, and that States have a right to exclude them, though in practice this is not done, while as regards straits, it is a customary rule of international law that the right of passage through such parts of the territorial waters as form part of the highway for international traffic cannot be denied to foreign men-of-war. Despagnet in effect adopts the resolutions of the Institute of International Law on both points, as also does J. B. Moore. Bonfils-Fauchille allows the territorial State to forbid passage through its territorial straits, sauf le respect des convenances internationales,' but adds that passage through its territorial waters can only be forbidden in time of war and if the territorial Power is belligerent."

The Bosphorus and Dardanelles which are Turkish territorial straits connecting the Black Sea and the Mediterranean, owing to historical reasons, stand on a peculiar footing. Until the conquest of the Crimea by Russia in 1774 the Black Sea was in effect a Turkish lake, but after this date the Porte by various treaties allowed foreign merchant ships to pass through the straits. The Treaty of the Dardanelles of 1809, between Great Britain and Turkey, recognized that it was the 'ancient rule of the Ottoman Empire' that foreign warships should be excluded. In the Treaties of London 1841 and Paris 1856 the Powers recognized the existence of the rule, but the Treaty of Paris allowed the passage of light cruisers in the service of the embassies at Constantinople and of small warships for the protection of international works at the Danube mouth, and the waters and ports of the sea were thrown open to the mercantile marine of every nation, but warships were excluded (Art. 11). The Treaty of London 1871, gave a 'power to His Imperial Majesty the Sultan to open the said straits in time of peace to the vessels of war of friendly and allied Powers, in case the Sublime Porte should judge it necessary in order to secure the execution of the stipulations of the Treaty of Paris of 30 March, 1856.' The passage through the Dardanelles in 1904 of the Russian volunteer cruisers Smolensk and Petersburg under the merchant flag, and their subsequent conversion into cruisers on the high seas raised a serious dispute between Great Britain and Russia as to a violation of the Treaties regulating the passage of the straits. The closing of the Dardanelles by the Porte to commercial traffic for a short time in April, 1912, during the war be

tween Turkey and Italy, again raised serious questions; the loss to neutral shipping was estimated at £3,000 a day. It is not quite clear whether the merchant vessels of States other than Russia have a right by treaty to the free passage of the Dardanelles and entrance and exit to the Black Sea, though Article 24 of the Treaty of San Stefano provides that the Bosphorus and Dardanelles shall remain open in time of war as in time of peace to the merchant vessels of neutral States arriving from or bound to Russian ports. In the course of a debate. in the House of Lords on May 3, 1912, while the closing of the Straits by Turkey as an act of self-preservation was recognized, Lord Lansdowne pointed out that 'the real question, which will have to be considered sooner or later, is the extent to which a belligerent Power, controlling narrow waters which form a great trade avenue for the commerce of the world, is justified in entirely closing such an avenue, in order to facilitate the hostile operations in which the Power finds itself involved.' Such a settlement must needs follow the present international conditions.1

It is usual in works on international law to enumerate a list of servitudes to which the territory of a State may be subjected. Amongst them are the reception of foreign garrisons in fortresses, fishery rights in territorial waters, telegraphic and railway privileges, the use of a port by a foreign power as a coaling station, an obligation not to maintain fortifications in particular places, and other derogations of like kind from the full enforcement of sovereignty over parts of the national territory. These and such-like privileges or disabilities must however be set up by treaty or equivalent agreement; they are the creatures not of law but of compact. The only servitudes which have a general or particular customary basis are, the above-mentioned right of innocent use of territorial seas, customary rights over forests, pastures, and waters for the benefit of persons living near a frontier, which seem to exist in some places, and possibly a right to military passage through a foreign State to outlying territory. In their legal aspects there is only one

1 See Holland, The European Concert in the Eastern Question, 225; Letters on War and Neutrality (2nd. ed.), 50-4; Westlake, Peace, 197–200; Oppenheim, i. § 197; Perels, § 5, p. 39; T. Baty, in Jahrbuch des Völkerrechts (1913) 1. 631-9; American Journal of Intersational Law (1912) vi. 706-9.

It is extremely doubtful whether any instances of a right to military passage have survived the simplification of the map of Central Europe. [The treatment of the right of innocent passage as an international servitude is criticised by Oppenheim, i. § 203. See also Pitt Cobbett, Leading Cases: Peace, 111. The theory of state servitudes was rejected by the Arbitrators in the North Atlantic Coast Fisheries Case on the grounds that a servitude in international law predicated an express grant of a sovereign right, that the theory originated under the peculiar and more obsolete conditions prevailing in the Holy Roman Empire and was unsuitable to modern conditions. (For criticism of these arguments see Oppenheim, op. cit., and authorities there cited.) A case decided by the Supreme Court of Cologne on April 21, 1914, in which the Dutch Government sued the Aix-la-Chapelle-Maestricht Railway Co., recognized the existence of an international servitude. American Journal of International Law viii (1914) 858-860.]

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point upon which international servitudes call for notice. They conform to the universal rule applicable to ' jura in re aliena.' Whether they be customary or contractual in their origin, they must be construed strictly. If therefore a dispute occurs between a territorial sovereign and a foreign power as to the extent or nature of rights enjoyed by the latter within the territory of the former, the presumption is against the foreign State, and upon it the burden lies of proving its claim beyond doubt or question.

Page 204.-§ 55. From what has been said it is clear that there is now a great preponderance of authority in favor of the view that a vessel of war in foreign waters is to be regarded as not subject to the territorial jurisdiction. This being the case the law may probably be stated as follows:

A vessel of war, or other public vessel of the State, when in foreign waters is exempt from the territorial jurisdiction; but her crew and other persons on board of her cannot ignore the laws of the country in which she is lying, as if she constituted a territorial enclave. On the contrary, those laws must as a general rule be respected. Exceptions to this obligation exist, in the case of acts beginning and ending on board the ship and taking no effect externally' to her, firstly in all matters in which the economy of the ship or the relations of persons on board to each other are exclusively touched,1 and secondly to the extent that any special custom derogating from the territorial law may have been established, perhaps also in so far as the territorial law is contrary to what may be called the public policy of the civilized world. In the case of acts done on board the vessel, which take effect externally to her, the range of exception is narrower. The territorial law, including administrative rules, such as quarantine regulations and rules of the port, must be respected, to the exception, it is probable, of instances only in which there is a special custom to the contrary. When persons on board a vessel protected by the immunity under consideration fail to respect the territorial law within proper limits the aggrieved State must as a rule apply for redress to the government of the country to which the vessel belongs,-all ordinary remedies for, or restraints upon, the commission by persons so protected of wrongful acts affecting the territory of a State being forbidden. In extreme cases, however, as where the peace of a country is seriously threatened or its sovereignty is infringed, measures may be taken against the ship itself, analogous to those which in like circumstances may be taken

1 The case which, however, would be extremely rare on board a ship of war, of a crime committed by a subject of the State within which the vessel is lying against a fellow subject, would no doubt be an exception to this. It would be the duty of the captain to surrender the criminal.

against a sovereign; it may be summarily ordered out of the territory, and it may if necessary be forcibly expelled..

Page 790.-All neutral mercantile vessels are subject to visit upon the high seas, and within the territorial waters of the belligerent or

his enemy.

HALLECK: International Law. Fourth edition. London, 1908.

Volume 1, page 134, § 18.-Questions of territorial jurisdiction, or dominion over the narrow seas, have not unfrequently given rise to contentions with respect to the maritime honors to be rendered to the flag of the State claiming such dominion, by the vessels of others who denied its pretensions to such supremacy. This kind of supremacy was claimed by Great Britain over the narrow seas, by Denmark over the Sound and Belts at the entrance of the Baltic Sea, and by Venice over the Adriatic Sea or Gulf of Venice; and serious international difficulties resulted in former times with respect to the formalities and martime honors required by these States, and the neglect or refusal of others to observe or render them. But these peculiar formalities, formerly required by particular States, in particular places where their dominion was disputed, are now either entirely suppressed, or modified and regulated by treaty stipulations.2

INee cho vi, § 19.

Phillimore, Int. Law, vol. ii, § 34; Schlegel, Staats-Recht des K. D., Th. i. p. 412; Martens, Nouveau Recucil, t. viii, p. 72; Ortolan, Dip. de la Mer, liv. ii, ch. xv.; Chitty, Commercial Law, vol. ii, p. 324; Heffter, Droit International, §§ 32, 197; De Cussy, Droit Maritime, liv. i, tit. ii, § 61, liv. ii, ch. xxix; Garden, De la Diplomatie, liv. iii, § 2. Examples of certain States having prescribed rules of navigation to other States may de found in ancient history. The City of Tyre claimed the adjoining seas; the Romans gave directions to the Carthaginians; the Athenians prohibited the Median ships of war from entering their seas, and also dictated to the Lacedaemonians.

The dominion was claimed by Great Britain over the British Seas, that is, not only over the Channel, but over the four seas; the extent of this jurisdiction is mentioned in a treaty made with the Dutch in 1653, and in a subsequent treaty, five years later, the dominion is defined to be from Cape Finisterre to the middle point of the land Van Staten, in Norway. From the case of the Queen and Sir John Constable (H. 29 Eliz. B. R., Leonard, part 3, 72), it appears that before the Union the British dominion on the sea was claimed, not only midway to, but as far as, the coasts of France, and that it extended midways to the coast of Spain.

In the third year of Henry V it was directed by proclamation of the king that no British subject, for one year from the date thereof, was to go to the insular ports of Den mark and Norway or to Iceland for the purpose of fishing or for any other cause to the prejudice of those realms, otherwise than it had been accustomed of old.

In the reign of Edward I. one, Reyner Grimbald, a French admiral, was ordered by a mixed tribunal of judges (chosen by the English and French kings for the purpose of administering justice secundum legem mercatoriam et forman sufferantiae to all merchants) to make satisfaction and suffer punishment because, during war between Philip, King of France, and Guy, Earl of Flanders, he had despoiled Flemish and English merchants of their goods on the English seas. These judges, together with the procurators of the Genoese, the Catalonians, the Spaniards, the Germans, the Zealanders, the Dutch, the Danes, the Norwegians, and most of the maritime nations of Europe, jointly declared

Page 167, § 13.-National territory consists of water as well as land. Maritime territory 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. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other State. Bynkershoek says: 'Hinc videas priscos juris magistros, qui dominium in mare proximum ausi sunt agnoscere, in regundis ejus finibus admodum vagari incertos. Quare omnino videtur rectius, eo potestatem terrae extendi, quousque tormenta exploduntur; eatenus quippe cum 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.' Following this principle the general usage of nations superadds to the maritime territory an exclusive territorial jurisdiction over the sea for the distance of one marine league, or the range of a cannon-shot (as above mentioned), along all the shores or coasts of the State. The maxim of law on

"that the kings of England, by right of the said kingdom from time to time, whereof there is no memorial to the contrary, have been in peaceful possession of the Sovereign Lordship of the seas of England and of the isles within the same, with power of making and establishing laws, statutes, and prohibitions of arms, and of ships otherwise furnished than merchantmen used to be, and of taking surety, and affording safeguard in all cases where need shall require, and of ordering all things necessary for the maintaining of peace, right, and equity among all manner of people, as well of other dominions as their own, passing through the said seas, and the sovereign guard thereof." It is to be observed that Edward I. did not possess Normandy, and therefore the dominion of the British seas could not have been claimed by him as dominus utriusque ripae; this argues in favor of the British seas being annexed to the Kingdom of England by prescription.— Rolles Abridgment, 528; and see Selden, De Dom. Maris, 1, 2, c. 14, 27, 28; Coke, 4 Inst., 142.

Again, it is enacted, by 5 Edward IV, cap. 6 (1465), that no foreigners may fish "in Irish countries," i e., off the coast of Ireland, without a license from the Lieutenant of Ireland, upon pain of forfeiture of the ships and goods to the king.

The dominion of the sea was held to confer on its possessor the sole right of fishing for pearl, coral, etc., all royal fish, and also the direction and disposal of all other fish. (Palatius, De Dom. Mar., lib. i. c. ii; Sir J. Constable's case, supra.) Such as were born on the four seas of England were accounted British subjects, and not aliens (Selden, Mar. Claus. lib. ii. c. 24; Coke, 4 Inst. fol. 142).

Queen Elizabeth, in 1600, stamped a portcullis on those dollars destined for the East Indian trade, to signify the right of closing navigation in her seas.

The Captain of the Gulf of Venice resided on the Isle of Corfu, and with ships of war and galleys protected the navigation and kept it free from pirates. In particular, no vessels of the Pope, of the King of Spain, or of the Sultan of Turkey, could enter the gulf without the license of the State. In 1638 a Turkish fleet was attacked by the Venetians, and many of their ships were sunk, for a disregard of this requirement. (See Baptista Nani, Hist. of Venice, lib. ii. fol. 446 et seq.). So jealous were the Venetians of permitting ships of any other State to navigate the gulf, which they deemed part of their domain, that in 1630 they refused to permit the Queen Mary, sister of the King of Spain, and married to the King of Hungary, to sail from Naples to Trieste in vessels of the Spanish navy, but required her to embark in Venetian galleys, declaring that, if she proceeded in any other way, the Republic would by force assert their proper rights to attack the Spanish navy as if they were enemies, and in a hostile manner invade them. The queen was subsequently carried in the Venetian vessels with great courtesy and ceremony. (Palatius, De Dom. Mar. ii. c. 6; also Paucius, De Dom. Mar. Adriat.)