CHAP. Measures to prevent smuggling Greater difficulty is experienced in determining whether in time of peace a nation may, without claim of actual territorial sovereignty, extend its jurisdiction beyond the three-mile limit in the interest of facilitating the execution of its municipal laws.1 Precedents for such an extension of jurisdiction exist in the British Hovering Acts of 1736 and 1784, subsequently repealed, which, with the object of preventing smuggling, forbade the transhipment of foreign goods within four leagues of the coast. In 1799 Congress passed an act, the appropriate sections of which were superseded in 1922, directing officers of United States revenue cutters to board vessels arriving within four leagues of the coast, and to visit and search them to determine the character of their cargo. It was further provided that if any part of the cargo should be unladen within four leagues of the coast or transferred to another vessel without a permit, the masters of the respective vessels should be guilty of a penal offense. Since the act of 1799 refrained from authorizing the seizure of the vessel while still beyond the three-mile limit, the question of a right of seizure was not put at issue. Two early cases are quoted as affirming and denying respectively the existence of such a right. In the case of Church v. Hubbart," the Supreme Court of the United States was unwilling to pronounce void the seizure for illicit trade of an American trader by a Portuguese cruiser at four leagues from the coast of Brazil, holding that a state's "power to secure itself from injury may certainly be exercised beyond the limits of its territory." But in the later case of Rose v. Himley, the same court held that the seizure under municipal law of an American vessel by a French privateer hevond the limits of the territorial jurisdiction for illicit trade with rebels was not warranted by the law aiding the Cuban revolutionists. The United States, influenced doubtless by the cruel fate of the expedition, refused to admit the necessity of self-protection as justifying the seizure; but Great Britain did not question it. See above, p. 144. Such jurisdiction is to be distinguished from the "hot pursuit" of a vessel which has committed an offense within territorial waters and is forthwith pursued upon the high seas and there captured. The right of such hot pursuit appears to be an accepted extension of national jurisdiction. See Hall, Int. Law, § 80. Rev. Stat., § 2760, 2867, 2868. U. S. Comp. Stat., §§ 84591⁄2 b (52), 5555, 5556. The acquiescence of foreign powers in the enforcement of hovering laws has generally been put down by writers to "comity" as distinct from law, and this was the position taken by Secretary Fish in 1873. Oppenheim holds that such measures had, by long usage, received the sanction of customary law. Int. Law, I, § 190. XV of nations.1 The circumstances of the latter case gave it at the CHAP. time the more conclusive character, and it was supported by the subsequent attitude of the Department of State.2 Issues raised The question of a more extended protective jurisdiction not involving territorial sovereignty was raised in concrete form in by the Eighteenth 1920 when the United States Government found itself in the Amendment presence of a formidable "rum-fleet" which stationed itself outside the three-mile limit and delivered its forbidden wares to swift motor-boats which put out from the shore. That the operations of the "rum-fleet" were a serious impediment to the administration of domestic law was not questioned. The Department of State did not consider, however, that the urgency of self-protection warranted the United States in setting aside upon its own motion what was believed to be the established rule of international law.3 Accordingly, in order to permit action to be taken upon a legal basis, on June 26, 1922, the Department of State proposed to the British Government that a treaty be entered into between the two states providing for a mutual right of search within a limit of twelve miles of vessels flying the flag of the other state. The proposal was, however, declined by a note of October 13, 1922, in which it was stated that his Majesty's Government had "consistently opposed any extension of the limit of territorial waters." Negotiations were reopened in 1923, when the United States pro "It is conceded," said the court, "that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens. It is not easy to conceive a power to execute a municipal law, or to enforce obedience to that law without the circle in which that law operates. A power to seize for the infraction of a law is derived from the sovereign, and must be exercised, it would seem, within those limits which circumscribe the sovereign power. The rights of war may be exercised on the high seas, because war is carried on upon the high seas; but the pacific rights of sovereignty must be exercised within the territory of the sovereign. If these propositions be true, a seizure of a person not a subject, or of a vessel not belonging to a subject, made on the high seas for the breach of a municipal regulation, is an act which the sovereign cannot authorize."' It is little more than an academic question whether Rose v. Himley was overruled by Hudson v. Guestier, 6 Cranch, 281 (1810), Scott, Cases, 365, as was held by Chief Justice Marshall in a dissenting opinion. The consistent position of the United States Department of State may be found in Moore, Digest, I, §§ 145-151. See also Woolsey's Memorandum, Foreign Relations, 1912, pp. 1289 ff., where the conflicting decisions of municipal and international arbitration courts are given. This statement of the attitude of the Department of State is inferred from the conduct pursued. Some confusion apparently existed in Great Britain as to whether the American proposal called for a twelve-mile territorial limit or merely a right of seizure within twelve miles. See text of the British note cited. (New York Times, October 17, 1922.) It should be observed further that there is a practical as well as a legal distinction between a general exercise of jurisdic CHAP. g. Bays and gulfs posed to forego the right to seize intoxicating liquors on board British vessels in port in return for the concession desired.1 3 In the meantime other departments of the United States Government took independent action. In the case of the Grace and Ruby, decided in 1922, the terms of an act of 1884 forbidding transshipment of cargoes by night were held to warrant seizure of a British vessel beyond the three-mile limit on the ground that the participation by the crew in the act of conveying the goods within the United States amounted to a constructive presence of the vessel within the territorial jurisdiction. Further by the tariff act of 1922 provision was made that if the master of a vessel, without a permit, should permit the unlading of goods from a vessel, whether or not bound to the United States, within four leagues of the coast, not merely the goods but the vessel itself should be liable to forfeiture. Such an act must necessarily, as a matter of domestic law, take precedence of the rule, if any, of international law, and it remains an open question whether foreign governments will acquiesce in acts of seizure by the United States Government, should the latter undertake to enforce the law." Thus far the maritime boundary has been considered as following the sinuosities of the coast at a uniform distance from the shore. tion beyond the three-mile limit and a special exercise of jurisdiction over vessels which, from without the three-mile limit, are engaged in acts which have their immediate effect within the three-mile limit. 1 On Jan. 23, 1924, a treaty was signed between the United States and Great Britain which provides that, without departing from the principle that three miles from low-water mark constitute the proper limits of territorial waters, the United States may search and seize British vessels attempting to commit offenses against its liquor laws within the distance from the coast that may be traversed in one hour by the vessel suspected of endeavoring to commit the offense. In return for this concession the United States agrees to refrain from enforcing its liquor laws against British vessels in port, provided the intoxicating liquors are kept under seal while the vessel is within territorial waters. New York Times, Jan. 24, 1924, p. 10. 283 Fed. Rep., 475. The case is now (1923) pending appeal to the Supreme Court. For comment upon the case, see Harvard Law Rev., XXXVI, 609. 4 Act of September 21, 1922, § 586. By a ruling of the Treasury Department foreign vessels are not to be seized unless their small boats assist in carrying the contraband across the line. In the case of the Tomako, forcibly seized on November 26, 1923, justification for the seizure was offered on the ground that the vessel had previously been in illegal contact with the shore. This would appear to be little more than an extension of the doctrine of "hot pursuit, by which vessels committing an offense within territorial waters may be pursued beyond the territorial jurisdiction provided the pursuit is begun immediately upon the commission of the offense. See, however, the case of the Henry L. Marshall, 292 Fed. Cas. 487, where the vessel was captured outside the three-mile limit while delivering its cargo by prearrangement to small boats belonging to others. XV The delimitation of the boundary becomes more difficult, and in CHAP. certain places is still a matter of controversy, when bays, gulfs, and other indentations in the coast-line are met with. That the maritime boundary in such cases should not have been readily determinable was a natural result of complex geographical and economic conditions. The logical application of the rule of the marine league would have left within the territorial jurisdiction of the state all bays and gulfs inside of a line drawn from shore to shore at points six miles apart, since such a line could not be crossed by the maritime boundary without bringing it within less than three miles of the coast on either side. On the other hand, certain bays, considerably wider than six miles at their entrance, were of such a configuration, deep out of all proportion to their width, as to bring them naturally under the control of the state in possession of the territory on both sides of the bay. In consequence a number of states have laid special claim to complete territorial jurisdiction over certain of their bays and gulfs of this character, and it would seem that their claims have obtained legal validity by reason of the long-continued acquiescence of other states. Each case must be judged on its merits, and no general rule can be laid down other than the rule that if the bay exceeds six miles in width a special prescriptive title must be advanced to bring it within the territorial jurisdiction of the state. The Delaware and Chesapeake Bays, the one ten, the other nine and one half miles wide at its entrance, are by prescriptive right within the exclusive territorial jurisdiction of the United States. In 1793 the attorney-general rendered an opinion that in consequence of the proprietorship of the United States of the lands on both sides of the Delaware the bay was territorial, so that the capture of the British ship Grange by a French man-of-war within the waters of the bay was a violation of the neutrality of the United States.1 A corresponding decision in respect to the Chesapeake Bay was rendered in 1885 by the Court of Commissioners of Alabama Claims. In the case of the Alleganean, a vessel which had been captured in 1862 within the waters of the Chesapeake Bay by officers of the Confederate navy, the Commissioners held that the capture was not within the terms of an Act of Congress which directed the examination of claims resulting from damage done on the "high seas." 1See Moore, Digest, I, § 153. 'See Moore, Arbitrations, IV, 4332. 2 Prescrip tive rights to terri torial bays CHAP. XV Conventional agreements Similar claims, legal by prescription, with respect to Conception Bay in Newfoundland, were advanced by the British Privy Council in a suit brought in 1877 by the Direct United States Cable Company against the Anglo-American Telegraph Company. In the case of Mortensen v. Peters, the master of a Norwegian vessel was convicted for acts in violation of municipal law committed in Moray Firth outside the three-mile limit. In this instance the bay was seventy-four and one half miles wide between the designated headlands, but the court had no alternative other than to follow an Act of Parliament assuming territorial sovereignty over the firth. Norway protested against the arrest of its citizens upon the high seas; whereupon the British Foreign Office released the prisoners and interpreted the Act of Parliament as applying only to British subjects.3 A number of treaties have been entered into prescribing the extent to which bays may be claimed as territorial waters. An AngloFrench fishery treaty of 1867 reserved exclusive fishing rights in bays the entrance of which was not more than ten miles in width.* In 1882 a general convention, concluded at the Hague between the six interested powers, adopted the same rule with respect to exclusive fishing rights in the bays along the coasts of the North Sea." A treaty between Spain and Portugal in 1885 fixed upon twelve miles as marking the area of exclusive rights, while a treaty of 1907 between Russia and Japan adopted the rule of reserving rights in certain bays whose depth was three times as great as their width at entrance. There is obvious need for further legislation by general international convention. The Institute of International Law, consistently with its recommendation in the case of the marine league, suggested in 1894 the adoption of a general twelve-mile entrance rule, but allowed for exceptions in cases where longcontinued usage had sanctioned more extensive claims. 'L. R. 2 App. Cases, 394. Snow, Cases, 45; Moore, Digest, I, 740. 14 Scots L. T. R., 227 (1906). Am. Journal, I (1907), 526; Evans, Cases, 29, 151. a With these instances of prescriptive rights to bays must be included the exclusive sovereignty exercised by Japan over the Inland Sea of Japan. The claim of Canada to consider Hudson Bay as a territorial sea rests upon more doubtful, if not actually invalid, grounds. See T. W. Balch, "Is Hudson Bay a Closed or an Open Sea?" Am. Journal, VI (1912), 409-459. For general comment, see Sir C. Hurst, "The Territoriality of Bays," British Year Book, 1922-23, p. 42. Martens, Nouv. Rec. Gen., XX, 466. Ibid., 2nd ser., IX, 556. Ibid., XIV, 77. Am. Journal, II, Supp., 274. Art. 3. Resolutions, 113. |