SITUATION IX.

During the war between the United States and State X, a war vessel of the United States meets a war vessel of State X off the harbor of neutral State Y. When about to attack the war vessel of State X, a war vessel of State Y, near point (0), signals that it would be a violation of neutrality to engage in battle at that point. The point (0) is found to be 5 miles from the nearest land of State Y, as shown in the accompanying plan (I) below.

(a) What is the limit of territorial jurisdiction? (b) What should the commander do in regard to the protest?

(a) The limit of territorial jurisdiction in the Situation under consideration would be generally admitted to be 3 nautical miles outside the "straight line athwart the bay as close as possible to the entrance at the first point at which the entrance to the bay exceeds 10 miles of 60° latitude," as the Netherlands proclamation states.

(b) The commander of the United States war vessel should heed the protest of neutral State Y and should not attack the vessel of State X until it passes outside of neutral jurisdiction, and must use reasonable care that no act of hostility takes place which will endanger neutral safety.

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NOTES ON SITUATION IX.

Maritime jurisdiction. The limit of maritime territorial jurisdiction has been the subject of much difference of opinion. The rule of Bynkershoek has formed the basis of the opinion since it was set forth in "De Dominio Maris" in 1702. He maintained "potestatem terræ finiri ubi finitur armorum vis," or that the territorial jurisdistion was bounded by the range of arms. In those days this range seems to have been about a marine league. Hence the three-mile limit became common. It was acknowledged in many treaties. It was legalized in some states, as by the Territorial Waters Jurisdiction Act of Great Britain in 1878, and the convention of 1888 in regard to the Suez Canal, and Article III, 5, of the Hay-Pauncefote treaty of 1901 also adopts the three-mile limit of maritime jurisdiction for the Panama Canal. The marine league was also adopted in fisheries treaty between the United States and Great Britain of October 20, 1818, Article I.

Three marine miles from the low-water mark may be considered as in practice the conventional extent of maritime jurisdiction. There are, however, many exceptions claimed and granted.

One of the most common claims, though not generally admitted, is that the rule enunciated by Bynkershoek should be followed, viz, that the maritime jurisdiction should be bounded by the range of arms and should accordingly be increased as the range of arms increases. For certain purposes, such as for attack and defense of the coast, it is maintained that this is in fact the real limit of effective jurisdiction at the present time.

For revenue purposes, for the protection of special industries, such as fishing, and for other reasons, various limits beyond the three-mile line have been claimed and acknowledged from time to time.

Kent's extreme claim.-Kent makes extreme claims for the United States. On page 112 of Abdy's edition of his Commentary on International Law, he says:

All that can reasonably be asserted is that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his

safety and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority the general territorial jurisdiction extends into the sea as far as a cannon shot will reach and no farther, and this is usually calculated to be a marine league (or three miles, the maxim in which this doctrine is embodied being "terræ finitur dominium ubi finitur armorum vis"), and the Congress of the United States have recognized this limitation by authorizing the district courts to take cognizance of all captures made within a marine league of the American shores. The Executive authority of that country, in 1793, considered the whole of Delaware Bay to be within its territorial jurisdiction, resting its claims upon those authorities which admit that gulfs, channels, and arms of the sea belong to the people with whose lands they are encompassed, and it was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon shot.

Considering the great extent of the line of the American coasts, their writers contend that they have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; nor would it be unreasonable, as they say, to assume, for domestic purposes connected with their safety and welfare, the control of the waters on their coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi. It is certain that their Government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the use of the waters of their coast, far beyond the reach of cannon shot, as cruising ground for belligerent purposes. In 1793 the Government of the United States thought they were entitled, in reason, to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively insist upon more than the distance of a marine league from the seashores; and in 1806 they thought it would not be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore.

It ought, at least, to be insisted, they urged, that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within "the chambers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another." In the case of the Little Belt, which was cruising many miles from shore between Cape Henry and Cape Hatteras, the Government of the United States laid stress on the circumstance that she was "hovering on our coasts," and it was contended on their part that they had a right to know the national character of armed ships in such a situation, and that it was a right immediately connected with their tranquillity and peace. It was further observed that all nations exercise the right, and none with

more rigor or at a greater distance from the coast, than Great Britain, and none on more justifiable grounds than the United States. There can be but little doubt that the more the United States advance in commerce and naval strength the more will their Government be disposed to feel and acknowledge the justice and policy of the British claim to supremacy over the narrow seas adjacent to the British isles, because they will stand in need of similar accommodation and means of security.

This position assumed by Kent presents the case of claims for jurisdiction beyond the three-mile limit more broadly than the Government itself was inclined to presume to make claims. No such extreme position would now be taken even in the claims for fishing rights.

Russian provision.-Article 21 of the Russian Prize Law provides: "The right of making prizes is recognized only in the open seas. As for the open sea, it consists of waters which are not under fire of neutral batteries, or three sea miles from the neutral shores." (U. S. For. Rel., 1886, p. 957.)

French position in 1864.—In 1864, at the time of the prospective battle between the Kearsarge and the Alabama, the following dispatches were sent, showing something of the opinion of the time:

Mr. Dayton to Mr. Seward.

PARIS, June 17, 1864.

SIR: You will, doubtless, have received, before this, notice of the arrival of the Alabama in the port of Cherbourg and my protest to this Government against the extension of any accommodations to this vessel. M. Drouyn de l'Huys yesterday informed me that they had made up their minds to this course, and he gave me a copy of the written directions given by the minister of marine to the vice-admiral, maritime prefect at Cherbourg, a translation of which accompanies this dispatch. But he, at the same time, informed me that the United States ship of war, the Kearsarge, had appeared off the port of Cherbourg and there was danger of an immediate fight between those vessels; that the Alabama professes its entire readiness to meet the Kearsarge, and he believed that each would attack the other as soon as they were three miles off the coast; that a sea fight would thus be got up in the face of France, and at a distance from their coast within reach of the guns used on shipboard in these days; that the distance to which the neutral right of an adjoining government extended itself from the coast was unsettled, and that the reason of the old rules, which assumed that three miles was the outermost reach of a cannon shot, no longer existed, and that, in a word, a fight on or about such a distance from their coast would be offensive to the dignity of France and they would not

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permit it. I told him that no other rule than the three-mile rule was known or recognized as a principle of international law, but if a fight were to take place, and we would lose nothing and risk nothing by its being farther off, I had, of course, no objection. I had no wish to wound the susceptibilities of France by getting up a fight within a distance which made the cannon shot liable to fall on her coast. I asked him if he would put his views and wishes on this question in writing, and he promised me to do so. I wrote to Captain Winslow this morning, and herewith inclose you a copy of my letter. I have carefully avoided in this communication anything which would tend to make the Kearsarge risk anything by yielding what seemed to me an admitted right.

To deliver this letter, and understand some matters in respect to the alleged sale of the clipper ships at Bordeaux, I have sent my son to Cherbourg.

I am, sir, your obedient servant, Hon. WILLIAM H. SEWARD, etc.

WM. L. DAYTON.

Mr. Dayton to Captain Winslow.

SIR: This will be delivered to you by my son and assistant secretary of legation. I have had a conversation this afternoon with M. Drouyn de l'Huys, minister of foreign affairs. He says they have given the Alabama notice that she must leave Cherbourg, but in the meantime you have come in and are watching the Alabama, and that this vessel is anxious to meet you, and he supposes you will attack her as soon as she gets three miles off the coast; that this will produce a fight which will be at best a fight in waters which may or may not be French waters, as accident may determine; that it would be offensive to the dignity of France to have a fight under such circumstances and France will not permit it; that the Alabama shall not attack you, nor you her, within the three miles or on or about that distance off. Under such circumstances I do not suppose that they would have, on principles of international law, the least right to interfere with you if three miles off the coast, but if you lose nothing by fighting six or seven miles off the coast instead of three, you had best do so. You know better than I (who have little or no knowledge of the strength of the two vessels) whether the pretense of the Alabama of a readiness to meet you is more than a pretense, and I do not wish you to sacrifice any advantage if you have it. I suggest only that you avoid all unnecessary trouble with France, but if the Alabama can be taken without violating any rules of international law, and may be lost if such a principle is yielded, you know what the Government would expect of you. You will, of course, yield no real advantage to which you are entitled, while you are careful to so act as to make uselessly no unnecessary complications with the Government. I ought to add that Mr. Seward's dispatch, dated May 20, 1864, was in the following words: "The Niagara will proceed with as much dispatch as possible to cruise in European waters, and that the Dictator, so soon as she shall be ready for sea (which is expected to be quite soon), will follow