national law, and could be claimed, as a matter of necessity, by the state whose territory lay upon its upper waters. The right of navigating the Mississippi, stipulated for by England in a precisely similar case, was cited by the United States Government in support of its view, as was the action of the Congress of Vienna, to which England had been a party, in throwing open a number of European rivers to general navigation in cases similar to those of the St. Lawrence and Mississippi, It was also contended, in behalf of the United States, that, on account of the character and importance of the bodies of water connected by it, the St. Lawrence should be regarded as a strait rather than as a river, and that the question of its navigation should be determined, as in the case of straits, rather by the right to navigate the bodies of water connected by it than by the ownership of the banks along its lower

course.

On the part of Great Britain the validity of the first of the positions assumed by the United States was denied, as not warranted by international law. The contention was also made that, wherever such concessions had been granted, they had been based upon treaty stipulations. The liberal arrangements in regard to the joint or general right of river navigation made by the Congress of Vienna, and recognized in subsequent treaties, were based upon the conventional law of nations, and could be withdrawn or modified at any time. To the second claim, that the river should be regarded as a strait, it was replied that the application of such a rule must be general and international, and not local and particular. If it applied to the case of the St. Lawrence, it applied with equal force to the Hudson and Mississippi, and to the artificial channels in New York and Ohio which formed a part of the line of water communication between the great lakes and the sea. Unless, therefore, the United States was prepared to open these artificial channels to general navigation, the British Government must decline to so regard that portion of the St. Lawrence which lay entirely within its territorial jurisdiction. The discussion, though ably conducted on both sides, led to no

results of immediate or practical importance. The question. of navigation was settled by the reciprocity treaty of 1854; by which, in consideration of certain concessions to British subjects in the matter of navigating Lake Michigan, the right of navigation of the St. Lawrence and the Canadian canals, forming a part of the system of communication between the great lakes and the sea, was conceded to citizens of the United States.'

In this connection it is well to observe that the concessions thus far obtained in the matter of throwing open rivers to general navigation, however liberal they may have been, are all of them based upon treaty stipulations. In none of these treaties is the question treated as one amending or modifying the existing rules of international law upon the subject of river navigation. Such boundary rivers, therefore, as have not thus far been made the subject of treaty stipulation, are subject, in all questions affecting their ownership and navigation, to the rules of international law as they existed in 1815. No claim can be advanced to their navigation based upon the treaties above referred to, as none of them have changed or amended the existing rules of international law.'

THE MARINE LEAGUE: THE THREE-MILE LIMIT

Jurisdiction over a Portion of Coast Sea. Although the strict territorial jurisdiction of a state ends at the low-water mark, where the high seas begin, its claim to exercise jurisdic

1 Many of the navigable rivers of South America have been thrown open to general navigation (I Phillimore, p. 209: Lawrence's Wheaton, pp. 362-365). For a full discussion of the controversy between England and the United States on the subject of the St. Lawrence, see I Phillimore, pp. 204-209; Boyd's Wheaton, pp. 266-270; Lawrence's Wheaton, pp. 356-362; I Halleck pp. 150-152; Dana's Wheaton, §§

203-205, note 119. See also I Dig. Int. Law, §§ 30, 72; III Ibid. § 302; I Phillimore, pp. 33. 203: Hall, § 39; Woolsey, p. 62; Lawrence, Int. Law, § 112; I Twiss, §§ 145-156; I De Martens, § 39; Dana's Wheaton, §§ 200-203.

2

La Liberté de la Navigation Fluviale, Edouard Engelhardt, Revue de Droit International (1872), vol. xi. p. 36

tion over a strip or belt of the adjacent sea, three miles in width, has long been generally recognized. Over this belt of coast sea, called the marine league, a state is acknowledged to have complete jurisdiction as against other states; whether its courts can assume jurisdiction over it or not will depend upon its municipal laws. This peculiar jurisdiction is acknowledged to guarantee immunity from acts of belligerency between ships of nations other than that to which the coast sea belongs; to enable a state to carry into effect its maritime laws and customs regulations; to secure protection to the inhabitants of the coast-especially to those engaged in coast fisheries, and to provide for an adequate system of coast defence. As one of the chief reasons for recognizing jurisdiction over the three-mile limit has to do with questions of seacoast defence, it seems proper that the width of this zone should increase as the range of modern artillery increases.' A ship entering or passing through this strip of coast sea, in the prosecution of a voyage, is not regarded as having entered the territory of the adjacent state; nor is it subject to the rules of navigation which are sanctioned by that state and enforced against its own shipping..

The municipal laws of many states also assume a limited jurisdiction over a wider zone of coast sea in defining offences against their revenue laws. This right has never been generally recognized, however, and is only assumed or authorized' for fiscal and defensive purposes."

1 Ortolan, in his Diplomatie de la Mer, liv. ii. chap. viii., and Halleck, chap. vi. § 13, advocate this view. For an opposite opinion, see Boyd's Wheaton, p. 239. See also Dana's Wheaton, §§ 189, 432; Hall, § 41; I Phillimore, pp. 235-242; Lawrence, Int. Law, § 107; I Ortolan, pp. 152-162; Bluntschli, §§ 302-303; Klüber, §§ 130-131; I De Martens, §§ 40, 41; I Hautefeuille, pp. 89-92; Heffter, §§ 74-76; I Dig. Int. Law, §§ 26, 30, 32.

2

'I Halleck, pp. 135, 138; Pom

eroy, § 150; Bluntschli, § 303: Heffter, $$ 75-76; I Hautefeuille, pp. 89-92; I Phillimore, pp. 235-237; Lawrence, Int. Law, § 107; I Twiss, § 190.

The government of Spain has, from time to time, asserted a claim to jurisdiction over the sea within two leagues (six nautical miles) of its coast. The claim is based upon a royal cedula of December 17, 1774, which was supported by a royal decree of May 1, 1775, and by article xv. of the royal decree of May

Case of the "Franconia." Considerable light has been thrown upon the exact character and extent of the jurisdiction of a state over the sea included within the three-mile limit by the case of the Franconia. The Franconia was a German steamer, commanded by Keyn, a foreigner, which, in the prosecution of a foreign voyage, passed within three miles of the English coast. While within the three-mile limit the Franconia collided with an English vessel and sunk her, causing the death of one of her passengers. Some time later Captain Keyn came within English jurisdiction, and was arrested and tried for manslaughter. He was convicted of that offence in the Central Criminal Court, but his case was carried up, on a question of jurisdiction, to the Court of Crown Cases Reserved. It was there held by a majority of the judges that, in so far as the court that had tried Keyn was concerned, the crime had been committed upon a foreign ship, on the high seas, and in the prosecution of a foreign voyage. The Central Criminal Court, therefore, had no jurisdiction in the case. The view of the majority was, that in so far as other states were concerned, England had jurisdiction, for all purposes, over that portion of the high seas included within the three-mile limit; but, as the law of England stood at that time, jurisdiction over crimes committed within that limit had not been conferred by Parliament upon any of the courts of the kingdom. Their criminal jurisdiction ended at the low-water mark, and crimes beyond that limit were therefore committed out of their jurisdiction.'

3, 1850. The claim was last asserted on August 4, 1874, by the Spanish Minister in London, in a communication to the Secretary for Foreign Affairs; to which reply was made by the British Government that it had strenuously and uniformly resisted the pretension of the Spanish Government to an exercise of jurisdiction beyond the distance of a marine league from the coast of Spain. With a view to ascertain the views of other governments, the matter was submitted to them

by Great Britain in an identical communication dated September 25, 1874.-Foreign Relations of the United States, 1875, p. 641.

1

Regina vs. Keyn, L. R. 2 Exch. Div. pp. 63, 202-205.

2 Soon after this decision was announced. Parliament, by the Territorial Waters Jurisdiction Act (40 and 41 Vic. chap. lxxiii.) assumed jurisdiction over the coast sea to the distance of a marine league, and bestowed it upon the Courts of Admiralty. This was done with

THE HIGH SEAS

Extent and Use. This term is applied to the general ocean surface of the globe. It begins at the low-water mark, where, by legal presumption, the land is held to end.' Upon the high seas all nations have equal rights. The privilege of sailing over them or of fishing in them, beyond the three-mile limit, belongs equally to all. No state can include them within its territory, or extend its dominion over them, or exercise exclusive jurisdiction over the whole or any part of the high seas.'

The doctrine of the absolute freedom of the high seas is of relatively recent growth. In former times claims were made to exclusive jurisdiction over large portions of the sea, but none of them are now maintained.

Claims to Exclusive Dominion. In the early part of the sixteenth century extravagant claims to dominion were advanced by Spain and Portugal, based upon their maritime discoveries. As these claims were of the most conflicting character, a controversy arose, which was submitted to Pope Alexander VI. for decision. He decreed that all those parts of the world which were not then in the secure possession of any Christian prince should be divided between Spain and Portugal.' A meridian line was established through a point one

a proviso that "no proceeding should be had in any case under the act unless with the consent of one of her Majesty's secretaries of state, and on his certificate that the institution of the proceedings is, in his opinion, necessary." This reservation was doubtless intended to prevent a conflict between the executive and judicial departments of the government in the event of a case arising under the act of such a nature as to involve considerations of an international character.

1 In accordance with the municipal law of most states, private ownership ceases at high-water mark; the ownership of lands between high and low water, which

are subject to the ebb and flow of the tide, and of lands under the sea, so far as such lands are susceptible of being made the subject of proprietorship, being vested in the state which they adjoin. Like other lands or property interests of the state, however, they may be made the subject of grants by the state to which they pertain.

'I Ortolan, p. 125; I Halleck, chap. vi. § 13; I Phillimore, pp. 209-213; Lawrence, Int. Law, § 105: Heffter, § 73: I De Martens, §§ 42, 43; I Twiss, §§ 172–176, 185; Dana's Wheaton, § 193; Klüber, §§ 130132; Pomeroy, § 158; Vattel, liv, į, chap. xxiii. §§ 280-283.

See p. 14.