Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel. The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court Martial Orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such. Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General. The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948. RADM. G. L. RUSSELL, USN Judge Advocate General of the Navy CAPT. E. E. WOODS, USN Assistant Judge Advocate General of the Navy COMDR. T. F. RYAN, USNR Editor LT. W. A. SAVAGE, USN Associate Editor For sale by the Superintendent of Documents, U. S. Government Printing Office, Washington 25, D. C. Price 10 cents, $1.00 per year, $1.35 Foreign AUTHENTICATION IN OF DOCUMENTS By Cdr. D. W. Apps, USNR N courtmartial trials, proof of the commission of the offense very often requires resort to documentary evidence. Original documents on file in the several United States Government departments usually are not readily available, for several reasons not pertinent to this article. The judge advocate or recorder, therefore, must use copies of the originals. In many types of offenses, particularly those concerned with enlistments, pay and marriage, the use of copies is mandatory. Such documents, to be admissible in a court martial, must be duly authenticated in the manner provided by statute. If not duly authenticated, delay in the trial will result, and the requirement of prompt disciplinary action will not be maintained. The general statute governing the authentication of Government documents is quoted below:1 "Government records and papers; copies "(a) Books or records of account or minutes of Prior to 1 September 1948, the statute read as follows: 2 "Copies of department or corporation records and papers; admissibility; seal: (a) Copies of any books, records, papers, or other documents in any of the executive departments, or of any corporation all of the stock of which is beneficially owned by the United States, either directly or indirectly, shall be admitted in evidence equally with the originals thereof, when duly authenticated under the seal of such department or corporation, respectively. "(b) Books or records of account in whatever form, and minutes (or portions thereof) of proceedings, of any such executive department or corporation, or copies of such books, records, or minutes authenticated under the seal of such department or corporation, shall be admissible as evidence of any act, transaction, occurrence, or event as a memorandum of which such books, records, or minutes were kept or made. "(e) The seal of any such executive department or corporation shall be judicially noticed. (As amended June 19, 1934, c. 653, Sec. 6 (a), 48 Stat. 1109.)" This statute is discussed in Naval Courts and Boards, which of course should be read carefully by all judge advocates and recorders before starting the trial of a case. The identity of the accused with the person named in the document necessarily must be shown. Proof of this fact is facilitated by a photostatic copy, since a photograph of the original is the best evidence short of the original document itself, to help prove that the person who signed the enlistment agreement, or the receipt for pay, or the marriage application, is the accused. Service records usually contain signatures of the accused for comparison purposes. The Federal court rule may be examined with profit and is given below for easy reference: * "RULE 44. Proof of Official Record: (a) Authentication of Copy.-An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office. "(b) Proof of Lack of Record.-A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. "(c) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by any applicable statute or by the rules of evidence at common law." This rule, applicable to criminal trials as well as civil, indicates the necessity of having documentary evidence duly authenticated under seal by the Government official having custody of the original. The statute and rule quoted above simply mean that the Government official having custody of the original must certify over his signature, that the attached document is a true copy of the original in his custody and have the seal of his department affixed to the certification. Such a certification will be sufficient. The inferences from the authorities cited to this article are that a seal without a certification, or a certification without a seal, do not make the document admissible in evidence. The obtaining of duly authenticated copies of records, when needed, is the responsibility of commanding officers recommending personnel for general court martial. Such copies are obtained from the Government department concerned, viz: U. S. Navy Enlistments-Bureau of Naval Personnel, Washington, D. C. Pay-Bureau of Supplies and Accounts, Washington, D. C. Allotments-Chief of Field Branch, Bureau of Supplies and Accounts, Allotment Division, Cleveland 14, Ohio. U. S. Marine Corps Enlistments, pay and allotments-Commandant, U. S. Marine Corps, Washington, D. C. U. S. Army Enlistments-The Adjutant General, U. S. Army, Washington, D. C. Pay and Allotments-Chief of Finance, Army Accounting Division, Army Finance Center, Building 203, St. Louis 20, Missouri. U. S. Air Force Enlistments-Chief of Staff, U. S. Air Force, Washington, D. C. Pay and Allotments-Same as U. S. Army. A long citation of authorities in support of the rules governing proper authentication of documents is not desirable in view of the need for brevity in an article of this type. However, for the benefit of those who desire to visit a law library, when available, for additional research, reports of cases and leading articles are furnished.8 The treatment of the subject by the U. S. Army publication corresponding to Naval Courts and Boards is also given as a citation. The Army treatment will be of interest to Navy lawyers. For the proper presentation of evidence, the avoidance of an acquittal of a guilty person, sim THE plification of the problems of review, and above all, the dispatch for which naval justice is noted, a judge advocate or recorder will not fail in at least one important phase of his duties if he assures himself before trial that his documentary evidence is authenticated in accordance with the law. 128 U. S. Code, Sec. 1733 (formerly 28 U. S. Code 661), Public Law 773, 80th Cong., effective 1 September 1948, approved June 25, 1948. 228 U. S. Code 661 (repealed by Public Law 773, 80th Cong.). 3 Secs. 196 and 199, Naval Courts and Boards. Federal Rules of Civil Procedure, Rule 44, following 28 U. S. Code 723 (c), 1946 Edition, p. 3307. 5 Rules of Criminal Procedure, Rule 27, following 18 U. S. Code 687, 1946 Edition, p. 1973. 6 Wynne v. United States (1910), 217 U. S. 234, 54 Law Ed. 748. U. S. Navy Regulations, Arts. 197 (1), 200; Sec. 344, Naval Courts and Boards; see also, JAG Journal for October 1948, p. 3. 8 Wynne v. U. S. (Ante); Fakouri v. Codais (C. C. A. La. 1945), 147 Fed. 2nd 667; C. M. O. 5-1937, P. 8 (Vol. 2, Compilation of Court Martial Orders, p. 2128-2129); New Mexico v. Texas (1927), 275 U. S. 279, 72 Law Ed. 280; U. S. v. Bass (C. C. A. Ind. 1933), 64 Fed. 2nd 467; Arnold v. Thompson & Spear Co. (Ct. of Appls. D. C .1922), 279 Fed. 307; Cassarello v. U. S. (1919-Dist. Ct. Pa.), 271 Fed. 486, affirmed 1922 (C. C. A. 279 Fed. 396; Cohn v. U. S. (C. C. A. N. Y. 1919), 258 Fed. 355; Corpus Juris Secundum, Evidence- -Sections 626-675; Wigmore on Evidence, Sec. 2161 et seq.; The Chamberlayne Trial Evidence (Tompkins 1936 Ed.), page 1056. Cross-references: (1946) 46 Columbia Law Review 267, on rule 43 (a); (1941) 55 Harvard Law Review 197, on rule 43 (a). "A Manual for Courts Martial, U. S. Army, 1928 (Corrected to April 20, 1943), Secs. 116-119. THE THREE-MILE LIMIT-I By Ledr. Emory C. Smith, U. S. N. HE development of weapons of modern warfare has caused many students of international affairs to wonder whether or not the 3-mile limit of territorial waters affords sufficient protection to the United States. This is the first of two articles discussing a brief history of the 3-mile limit, and what appear to be exceptions to the American doctrine which recognizes the 3-mile limit as a rule of international law. The second article, which will appear in an early issue of the JAG JOURNAL, will discuss the right of self-defense beyond the 3-mile limit as well as recent developments pertaining to the control of the air space reservations. Few topics have provoked more controversy or elicited more divergent views and opinions than that of the extent of territorial waters. The practice of nations viewed over a period of 200 years ranges from one extreme to the other. It is possi ble to take any of several positions relative to the extent of a territorial sea or relative to the nature of the jurisdiction therein, and to support each by the authority of text writers and numerous illustrations drawn from international events, ancient and modern. It is felt that the greater part of the disagreement as to the extent of territorial waters is basically due to the concept of jurisdiction. Having recognized this reason for the disagreement we may make a useful distinction between claims to territorial waters and claims of jurisdiction or control upon the high seas, to explain the apparent disagreements pertaining to the question. This idea is corroborated by Prof. Hyde in his treatise on International Law, who states in substance that there is a real distinction between a right of sovereignty over a particular area and a right to exercise a preventive or protective juris diction over or within an area that is outside of the national domain. This basic distinction between sovereignty and preventive or protective jurisdiction must be kept firmly in mind in order to rationalize the varying degrees of authority which a nation may exercise over the sea. To discuss at any length the 3-mile limit would be an academic, time-consuming and unnecessary discourse. Suffice it to say, however, that there exists a preponderance of opinion among the authorities that the 3-mile limit for the marginal sea stands today as a rule of international law. Furthermore, the authorities are practically unanimous in the opinion that within 3 miles of the coast a State may, under international law, exercise any jurisdiction and do any act which it may lawfully do upon its own land territory. In short, a State has sovereignty over waters lying within 3 miles of its coast. While there are some nations which claim jurisdiction over waters more than 3 miles from its coast, the United States has long been a champion of the 3-mile limit. The first view of our Government as to the territorial limits at sea seems to have been made in a report of a congressional committee, submitted on January 8, 1782 relative to the right of American fisherman to ply their trade, particularly off the Newfoundland banks, to the effect that our Nation did not claim the right of fishing within three leagues of the British shores. On November 8, 1793, Secretary of State Jefferson informed the British and French ministers that "the ultimate extent" of the marginal sea was reserved "for further deliberations." However, Mr. Jefferson went on to state that the President had instructed American officials to restrain the enforcement of their orders "for the present to the distance of one sea league or three geographical miles from the sea shores." This measure was adopted by Congress in the following year when it gave the district courts "cognizance of complaints, by whomsoever instituted, in the cases of captures made within the waters of the United States or within a marine league of the coasts or shores thereof" (sec. 6, Act of June 5, 1794, 1 Stat. 384). From time to time the United States has reasserted its adherence to the 3-mile limit in various diplomatic notes, court opinions, and by its actions. The Navy War Code of 1900, Art. II, declares: "The territorial waters of a State extend seaward to the distance of a marine league from the lowest water mark of its coast line." And finally, the United States Supreme Court seems to fix American jurisprudence in support of the 3-mile limit in the case of Cunard S. S. Co. et al. v. Mellon (43 S. Ct. 504 (1923)). While the United States has for nearly 150 years recognized the 3-mile limit and has followed the doctrine of "freedom of the seas," there are notable exceptions which, at first blush, would indicate an inconsistency of position. However, it is reiterated for the sake of emphasis that the rule of international law which recognizes the 3-mile limit as the boundary of that part of the sea which constitutes part of the territory of the littoral State is not inconsistent with the claim to a more extended control on the high seas. As a matter of further emphasis, it is pointed out that the 3-mile zone is in reality "a territorial" sea, coming fully under the domain or sovereignty of the adjoining State. Perhaps the first apparent departure which our country took from the 3-mile limit principle was when it followed the British lead by passing the Act of March 2, 1799. The Act provided that every ship "bound to any port or place in the United States" might be boarded within four leagues of the American coast, examined, searched, and compelled to show a manifest. It is to be noted that the law had application only to ships which were bound to the United States. The principle of the Act of March 2, 1799, was incidentally considered by the Supreme Court in several cases. The first of these cases was that of Church v. Hubbart, (1804), 2 Cranch 187, in which Chief Justice Marshall, speaking for a unanimous court ruled that a nation might lawfully take steps upon the high seas to protect itself and secure its laws from violation, provided the measures employed satisfy the test of reasonableness. The Treaty of Guadalupe Hidalgo between the United States and Mexico in 1848 represents another apparent departure from the 3-mile limit principle. The British protest to Art. V of the treaty on the grounds that it extended the 3-mile limit was satisfied when our Government informed the British Government that the treaty only affected the United States and Mexico, and in no way infringed on the rights, under international law, of any other nation. Another seeming inconsistency in the position of the United States with reference to the 3-mile limit principle occurred during the years 1886-89 in the seizure of certain British sealing schooners in the Bering Sea by U. S. revenue cutters against which the British Government protested. The matter was settled by arbitration on February 29, 1892. The arbitrators decided that the United States had no right of protection or property in fur seals frequenting the islands of the United States in the Bering Sea when such seals were found outside the ordinary 3-mile limit. A later treaty, however, was entered into between the United States, Great Britain, Russia, and Japan which prohibited the contracting powers from engaging in sealing in the open seas of the North Pacific Ocean within certain defined areas. Perhaps the most notable of all "inconsistencies" of this Government with reference to the principle of the 3-mile limit occurred in 1922 when the United States and Great Britain entered into a treaty designed to permit the former to effectively combat the liquor smuggling industry outside the 3-mile limit off the coast of the United States. As late as December 11, 1941, the President of the United States, by Executive Order, defined for purposes of international defense "defensive sea areas" which extended outside the territorial waters of the United States. In all of these apparent inconsistencies, it can be seen that the United States was in no way attempting to exercise the same incidents of sovereignty over the high seas which it exercises with respect to its territorial waters within the 3-mile limit. The purpose in each case was limited and specific, and involved only the exercise of a control-in contradistinction to the exercise of a sovereignty over the waters contiguous to the boundary of the 3-mile limit. In the four instances cited above, the United States has exercised a control outside the 3-mile limit for the purpose of regulating fishing, for enforcement of customs laws and for purposes of self-defense. In every instance set out above, this exercise of control outside the 3-mile limit for the purposes enumerated has been pursuant to treaty with other powers with one notable exception, and that, for the purpose of self-defense. In addition to the above there have occurred within the past 3 years still other apparent inconsistencies in the United States position with respect to the 3-mile limit. On September 28, 1945, the President of the United States issued two proclamations, the first of which, Proclamation No. 2667, declared as a matter of policy that the natural resources of the subsoil and sea bed of the continental shelf appertain to the United States, subject to its jurisdiction and control. Simultaneously the President of the United States issued Proclamation No. 2668, which asserted the right of the United States to establish fishery conservation zones in areas of the high seas contiguous to the coasts of the United States, either unilaterally or in concert with other interested States; the character of the waters as high seas and the right to free navigation were declared to remain unaffected. The concept of asserting jurisdiction over the subsoil and sea bed of the continental shelf, while not new, is of comparatively recent inception. As early as 1916 a Spanish expert, concerned over the depletion of fisheries, urged that territorial waters be extended to include the whole continental shelf, where the important food species chiefly flourished. Similar recognition of the importance of the shelf with respect to fisheries was being voiced simultaneously by Argentine writers who emphasized the need for adequate control. This concern was reiterated some years later in the League of Nations Committee of Experts for the Progressive Codification of International Law. In quite another connection, the year 1916 also saw the assertion by the Russian Imperial Government of a claim to certain uninhabited islands north of Siberia on the ground that they formed "the northern constitution of the Siberian continental shelf"-an assertion repeated by the Soviet Government in 1924. Also of significance as a precedent, although it did not refer in terms to the continental shelf, was the treaty of February 26, 1942, between Venezuela and the United Kingdom, undertaking to dispose of the submarine areas of the Gulf of Paria. By the agreement each State undertook to recognize "any rights of sovereignty or control which have been or may hereafter be lawfully acquired" by the other over submarine areas on their respective sides of an arbitrary boundary line. "Submarine areas" were defined as "the sea bed and the subsoil outside of the territorial waters of the High Contracting Parties.” Soon after the proclamation of the President of the United States asserting jurisdiction and control over the continental shelf adjacent to the United States, several Latin American countries |