made it so. The language indicates that the treaties were intended not only to settle the controversy about jurisdiction, but also to project the operation of laws of the United States forbidding the importation of liquor over the ships and subjects of the contracting states within the one-hour zone. Article two refers to "the rights conferred by this article," meaning, it would seem, the rights to board, search, seize, and presumably to penalize or forfeit, and not merely the right to enact supplementary legislation. The treaty-making power is adequate, under the Constitution of the United States, and it is well known that these treaties were intended to put a stop without further legislation to the flouting of United States prohibition laws by foreign ships.

That the question is perplexing is sufficiently indicated by the contrariety of recent opinions of the lower federal courts. In The Pictonian, decided by the United States District Court for the Eastern District of New York, the court took the view that Great Britain had not only agreed in the treaty to an extension of United States jurisdiction for certain purposes, but that the treaty was self-executing, and that in consequence certain of the penalties and forfeitures prescribed in laws of the United States had become effective as regards British ships and subjects within the one-hour zone. This view was disapproved in The Over The Top, decided by the District Court for the Connecticut District, and it was said that "it is not the function of treaties to enact the fiscal or criminal law of a nation." 10 There is some indication that the District Court for the Southern District of Texas will approve the latter opinion." The District Court for the Southern District of Alabama, on the other hand, has recently held in the case of United States v. Henning that "the effect of the treaty is to extend the territorial waters of the United States from three marine miles to the one hour's travel, as to the liquor laden vessel and persons on her, when the United States laws are intended to be violated." 12 The present writer ventures to suggest, without elaborating the argument, that the view approved in The Pictonian and in United States v. Henning is amply justified by the language of the treaties and by the circumstances which prompted their ratification.

The jurisdictional question-Has the court obtained jurisdiction over the person of the accused or the thing proceeded against?-is unlike the substantive question in several respects. It often happens that it may be answered by recourse to any one or more of several different principles. And it is not always possible to tell just which principle really determined the court's decision in any given case.

In the first place, it is frequently enough that jurisdiction to arrest the person or seize the ship has been given in unequivocal terms by a national

The Pictonian (1924), 3 F. (2d), 145.

10 The Over The Top (1925), 5 F. (2d), 838, 845.

"The Panama (1925), 6 F. (2d), 326, 327.

"United States v. Henning (1925), 7 F. (2d), 488, 490.

statute which is binding upon the national courts. Thus United States courts could hardly be expected to experience serious difficulty in sustaining the jurisdiction to seize a foreign rum ship within the twelve-mile limit for failing to produce the manifest required by federal statute 13 or for unloading in violation of statute without a permit from the customs authorities."4

In the second place, the national courts may sustain an even more extensive jurisdiction in these cases upon the broad ground that the scope of jurisdiction on the seas is after all a political question with respect to which the political department's decision is conclusive. Precedents for such a course may be found in the Behring Sea cases. In one of the earliest of the foreign rum ship cases it was remarked that there must be of necessity a zone of debatable waters adjacent to our coasts, and that the question as to how far United States authority should be extended over such a zone for the seizure of foreign vessels was "a matter for the political departments of the government rather than for the courts to determine." 15

In the third place, if the proceeding is criminal, it is possibly enough that the accused is actually before the court. The fact that he has been arrested in violation of the jurisdiction of a foreign state may present no insurmountable obstacle to the jurisdiction of the court to try him for the offense with which he is charged. If the proceeding is civil to forfeit the foreign ship, the question of jurisdiction may be determined by similar reasoning supported by analogies with some of the criminal cases. In any event, it has been argued, "the ship is held by the court under the arrest of the marshal, a judicial officer, made after the ship is in port, not under the seizure made by the revenue officer, an agent of the executive department." And so the court need not go behind the marshal's arrest to examine the means by which the ship was actually brought within the jurisdiction.

In the fourth place, if the court prefers it may justify its jurisdiction upon principles of international law. One of the most interesting features of the recent cases arising out of seizures of foreign rum ships has been the very evident disposition of the courts to sustain the jurisdiction upon the broadest principles. Chief Justice Marshall's famous assertion in Church v. Hubbart that a nation's power to secure itself from injury "may certainly be exercised beyond the limits of its territory" 17 has been invoked repeatedly. Church v. Hubbart has been mentioned as the leading case sustaining the jurisdiction to make extraterritorial arrests and seizures where the crew and boats of the

"United States v. Bengochea (1922), 279 Fed. 537.

14 The Muriel E. Winters (1925), 6 F. (2d), 466.

15 The Grace and Ruby (1922), 283 Fed. 475, 478. See this Journal, Vol. 19, p. 157.

1o 36 Harvard Law Review, 609, 611. See The Grace and Ruby, supra.

17 Church v. Hubbart (1804), 2 Cranch, 187, 234. See the British Territorial Waters Jurisdiction Act of 1878, preamble, 41 & 42 Vict. c. 73.

rum ship had assisted in taking liquor ashore, 18 where the rum ship had been controlled from shore and had delivered its liquor to small boats by prearrangement, where the rum ship had delivered its liquor to small boats from shore apparently without prearrangement,20 and even where the rum ship had been seized while waiting beyond the three-mile limit for small boats which were to carry the liquor ashore. It was not essential that the court invoke the principle of Church v. Hubbart in any of the above instances. Possibly this makes it all the more significant that the principle has been so consistently invoked by tribunals which are very close to actualities in respect to the rum ships and marginal seas.

And now the recent treaties have extended the jurisdiction of the United States for certain purposes over a new zone in the marginal seas. Whatever their effect may be as regards a possible projection of United States fiscal or criminal laws into new areas, it is clear that the treaties extend jurisdiction over a new zone. The general purport is clear, but there are many problems. By what devices, for example, may the new one-hour zone be measured? May the coast guard go out in speed boats capable of making shore in an hour or less, purchase liquor from rum ships, and then rely upon the purchases to justify seizures? It has been said that "it is doubtful whether such purchases can ever furnish a ground of seizure under the treaty, because, as the transactions would not be illegal at the place where made, and the officers making them would have no intention to introduce the liquor purchased into this country in violation of our laws, the foreign vessel would not in fact be participating in any illegal act in making such sales." 22 In any event, it has been held, "to use as a decoy a special and unusual type of boat having a capacity for speed far greater than ever used in real transactions, and to obtain a purchase by lying on the part of our officers about her speed, is mere entrapment, quite outside the purpose and intent of the treaty." 23 And it has been held further that the foreign rum ship is not necessarily within the one-hour zone because the craft to which it delivers liquor is capable of making shore in less than an hour under favorable conditions without a load. "It is the speed of the boat conveying liquor, and when it is engaged in conveying liquor to the United States, that must be determined." 24

The press has reported one or two instances in which a sea-plane was captured by the coast guard while endeavoring to establish communication

18 The Grace and Ruby, supra. See 23 Columbia Law Review, 472; 23 Michigan Law Review, 163; 32 Yale Law Journal, 259. See also the comment of Secretary Hughes, in this JOURNAL, Vol. 18, p. 232.

19 United States v. 1, 250 Cases of Liquor: The Henry L. Marshall (1922), 286 Fed. 260, 292 Fed. 486. See also the comment of Secretary Hughes, in this Journal, Vol. 18, p. 233. 20 United States v. Ford (1925), 3 F. (2d), 643.

21 United States v. Bengochea (1922), 279 Fed. 537.

22 The Marjorie E. Bachman (1925), 4 F. (2d), 405, 407.

23 Ibid.

24 The Over The Top (1925), 5 F. (2d), 838, 844.

with foreign rum ships. Should such communication actually be established, and should the seaplane be regarded as a "vessel" within the meaning of the treaties, United States authorities would be justified in searching and seizing foreign rum ships beyond any limits asserted in the ill-starred attempt of an earlier day to control sealing in the Behring Sea.

Another problem arising under the recent treaties is presented in two cases which arrive at contrary results. In The Frances Louise, the District Court for the Massachusetts District dismissed a libel asking the forfeiture of a Canadian rum ship under general principles of international law. The case seems to have been clearly within the principle of Church v. Hubbart, apparently approved by the same court in an earlier case, but it was not within the treaty with Great Britain, and the court held that the treaty was intended to cover the entire question "in a complete way." 25 In The Panama, decided by the District Court for the Southern District of Texas, the court arrived at the opposite conclusion and forfeited the ship and her cargo. It is believed that the conclusion in the latter case is the correct one. The treaties neither enact a code nor establish general principles. In return for concessions in respect to the bringing in of liquor as ship's stores, the other contracting state agrees in each instance to make concessions in respect to searches and seizures. While this does have the effect of projecting certain United States laws and extending United States jurisdiction for certain purposes into a new zone, it by no means follows that every other right to arrest foreign ships outside the three-mile limit, however well supported in reason or sustained by international usage, is to be regarded as having been surrendered by the United States. The maxim inclusio unius est exclusio alterius has no application. Should the conclusion reached in The Frances Louise prevail, the treaties will probably need to be revised if they are to be adequate for their avowed purpose.

EDWIN D. DICKINSON.

THE SOVEREIGNTY OF THE PANAMA CANAL ZONE

The so-called "Taft Agreement," having to do with the relations between the Panama Canal Zone and the Republic of Panama, was originally negotiated by Mr. Taft, as Secretary of War, and was embodied in five Executive Orders dated December 3, 6 and 28, 1904, January 7, 1905 and January 5, 1911. They were conditioned on certain action to be taken on her part by Panama which she carried out, and which made the agreement in a measure reciprocal. By the Panama Canal Act of August 24, 1912, these orders, together with all other orders and regulations promulgated in the Canal Zone by order of the President for the government and sanitation of the Canal Zone and construction of the Panama Canal, 25 The Frances Louise (1924), 1 F. (2d), 1004.

26 The Panama (1925), 6 F. (2d), 326.

were ratified and confirmed as valid and binding until Congress should otherwise provide. On the expressed ground that the Taft Agreement no longer provided an adequate basis for the adjustment of questions arising out of the relations of the Canal Zone authorities and the Government of Panama, the State Department proposed that the Taft Agreement be terminated and replaced by a more permanent arrangement. Accordingly, by a Joint Resolution approved February 12, 1923, the President was authorized to terminate the Taft Agreement with Panama. Pursuant to this resolution, President Coolidge terminated the agreement by an Executive Order dated May 28, 1924, to take effect on June 1, 1924. This leaves the relations between Panama and the Canal Zone in peace time to be governed chiefly by the Panama Canal Treaty of 1903.

Since the termination of the Taft Agreement, however, the two countries have been engaged in negotiating a new agreement, in the form of a treaty, to replace the Taft Agreement, and for other purposes. The questions being considered in the negotiations are doubtless those of long-standing, such as the acquisition of Panaman lands for the protection of the canal, the taxation of the property of the Panama Railroad Company, a private corporation, which is practically owned and operated by the United States Government, the expropriation of land for canal purposes, the establishment of postal facilities, the use of United States Government commissaries for the sale of goods in the Panama Canal Zone, the furnishing of supplies and facilities to vessels crossing the canal, the collection of customs on imports into the zone, the right of radio communication and aerial navigation in Panama, the sanitation of the cities of Panama and Colon, the extradition of criminals, the issuance of exequaturs for consuls. The settlement of these questions will renew the discussion between the United States and Panama of their sovereign rights in the Panama Canal Zone.

The matter of sovereignty is determined by the Panama Treaty of 1903. Prior to that date the United States recognized that the sovereignty reposed successively in New Granada, Colombia and Panama. The treaty of 1846 between the United States and New Granada, the predecessor of Colombia, contains a guarantee by the United States of the neutrality of the Isthmus and the sovereignty of New Granada over Panama. This relation to the Isthmus was maintained by the United States Government from that time up to the events which led to the independence of Panama and the conclusion of the treaty of 1903, by which the United States contends it acquired general and unrestricted sovereignty over the Canal Zone.

A difficulty arises from the fact that Article III of the treaty of 1903 appears to be a general grant of sovereign powers to the United States, while other articles of the treaty appear to limit that grant.

Article III reads as follows:

The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in