secretaries of state, or, in the case of a colony, the governor, shall certify that the institution of proceedings is in his opinion expedient. "5. Nothing in this act contained shall be construed to be in derogation of any rightful jurisdiction of Her Majesty, her heirs or successors, under the law of nations, or to affect or prejudice any jurisdiction conferred by act of Parliament or now by law existing in relation to foreign ships or in relation to persons on board such ships. "6. This act shall not prejudice or affect the trial in manner heretofore in use of any act of piracy as defined by the law of nations, or affect or prejudice any law relating thereto; and where any act of piracy as defined by the law of nations is also any such offence as is declared by this act to be within the jurisdiction of the admiral, such offence may be tried in pursuance of this act, or in pursuance of any other act of Parliament, law, or custom relating thereto. “7. . . . The territorial waters of Her Majesty's dominions,' in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." The case of Queen v. Keyn is criticised in Maine, Int. Law, 38; Walker, (5) CASE OF THE COSTA RICA PACKET. § 148. January 24, 1888, an Australian whaling ship, the Costa Rica Packet, sighted at sea a water-logged derelict prauw (native Malayan boat) of about a ton burden. Two boats were put off, which, finding goods on board the prauw, towed it alongside the ship, where there. were transferred to her deck from the prauw ten cases of gin, three cases of brandy, and a can of kerosene, the brandy and gin being more or less damaged by sea water. The prauw and its contents belonged to some natives of the Dutch East Indies; and three years afterwards, the Costa Rica Packet being then in the port of Ternate, Dutch East Indies, the master was arrested on a charge of theft, in having seized the prauw and maliciously appropriated the goods on it. A claim was made against the Dutch Government for his arrest and imprisonment, on the ground that the act complained of took place on the high seas outside Dutch jurisdiction. The warrant of arrest alleged that it took place not more than three miles from land, but the evidence showed that it was at least fifteen or twenty. The case was referred to Dr. von Martens, of St. Petersburg, as arbitrator, who awarded damages to the British Government, holding that "the prauw, floating derelict at sea, . . . was seized incontrovertibly outside the territorial waters of the Dutch Indies." In the course of his award he observed that "the right of sovereignty of the state over territorial waters is determined by the range of cannon measured from the low-water mark." On the facts proved, however, the question of the three-mile limit was not involved in the decision, the distance of the prauw from the shore having far exceeded the range of cannon shot. Moore, Int. Arbitrations, V. 4948, 4952, 4953. ... (6) RULE AS TO FISHERIES. § 149. No general disposition has been manifested in recent years to restrict the right of all nations to take fish in the open sea. The three-mile rule, which defines the exclusive right of fishery on the Canadian coasts under the convention between the United States and Great Britain of 1818, may also be found in the convention of 1882 between Belgium, Denmark, France, Germany, and Great Britain for the regulation of the fisheries in the North Sea. The same rule is embodied in conventions between France and Great Britain of 1839 and 1843 for the regulation of the fisheries in the channel. It is also found in a law passed by the French legislature in 1885 for the exclusion of foreigners from fishing in the territorial waters of France and Algiers. In the British-French conventions of 1839 and 1843, and the North Sea convention of 1882, the width of ten miles at the mouth is, with certain exceptions, adopted as the definition of bays, which are, for the purposes of the conventions, to be treated as territorial waters. This rule was also adopted, with certain specified exceptions, in the unratified treaty between the United States and Great Britain, concluded at Washington February 15, 1888, in relation to the fisheries adjacent to the eastern coasts of British North America. The reason of this definition in fisheries conventions is a practical one. The waters on either side of the bay a For reports of the British delegates attending the international conferences at Stockholm, Christiania, and Copenhagen with respect to the fishery and hydrographical investigations in the North Sea, see Blue Book, North Sea Fishery Investigations, 1903. within three marine miles of the shore being admittedly territorial, it is assumed that fishing in the intervening waters in bays less than ten miles wide at the mouth, if it were not actually unprofitable, would, by reason of the narrowness of the open space, be attended with constant risk of violating the law and with constant temptation to violate it. "The Department has recently received a despatch from Mr. Peirce, the minister of the United States at Honolulu, containing information upon the subject of the whaling interest in the Pacific. The despatch is accompanied by an extract from the Hawaiian Gazette, a copy of which is hereunto annexed. From this it appears that the British whaling barque Faraway has been warned not to engage in that pursuit in the Ochotsk Sea, and her master was served by a Russian war steamer with the notice which is at the foot of the newspaper extract. Although we are not aware that the notice has been served on any American whaling vessel, the generality of its terms makes such vessels under our flag liable to receive it, and as the interest of the United States in the business far exceeds that of any other country, it is important that we should be informed if the notice was issued by authority of the Russian Government. You will accordingly make the necessary inquiries upon this subject and will report the result.' "There was reason to hope that the practice which formerly prevailed with powerful nations of regarding seas and bays usually of large extent near their coasts as closed to any foreign commerce or fishery not specially licensed by them was without exception a pretension of the past, and that no nation would claim exemption from the general rule of public law, which limits its maritime jurisdiction. to a marine league from its coasts. We should particularly regret if Russia should insist on any such pretension. 66 In 1824 a convention was concluded between the United States and that power on the subject of fishing in the Pacific Ocean, by the first article of which it is stipulated that the citizens and subjects of the parties shall neither be disturbed nor restrained in following that pursuit. It is true that the IVth Article limits to ten years from the date of the instrument, the right to fish in interior seas, gulfs, harbors and creeks. It may be contended that by agreeing to this article we impliedly at least recognized the right of Russia to exclude our whalemen from those interior seas and gulfs at the expiration of the ten years. This, however, cannot be acknowledged if such exclusion should operate in any interior seas of surface large enough to make much of that surface notoriously beyond the limit of maritime jurisdiction from the shores. The Ochotsk Sea at least is obviously of this character." Mr. Fish, Sec. of State, to Mr. Boker, min. to Russia, Dec. 1, 1875, MS In reply to an inquiry whether American citizens were permitted by "Referring to previous correspondence between the Department and yourself on the subject of whale fishing off Bahia Bay, on the Brazilian coast, I have to acknowledge the receipt of your letter of the 8th instant on the same subject in which you express a desire to be informed. whether such fishing on your part will contravene any existing treaty stipulations between the United States and Brazil. "In reply, I have only to say that we have no existing treaty with Brazil, that of 1828 having expired in all its parts relating to navigation and commerce in 1841. The general law and rule is understood by this Government to be that beyond the marine league or three-mile limit, all persons may freely catch whale or fish. In computing this limit, however, 'bays' are not taken as a part of the high seas; the three miles must be outside of a line drawn from headland to headland." Mr. John Davis, Assist. Sec. of State, to Mr. Osborn, Feb. 14, 1884, 150 MS. In the MS. record-book the last words of the foregoing passage read, error. "It being desirable that there should be an agreement between the several Departments of our Government as to the limits of territorial waters on our northeastern and northwestern coasts, I have the honor to submit to you the following statement of the law on this important question as held in the Department of State. What I have here to communicate bears, so far as concerns the Department over which you preside, on our own claim to a jurisdiction over territorial waters on the northwest coast beyond the three-mile zone. We resist this claim when advanced against us on the northeastern coast. What is now submitted to you is the question whether the principle thus asserted by us does not preclude us from setting up an extension, beyond this limit of our marine jurisdiction in the northwest. "In a letter by Mr. Jefferson, when Secretary of State on November 8, 1793, to the minister of Great Britain, and in a circular of November 10, 1793, to the United States district attorneys, the limit of one sea-league from shore was provisionally adopted by him as that of the territorial seas of the United States. The same position was taken by Mr. Pickering, Secretary of State, on September 2, 1796; by Mr. Madison, Secretary of State, Feby. 3, 1807; By Mr. Webster, Secretary of State, August 1, 1842; by Mr. Seward, Secretary of State, December 16, 1862, August 10, 1863, Sept. 16, 1864; and by Mr. Fish, Secretary of State, December 1, 1875. "In a note from Mr. Fish to Sir Edward Thornton, dated Jan. 22, 1875, it is expressly stated in reply to inquiries from the British foreign office that this Government has uniformly, under every administration, objected to the pretension of Spain' to a six-mile limit. Mr. Fish proceeds to show that the United States statute, giving the right to board vessels within four leagues of the coast, is applied only to vessels coming to United States ports, and that the extension of the boundary line, between the United States and Mexico, to three leagues from land, by the treaty of Guadalupe Hidalgo, applies only to Mexico and the United States. 6 "Mr. Evarts, writing to Mr. Fairchild, then our representative in Spain on March 3, 1881 (Foreign Relations, 1881) said: This Government must adhere to the three-mile rule as the jurisdictional limit, and the cases of visitation without that line seem not to be excused or excusable under that rule.' 66 Whether the line which bounds seaward the three-mile zone follows the indentations of the coast or extends from headland to headland is the question next to be discussed. "The headland theory, as it is called, has been uniformly rejected by our Government, as will be seen from the opinions of the Secretaries above referred to. The following additional authorities may be cited on this point: "President Woolsey makes the following comment on the 'headland' claim: But such broad claims have not, it is believed, been much urged, and they are out of character for a nation that has ever asserted the freedom of doubtful waters as well as contrary to the spirit of more recent times.' "In an opinion of the umpire of the London commission of 1853, it was held that: It can not be asserted as a general rule, that nations have an exclusive right of fishery over all adjacent waters to a distance of three marine miles beyond an imaginary line drawn from headland to headland.' "This doctrine is new and has received a proper limit in the convention between France and Great Britain of the 2d of August, 1839, in which it is equally agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland. Cited Halifax |