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waters, for it fills one of the gaps left in the protection of the national rights by the fact that these waters are not part of the realm. Breaches of revenue and fishery laws are more often than not committed in shore by small boats, the ship herself lying off in the territorial waters. In such a case, the seizure of the ship would undoubtedly be justified on the ground that the boats are the dependencies of ship, and that therefore she is herself constructively guilty of having committed the offence.

The territorial waters have been specially referred to, as the question has a practical bearing on what may be called the legal status of these waters. But the rule here suggested is obviously not limited to them; the ship's boats may themselves be operating in territorial waters, and the ship lying some miles out to sea.

There seems, however, to be one manifest condition attached to such a seizure: that there should be some overt act of the ship in relation to the offence, showing her participation in it: thus, that she was superintending the operations of her boats, and was, in fact, their base or point d'appui.

Active participation in the offence is probably the essential to seizure, and not the mere fact that the boats belong to the ship. Suppose, for example, boats belonging to a vessel had been seized for sealing in Dominion waters, the ship herself being at the time twenty miles away fishing on her own account. The seizure of the ship by a cruiser, in consequence of information by telegraphy that her boats had been captured, could scarcely be justified. This brings us back to the simple case with which we started. The case is in fact a corollary of what has gone before. Certain conditions being fulfilled in regard to her relation to her boats, a vessel not actually in the waters is regarded as constructively within those limits: then the law as to seizure of vessels for offences committed within those limits must apply: that is to say, she may be seized at once, or she may be pursued on to the high sea.

We also have the high authority of Justice Story, voicing what appears to have been the unanimous opinion of the Supreme Court in the case of the Marianna Flora (1826, 11 Wheaton, p. 1), to the effect that "American ships, offending against our own laws, may be seized upon the ocean, and foreign ships, thus offending within our territorial jurisdiction may be pursued and seized upon the ocean, and brought into our ports for adjudication"; and "where an aggression was committed by a foreign armed merchant vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued, upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages, for subduing, seizing and bringing into a port of this country for adjudication, the offending vessel."'8

8 These citations are from the head-notes to this case.

But there are a number of authorities who disapprove of the doctrine of "hot pursuit" on the high seas.

Thus, in a note to Wheaton on "Municipal Seizures Beyond the Marine League" (8th ed., No. 108, p. 260) Dana concludes: "It may be said that the principle is settled, that municipal seizures cannot be made, for any purpose, beyond territorial waters."

Field also lays it down as a rule of international law that "an inmate of a foreign ship who commits an infraction of the criminal law of a nation within its territory cannot be pursued beyond its territory into any port of the high seas."

In the discussion of the Hovering Acts, Phillimore remarks:

Nevertheless, it cannot be maintained as a sound proposition of international law that a seizure for purposes of enforcing municipal law can be lawfully made beyond the limits of the territorial waters, though in these hovering cases judgments have been given in favour of seizures made within a limit fixed by municipal law, but exceeding that which has been agreed upon by international law. Such a judgment, however, could not have been sustained if the foreign state whose subject's property had been seized had thought proper to interfere. Unless, indeed, perhaps, in a particular case, where a state had put in force, or at least enacted, a municipal law of its own, like that of the foreign state under which its subject's property had been seized. It is at least quite intelligible why such a state would not interfere on behalf of its subject. My observation does not deny to the neutral, in time of war, the right to complain of and possibly to prevent the hovering of belligerent ships so near her coasts and ports as manifestly to menace and alarm vessels homeward or outward bound. . . .10

And similarly Twiss strongly disapproves of the exercise for any reason whatever of national maritime jurisdiction beyond the marine league.11

This negative view appears also at first sight to be supported by the great judicial authority of Chief Justice Marshall. In Rose v. Himely (1808, 4 Cranch, 241) C. J. Marshall, supported by the majority of his associates of the Supreme Court, held that "a seizure beyond the limits of the territorial jurisdiction for breach of munici pal regulations, is not warranted by the law of nations." It has been claimed (Taylor, § 248) that Rose v. Himely was overruled by Hudson v. Guestier (1810, 6 Cranch, 281). This was the opinion of Chief Justice Marshall himself, but the report of the latter case leaves this • International Code, 2d ed., art. 626, pp. 426-7. 10 Commentaries, 3d ed., Vol. I, p. 276.

11 Law of Nations . in Time of Peace, § 190.

point doubtful.12 Rose v. Himely is certainly in conflict with certain views previously expressed by Marshall in Church v. Hubbart (1804, 2 Cranch, 187, and Scott's Cases, 343). But the real purport of the latter decision was that "the court did not undertake to pronounce judicially, in a suit on a private contract (a policy of insurance) that a seizure of an American vessel made at four leagues, by a foreign power, was void."

There is at least one famous case in which, it was claimed, the pursuit was continued and capture made in territorial waters.

In 1891, the Itata, an armed transport in the service of Chilean insurgents, was accused of violating the neutrality laws of the United States. According to one version, she was pursued by American naval forces from San Diego, California, to Iquique, Chile, where she was surrendered to Admiral McCann under duress, 13 but without resistance. Assuming the facts to be as stated, the majority of the commissioners appointed to adjust claims between the United States and Chile, according to the convention of August 2, 1892, declared: "After an examination of many authorities on international law and numerous decisions of courts, we are of opinion that the United States committed an act for which they are liable in damages and for which they should be held to answer. But it appears that this decision was made on the basis of a demurrer on the part of the United States, and the facts were that the Itata was never pursued into Chilean waters and that her surrender on the part of the Chilean authorities was voluntary.15

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Thus it will be seen that the authorities are divided on the question as to the validity of "hot pursuit" on the high seas, although it must be admitted that the weight of authority favors the doctrine and that the practice has the sanction of at least Anglo-American custom.

Of course, it is evident that the analogy between "hot pursuit' 12 See also Dana's note 108 to Wheaton, 8th ed., § 179, pp. 259-60, and I Moore, Digest, § 151, p. 729.

13 For this version of the facts of the case, see the South American Steamship Co. v. United States, in United States and Chilean Claims Commission, Vol. I, No. 18, passim. For the violations of neutrality of which the Itata had been guilty, see U. S. v. Trumbull (1891), 48 Fed. Rep. 99, and Scott, 731.

14 III Moore's International Arbitrations, p. 3070.

15 See United States and Chilean Claims Commission (1901), Decision No. 21, pp. 209 ff.

at sea and on land is very imperfect, since the high seas constitute an international highway and lie outside the jurisdiction of any single state. However, the provocation and the necessity of self-defence and protection may be even greater on land than at sea. In any case, there is ample precedent for the practice of "hot pursuit" in our past relations with Mexico.

AMOS S. HERSHEY.

CURRENT NOTES

THE LEAGUE OF NATIONS

ADDRESS OF PRESIDENT WILSON ON PRESENTING THE DRAFT OF THE COVENANT OF THE LEAGUE OF NATIONS TO THE THIRD PLENARY

SESSION OF PEACE CONFERENCE AT PARIS,1 FEBRUARY 14, 1918

MR. CHAIRMAN: I have the honor and I esteem it the very great privilege of reporting in the name of the commission constituted by this Conference on the formulation of a plan for the League of Nations. I am happy to say that it is a unanimous report, a unanimous report from the representatives of fourteen nations-the United States, Great Britain, France, Italy, Japan, Belgium, Brazil, China, Czecho-Slovakia, Greece, Poland, Portugal, Roumania, and Serbia. I think it will be serviccable and interesting if I, with your permission, read the document as the only report we have to make.

[President Wilson read the original draft as printed in the Supplement to this Journal, April, 1919, p. 113. During the reading, the President made the following oral explanatory interpolations.]

After the second paragraph of Article XV:

I pause to point out that a misconception might arise in connection with one of the sentences I have just read: "If any party shall refuse so to comply, the council shall propose the measures necessary to give effect to the recommendation." A case in point, a purely hypothetical case, is this: Suppose that there is in the possession of a particular Power a piece of territory or some other substantial thing in dispute to which it is claimed that it is not entitled. Suppose that the matter is submitted to the Executive Council for a recommendation as to the settlement of the dispute, diplomacy having failed; and suppose that the decision is in favor of the party which claims the subject-matter of dispute as against the party which has the subject-matter in dispute. Then, if the party in possession of the subject-matter in dispute merely sits still and does nothing, it has accepted the decision of the Council, in the sense that it makes no resistance; but something must be done to see that it surrenders the subject-matter in dispute. In such a case, the only case contemplated,

1 Addresses of President Wilson on First Trip to Europe. Washington: Government Printing Office. 1919. pp. 47 et seq.

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