Great Britain as to the northeastern fisheries. From the time when European fishermen first visited the great fisheries of the northeastern Atlantic these fisheries, subject to the territorial jurisdiction above stated, have been held open to all nations, and even over the marine belt of three miles the jurisdiction of the sovereign of the shore is qualified by those modifications which the law of necessity has wrought into international law. Fishing boats or other vessels traversing those rough waters, have the right, not merely of free transit of which I have spoken, but of relief, when suffering from want of necessaries, from the shore. There they may go by the law of nations, irrespective of treaty, when suffering from want of water or of food or even of bait, when essential to the pursuit of a trade which is as precarious and as beset with disasters as it is beneficent to the population to whom it supplies a cheap and nutritious food."

Mr. Bayard, Sec. of State, to Mr. Manning, Sec. of Treasury, May 28, 1886.
MSS. Dom. Let.

The limitation to three miles of the marine belt on the northeast Atlantic is based in part on treaty and in part on customary law there established as to the fisheries. It does not of itself preclude, as has been already seen, the sovereign of the shore from exercising police jurisdiction over any destructive agencies which, no matter at what distance from the shore, may inflict direct injury on the shore, or its territorial waters. Supra, §§ 18, ff, 27; see infra, § 303.

As to bays see supra § 28.

"The British "hovering act,' passed in 1736 (9 Geo. II, cap. 35), assumes, for certain revenue purposes, a jurisdiction of four 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."

Mr. Wheaton in Dana's Wheaton, § 179.

In a note to the above, entitled "Municipal seizures beyond the marine league or cannon-shot," Mr. Dana says:

"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 authority. 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 cargo within 4 leagues from 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 four 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 prob ably 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 pages 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 v. 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 prosecution 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 v. 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; assuming, 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, and was made within a league of the French coast, the majority of the court held that the jurisdiction to make a decree of forfeiture was not lost by the fact that the vessel was never taken into a French port, if possession of her was retained, though in a foreign port. The judg ment being set aside and a new trial ordered, the case came up again, and is reported in Cranch, vi, 281. At the new trial the place of seizure was disputed; and the judge instructed the jury, that a municipal seizure, made within six leagues of the French coast, was valid, and gave a good title to the defendant. The jury found a general verdict for the defendant, and exceptions were taken to the instructions. The Supreme Court sustained the verdict; not, however, upon the ground that a municipal seizure made at six leagues from the coast was valid, but on the ground that the French decree of condemnation must be considered as settling the facts involved; and if a seizure within a less distance from shore was necessary to jurisdiction, the decree may have determined the fact accordingly, and the verdict in the circuit court did not disclose the opinion of the jury on that point. The judges differed in stating the principle of this case and of Rose v. Himely, and the report leaves the difference somewhat obscure.

"This subject was discussed incidentally in the case of the Cagliari, which was a seizure on the high seas, not for violation of revenue laws, but on a claim, somewhat mixed, of piracy and war. In the opinion given by Dr. Twiss to the Sardinian Government in that case, the learned writer refers to what has sometimes been treated as an exceptional right of search and seizure, for revenue purposes, beyond the marine league, and says that no such exception can be sustained as a right. He adds: In ordinary cases, indeed, where a merchant ship has been seized on the high seas, the sovereign whose flag has been violated waives his privilege, considering the offending ship to have acted with mala fides towards the other state with which he is in amity, and to have consequently forfeited any just claim to his protection.' He considers the revenue regulations of many states, authorizing visit and seizure beyond their waters, to be enforceable at the peril of such states, and to rest on the express or tacit permission of the states whose vessels may be seized.

"It may be said that the principle is settled that municipal seizures cannot be made, for any purpose, beyond territorial waters. It is also settled that the limit of these waters is, in the absence of treaty, the marine league or the cannon-shot."

But there can be no question, as has been said, that there may be municipal seizures of United States vessels, under the United States revenue laws, outside of the three-mile limit.

Russia having asserted, in 1822-24, an exclusive jurisdiction over the northwest coast and waters of America from Behring Strait to the fifty-first degree of north latitude, this claim was resisted by the United States and Great Britain, and was surrendered, in a convention between Russia and the United States, in April, 1824, for ten years (not sub

sequently technically renewed), and in a convention between Great Britain and Russia, in February, 1825, for ten years, re-established by the treaty of June 11, 1843. The Russian claim was disputed by Mr. J. Q. Adams in his note to the Russian minister, of March 30, 1822.

(See 64 An. Reg., 576-84; Brit. and For. St. Pap., 1824-25, vol. 12, pp. 38, 595; Abdy's Kent (1878), 97.)

As to the pretensions of Russia, above stated, to control the northwest Pacific, from Behring Strait to the fifty-fourth degree of latitude, and of the adjacent islands, see Calvo Droit Int., 3d ed., vol. 3, 323.

The ukase of Emperor Alexander of Russia, of September, 1821, claiming the waters on the northwestern coast of America to the extent of one hundred Italian miles from shore, is discussed in 2 Lyman's Diplomacy of the United States, chap. xi.

This ukase was the cause of long discussions between Russia, the United States, and Great Britain; discussions which terminated in a treaty between the United States and Russia, signed April 17, 1824, and ratified January 11, 1825. This treaty (now superseded in this respect) contains the following provisions:

ARTICLE I.

It is agreed that, in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the high contracting Powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles.

ARTICLE II.

With a view of preventing the rights of navigation and of fishing exercised upon the Great Ocean by the citizens and subjects of the high contracting Powers from becoming the pretext for an illicit trade, it is agreed that the citizens of the United States shall not resort to any point where there is a Russian establishment, without the permission of the governor or commander; and that, reciprocally, the subjects of Russia shall not resort, without permission, to any establishment of the United States upon the Northwest coast.

ARTICLE III.

It is moreover agreed that, hereafter, there shall not be formed by the citizens of the United States, or under the authority of the said States, any establishment upon the Northwest coast of America, nor in any of the islands adjacent, to the north of fifty-four degrees and forty minutes of north latitude; and that, in the same manner, there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel.

ARTICLE IV.

It is, nevertheless, understood that during a term of ten years, counting from the signature of the present convention, the ships of both Powers, or which belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks, upon the coast mentioned in the preceding article, for the purpose of fishing and trading with the natives of the country.

ARTICLE V.

All spirituous liquors, fire-arms, other arms, powder, and munitions of war of every kind, are always excepted from this same commerce permitted by the preceding article; and the two Powers engage, reciprocally, neither to sell, nor suffer them to be sold, to the natives by their respective citizeus and subjects, nor by any person who may be under their authority. It is likewise stipulated that this restriction shall never afford a pretext, nor be advanced, in any case, to authorize either search or detention of the vessels, seizure of the merchandize, or, in fine, any measures of constraint whatever towards the merchants or the crews who may carry on this commerce; the high contracting Powers reciprocally reserving to themselves to determine upon the penalties to be incurred, and to inflict the punishments in case of the contravention of this article by their respective citizens or subjects.

"This treaty excluded the right of the United States to make new settlements on the northwest shore of America, and the adjacent islands north of 54 degrees 40 minutes of latitude, and of Russia to make settlements south of that line. An analogous treaty was concluded in the same year between Great Britain and Russia. By these treaties the free navigation of the Pacific was recognized. As to new settlements, they bound only the contracting parties."

Fiore, Droit Int. 2d ed. by Antoine, 1885, § 726.

The territorial authority of a nation extends over the continguous seas, certainly within the range of cannon-shot, and perhaps further, according to the nature of the coast.

Church v. Hubbart, 2 Cranch, 187, 235. (See the Ann, 1 Gall., 62.)

There is no fixed rule prescribing the distance from the coast within which a nation can make seizures to prevent the violation of its laws. Church v. Hubbart, 2 Cranch, 187, 235.

"The territorial jurisdiction of a nation over waters within its jurisdiction, and within the three-mile zone of the shore, does not extend to vessels, using the ocean as a highway and not bound to a port of the nation. And a vessel may pass, in its voyage along the shore of another nation, without subjecting itself to the law of the littoral sovereign, and retain all the rights given by the law of its flag. This authority or claim of jurisdiction over the ocean within the three-mile zone of the coast is said and shown by Lord Chief-Justice Cockburn to be a shrinkage of the claim of jurisdiction over the mare clausum, which was never acknowledged, and is now abandoned, and to exist only for the protec tion and defense of the coast and its inhabitants. Mr. Webster, in his tetter to Lord Ashburton, quoted in Wheaton's Law of Nations, infra, $38, says: A vessel on the high seas, beyond the distance of a marine league from the shore, is regarded as part of the territory of the nation to which she belongs, and subjected, exclusively, to the jurisdiction of that nation. If against the will of her master or owner she be driven or carried nearer to the land, or even into port, those who have, or ought to have control over her, struggling all the while to keep her upon the high seas,' she remains within the exclusive jurisdiction of her Government.' This was written in the case of the Creole, an American vessel, carried into Nassau by persons who had been slaves in Virginia. The same reason which governs in the case of a vessel driven by weather or by S. Mis. 162-VOL. I-- -8

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