and open to both parties. The second article stipulated for the free navigation of the Columbia River by the Hudson's Bay Company, and the British subjects trading with them, from the 49th degree of north latitude to the ocean. The third article provided that the possessory rights of the Hudson's Bay Company, and of all other British subjects, to the territory south of the parallel of the 49th degree of north latitude, should be respected. 104

territorial

§ 177. The maritime territory of every State extends Maritime to the ports, harbors, bays, mouths of rivers, and adjacent jurisdicparts of the sea inclosed by headlands, belonging to the tion. same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State.105 Within these limits, its rights of property and ter

[104 Guano Islands. In 1856, the United States adopted a general system respecting the discovery and use of guano islands, set forth in the Act of Congress, of 18th August, 1856. (U. S. Laws, xi. 119.) Its provisions are applicable only to " discoveries " that had been made or might thereafter be made, and "peaceful possession" taken, of "deposits of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government." It provides that citizens of the United States, discovering and taking peaceful possession of such deposits, shall be protected by the government in the use of the same for the purpose of removing guano; but it requires them to sell or ship the guano to citizens of the United States only, and at rates fixed by statute. It extends over these places the criminal and penal laws of the United States applicable to vessels of the United States at sea. It provides that nothing in the act shall be construed as obligatory on the United States to retain possession of such places after the guano shall have been removed. In fact, it secures to citizens the usufruct of unoccupied guano deposits which they have discovered and peacefully occupied, beyond the jurisdiction of any foreign State, upon certain terms as to the sale and exportation of the guano; and stipulates for nothing beyond the usufruct while the guano remains. Under this act, the United States had questions with Venezuela as to Aves Rock, and with Hayti as to Navaza, -islands lying off the coasts of those countries respectively. The former was settled by a payment of an indemnity by Venezuela. Ex. Doc. No. 25, 34th Cong. 3d Sess.; and No. 37, 36th Cong. 1st Sess.]-D.

[195 Territorial Waters. Grotius extends territorial rights over as much of the sea as can be defended from the shore. Lib. ii. cap. 3, §§ 13, 14. The argument is, that the limit of exclusive jurisdiction should be the limit of the power of regular and effective instruments of war, used on and from the lands and territorial possessions of a nation. Hautefeuille adheres to the rule of the cannon-shot; but contends, that, in case of small bays and gulfs, the line from which the cannon-shot should be measured is a line drawn from headland to headland. He does not, however, contend for such a line in case of bays so large as to be parts of a public. ocean. (Droits des Nat. Neutr. i. 89, 239.) Bynkershoek defines the limits thus: "Terræ potestas finitur, ubi

ritorial jurisdiction are absolute, and exclude those of every other nation. (a)

Extent of § 178. The term "coasts" includes the natural ap

the term coasts or shore.

pendages of the territory which rise out of the water, although these islands are not of sufficient firmness to be inhabited or fortified; but it does not properly comprehend all the shoals which form sunken continuations of the land perpetually covered with water. The rule of law on this subject is Terræ dominium finitur, ubi finitur armorum vis; and since the introduction of fire-arms, that distance has usually been recognized to be about three miles from the shore. (a) 106 In a case before

finitur armorum vis, . . . quousque tormenta exploduntur." De Dominio Maris, cap. 2. Of the same opinion are Vattel (liv. i. ch. 23, § 289), Azuni (t. i. cap. 2, § 14), Klüber (§ 130), and De Martens (Droit des Gens, § 40). Rayneval limits it to the horizon, — an impracticable test. (Instit. liv. ii. ch. 9, § 10.) Valin contends for a line beyond soundings, “ou ou l'on ne peut pas trouver le fond." (Comm. sur l'Ordonnance de 1681, liv. v. tit. 1.) But soundings are now had at great depths, and in many parts of midocean; and there are great irregularities in soundings, and differences in coasts in respect of shallowness. Ortolan treats this subject at great length, and comes to the conclusion that the limit (for which he adopts the phrase of Pinheiro Ferreira, ligne de respect) should be the extent to which projectiles of war can be effectively thrown from the shore, although that must be an advancing line in the improvements made by modern science. (Règl. Intern. i. ch. 8, p. 152–158, edit. of 1864.) Heffter (Europ. Völker. § 75) adopts the same reasoning, and considers the cannon-shot as the test; and that the treaties which fix upon three miles, and formerly fixed upon two miles, as the limits, are intended to define the range of artillery. See also Riquelme, Derecho Pub. Intern. i. 253. Jacobson's Sea Laws, 586-590. Tellegen, 50. Halleck's Intern. Law, 130. Emérigon, Des Assurances, ch. 12, § 19. De Cussy, Droit Marit. liv. i. tit. 2, § 40. Wildman's Intern. Law, i. 70. The treaties between England and the United States of 1818, and between England and France of 2d August, 1839, settle the limits of exclusive fishery at three marine miles. The English act, 1833, assumes the marine league as the limit of jurisdiction over the open sea.] — D.

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 3, § 10. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 8. De Dominio Maris, cap. 2. Vattel, liv. i. ch. 23, § 289. Valin, Comm. sur l'Ordonnance de la Marine, liv. v. tit. 1. Azuni, Diritto Marit, Pt. I. cap. 2, art. 3, § 15. Galiani, dei Doveri dei Principi Neutrali in Tempo di Guerra, liv. i. Life and Works of Sir L. Jenkins, vol. ii. 780.

(a) Unde dominium maris proximi non ultra concedimus, quàm e terrâ illi imperari potest, et tamen eò usque; nulla siquidem sit ratio, cur mare, quod in alicujus imperio est et potestate, minus ejusdem esse dicamus, quàm fossam in ejus territorio. Quare omnino videtur rectius, eò potestatem terræ extendi, quousque tormenta exploduntur, eatenus quippe cùm imperare, tum possidere videmur. Loquor autem de his temporibus, quibus illis machinis utimur: alioquin generaliter dicendum esset, potestatem terræ finiri, ubi finitur armorum vis; etenim hæc, ut diximus, possessionem tuetur." Bynkershoek, de Dominio Maris, cap. 2. Ortolan, Diplomatie de la Mer, liv. ii. ch. 8.

[106 See note No. 105, ante.]—D.

Sir W. Scott, (Lord Stowell,) respecting the legality of a capture alleged to be made within the neutral territory of the United States, at the mouth of the river Mississippi, a question arose as to what was 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 form a kind of portico to the main land. It was contended that these were not to be considered as any part of the American territory-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 argued that the line of territory was to be taken only from the Balize, which is a fort raised on made land by the former Spanish possessors. But the learned judge was of a different opinion, and determined that the protection of the territory was to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which, indeed, they were formed. Their elements were derived immediately from the territory; and, on the principle of alluvium and increment, on which so much is to be found in the books of law, Quod vis fluminis de tuo prædio detraxerit, et vicino prædio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Whether they were composed of earth or solid rock would not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil. (b)107

The King's Chambers.

§ 179. The exclusive territorial jurisdiction of the British crown over the inclosed parts of the sea along the coasts of the island of Great Britain, has immemorially extended to those bays called the King's Chambers; that is, portions of the sea cut off by lines drawn from one promontory to another. A similar jurisdiction is also asserted by the United States over the Delaware Bay, and other bays and estuaries forming portions of their territory. It appears from Sir Leoline Jenkins, that both in the reigns of James I. and Charles II. the security of British commerce was provided for, by express prohibitions against the

(b) Robinson's Adm. Rep. v. 385, (c,) The Anna.

[107 See also Halleck's Intern. Law, 130. Wildman's Intern. Law, i. 39. Ortolan, Domaine Intern. § 93. De Pistoye et Duverdy, Traité des Prises, tit. 2, ch. 1, § 1. Islands adjacent to the coast of the main land, though not formed from it by alluvium or increment, are considered as appurtenant, unless some other power has obtained title to them by some of the recognized modes of acquisition. Halleck's Intern. Law, 131. Ortolan, Regl. Intern. liv. ii. ch. 8.]—D.

roving or hovering of foreign ships of war so near the neutral coasts and harbors of Great Britain as to disturb or threaten vessels homeward or outward bound; and that captures by such foreign cruisers, even of their enemies' vessels, would be restored by the Court of Admiralty, if made within the King's Chambers. So, also, 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. (a) 108

Right of fishery.

§ 180. The right of fishing in the waters adjacent to the coasts of any nation, within its territorial limits, be

(a) Life and Works of Sir L. Jenkins, ii. 727, 728, 780. Opinion of the UnitedStates Attorney-General on the capture of the British ship Grange in the Delaware Bay, 1793. Waite's American State Papers, i. 75. Dodson's Adm. Reports, ii. 245. Le Louis, Cranch's Reports, ii. 187. Church v. Hubbard. Church v. Hubbard. Vattel, Droit des Gens, liv. i. ch. 22, § 281.

[128 Municipal Seizures beyond the Marine League or Cannon-shot. 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 territory. 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 four leagues of 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

longs exclusively to the subjects of the State. The exercise of this right, between France and Great Britain, was regulated by a Convention concluded between these two powers, in 1839; by the 9th article of which it is provided, that French subjects shall enjoy the exclusive right of fishing along the whole extent of the coasts of France, within the distance of three geographical miles from the shore, at low-water mark, and that British subjects shall enjoy the same exclusive right along the whole extent of the coasts

been boarded and seized on the high sea, and have been adjudged guilty, and their governments have not objected, it is probably 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