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International Law are relied on; the question may well be asked -Upon what authority are these statements founded ? when and in what manner have the nations, who are to be affected by such a rule, as these writers, following one another, have laid down, signified their assent to it? to say nothing of the difficulty, which might be found in saying to which of these conflicting opinions such assent has been given. For even if entire unanimity had existed in respect of the important particulars, to which I have referred, in place of so much discrepancy of opinion, the question would still remain, how far the law, as stated by the publicists, had received the assent of the civilized nations of the world ? For writers on International Law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations, who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage--an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law, as well as to that of their own country. In the absence of proof of assent as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of ynanimous consent on the part of other nations be sufficient to authorise the tribunals of this country to apply without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless sufficient to give the power of Parliamentary legislation in a matter otherwise within the sphere of International Law, but it would be powerless to confer a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high sea s.
“ And when I am told that all other nations have assented to such an absolute dominion on the part of the littoral State over this portion of the sea as that their ships may be excluded from it, and that without any open legislation or notice to them or their subjects, the latter may be held liable to the local law, I ask, first, what proof is there of any such assent as is here asserted, and
secondly, to what extent has such assent been carried, a question of infinite importance, when, undirected by legislation, we are called upon to apply the law on the strength of such assent. It is said that we are to take the statements of the publicists as conclusive proofs of the assent in question, and much has been said to impress upon us the respect which is due to their authority; and that they are to be looked upon as witnesses of the fact, whose statements, or the foundation on which these statements rest, we are scarcely at liberty to question. I demur altogether to this position. I entertain a profound respect for the opinion of jurists, when dealing with matters of juridical principle and opinion; but we are here dealing with a question not of opinion but of fact; and I must assert my entire liberty to examine the evidence and to see on what foundation these statements are based. The question is one not of theoretical opinion, but of fact, and fortunately the writers, upon whose statements we are called upon to act, have afforded us the means of testing those statements by reference to facts. They refer us to two things, and to these alone, treaties and usage. Let us look a little more closely into both.”
The Lord Chief Justice then proceeds to analyse the bearing of treaties on the question in the following terms :
“ First, then, let us see how the matter stands as regards treaties :-It may be asserted without fear of contradiction that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the State shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in the ships of other nations, has never been made the subject matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic discussion. It has been entirely the creation of the writers on International Law. It is true that the writers who have been cited constantly refer to treaties in support of the doctrine they assert. But when the treaties they refer to are looked at, they will be found to relate to two subjects only—the observance of the rights and obligations of neutrality, and the exclusive right of fishing. In fixing the limits to which these rights should extend, nations have so far followed the writers on International Law, as to adopt the principle of the threemiles'range as a convenient distance. There are several treaties by which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each
other's coasts as neutral territory, within which no warlike operations should be carried on; instances of which will be found in the various treatises on International Law. Thus, for instance, in the treaties of commerce between Great Britain and France, of September, 1786; between France and Russia, of January, 1787; between Great Britain and the United States, of October, 1794, each contracting party engages, if at war with any other nation, not to carry on hostilities within cannon-shot of the coast of the other contracting party; or, if the other should be at war, not to allow its vessels to be captured within the like distance. There are many other treaties of the like tenour, a long list of which is given by Azuni (vol. ii., p. 78); and various ordinances and laws have been made by the different States in order to give effect to them.
“Again, nations possessing opposite or neighbouring coasts, bordering on a common sea, have sometimes found it expedient to agree that the subjects of each shall exercise an exclusive right of fishing to a given distance from their own shores, and here also have accepted the three miles as a convenient distance. Such, for instance, are the treaties made between this country and the United States in relation to the fishery off the coast of Newfoundland, and those between this country and France in relation to the fishery on their respective shores; and local laws have been passed to give effect to these engagements. But in all these treaties this distance is adopted, not as matter of existing right established by the general law of nations, but as matter of mutual concession and convention. Instead of upholding the doctrine contended for, the fact of these treaties having been entered into has rather the opposite tendency : for it is obvious that if the territorial right of a nation bordering on the sea to this portion of the adjacent waters had been established by the common assent of nations, these treaty arrangements would have been wholly superfluous. Each nation would have been bound, independently of treaty engagement, to respect the neutrality of the other in these waters as much as in its inland waters. The foreigner invading the rights of the local fisherman would have been amenable, consistently with International Law, to local legislation prohibiting such infringement, without any stipulation to that effect by treaty.
“ For what object, then,” continues the Lord Chief Justice, have treaties been resorted to? Obviously in order to obviate all questions as to concurrent or conflicting rights arising under the Law of Nations. Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging, for these purposes, to the local State. But it is scarcely logical to infer, from such treaties alone, that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins for certain specified objects, they have therefore assented to forego all other rights previously enjoyed in common, and have submitted themselves, even to the extent of the right of navigation on a portion of the high seas and the liability of their subjects therein to the criminal law, to the will of the local Sovereign and the jurisdiction of the local State. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one State passing in ships within three miles of the coast of another shall be in all respects subject to the law of the latter. It may be that the maritime nations of the world are prepared to acquiesce in the appropriation of the littoral sea ; but I cannot think, that these treaties help us much towards arriving at such a conclusion. At all events, the question remains whether judicially we can infer that the nations who have been parties to them, and still further those who have not, have thereby assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference so apply the criminal law of this country. The uncertainty in which we are left, so far as judicial knowledge is concerned, as to the extent of such assent, presents, I think, a very serious obstacle to our assuming the jurisdiction we are called upon to exercise, independently of this, to my mind, still more serious difficulty—that we should be assuming it without legislative warrant. So much for treaties.”
The Lord Chief Justice then proceeds to discuss the matter of Usage
“Usage,” he says, “as to the application of the general law of the local State to foreigners on the littoral sea, notwithstanding reference to usage is frequently made by the publicists in support of their doctrine, there is actually none. No nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of navigation, or has assumed the power of making foreigners in foreign ships passing through these waters subject to its law, otherwise than in respect of matters connected with the navigation, or with revenue, local fisheries, or neutrality. And it is to these alone that the usage relied on is confined. Nor have the tribunals of any nation held foreigners in these waters amenable generally to the local criminal law in respect of offences. It is for the first time in the annals of jurisprudence that a Court is now called upon to apply the criminal law of the country to such a case as the present.”
The Lord Chief Baron and the Judge of the High Court of Admiralty were in perfect accord with the Lord Chief Justice of England as to the principle, by which the decision of the case under their consideration ought to be governed. The former, who stated that he had participated in the preparation of the judgment of the Judge of the High Court of Admiralty,* which might therefore be taken to be the judgment of both, added that
“Inasmuch as it cannot be disputed that the high seas, that is to say, the whole seas of the world below low-water mark, are open to all the world, and that the ships of every nation are free to navigate them, no one nation has the right to exercise criminal jurisdiction over the ships of other nations, or the natives of other nations within such ships navigating the high seas—that is, passing through the high seas (without casting anchor or stopping) between one foreign port and another, unless by treaty or express agreement, or by general and long.continued usage, evidenced by the actual exercise of such jurisdiction acquiesced in by the nation or nations affected by it. Whereas, not one single instance of the exercise of such a jurisdiction is to be found in the history of the world from the beginning of time.” “And it appears to me,” he adds, “indisputable, that no authorities of any number of writers upon International Law, even if they were express and uniform (which they are not) to the same effect, can
* The Judge of the High Court of Admiralty referred to a jndgment of Lord Stowell in the case of the Henrick and Maria (4 Ch. Robinson, p. 54), from which it appears that the ratio decidendi adopted by the majority of the judges in the present case was also approved by that eminent judge. “It is to be remembered," Lord Stowell says, “ that this (namely, the consummation of the capture of a vessel) is a matter not to be governed by abstract principles alone; the use and practice of Nations has intervened and shifted the matter from its foundations of that species: the expression which Grotius uses on these occasions (placuit gentibus) is in my opinion perfectly correct, intimating that there is an use and practice of Nations, to which we are now expected to conform."