« PreviousContinue »
under our protection, to be ordered by course of justice, and be at peace each with the other."
It would appear from this proclamation, that the wise councillors of King James I. had in view two principles to guide them, as to the extent to which they should assert the right of the King to maintain the peace of the seas adjoining his Realm, when other nations were at war ; namely, that the distance seawards from the King's ports and havens should be a reasonable distance, and that it should be such a distance, that it would be possible for the King's officers always to prohibit violence within it.
The three-mile zone of open sea, which has come to be adopted by the general consent of nations, as the limit within which a neutral nation is entitled to forbid belligerent cruisers to carry on operations of war against enemy's vessels, satisfies both of these conditions, and as its purpose is benevolent, nations have readily acquiesced in the principle, which Bynkershoek has embodied in the proposition, "unde dominium maris proximi non ultra concedimus, quam illi imperari potest, et tamen eo usque."
Many persons have been misled by the terms in which this proposition of public Law is frequently stated-namely, “ Ibi dominium finiri, ubi finitur armorum vis," to suppose that it asserts on behalf of all nations a right of paramount empire (dominium eminens) over the high seas within the distance of a cannon shot from their shores. But the term “imperium" has not necessarily such a meaning. The distinction drawn by Ulpian between the “merum imperium " and the “mixtum imperium” is well known. “Imperium aut merum aut mixtum est ” are the words of the great Roman jurist. “Merum est imperium habere gladii potestatemt ad animadvertendum in facinorosos homines, quod
+ In the market-place of the ancient Hanseatic city of Bremen, in front of the Rathhaus, is a Rolands Säule, a Roland's Column, being a stone column about eighteen feet high, carved into the figure of a man standing under a canopy, with a drawn sword in his right hand and a shield on his left arm,
etiam potestas appellatur. Mixtum est imperium, cui etiam jurisdictio inest, quod in danda bonorum possessione consistit" (Dig. L. II, Tit. 1, sec. 3). What the character of the “imperium” is, which is exercised by nations in maintaining the neutrality of the seas adjoining their coasts, may be gathered from the general practice of nations. The neutral State does not assert any criminal jurisdiction over the belligerent captor; it simply restores to the vanquished party the captured vessel, if it should be brought within its ports, or it claims in the Prize Court of the captor, on its own behalf, the restitution of the vessel to the party, who has been deprived of it. On the same principles of reasonableness and feasibility, the three mile zone of sea is recognised by all nations, as the limit within which every independent State may exercise control over foreign vessels in matters of trade for the protection of its own maritime revenue, and in matters of health for the protection of the lives of its own people. Some nations, indeed, insist practically on a broader zone for the protection of their maritime revenue, but such claims give rise to frequent controversy with other nations, whose merchant ships may have been seized by coastguard cruisers at a greater distance from the coast than a maritime league.
Since the judgment of “the Court for the Consideration of Crown Cases Reserved” has been pronounced in the case of the Queen v. Keyn (the Franconia), a Bill has been brought into the House of Commons by private Members, and has been ordered to be printed, which purports by its title to be of a declaratory character, but which in fact enacts that “the portion of the High Seas, which lies within a distance not exceeding three miles from the sea-coast of
whilst under his feet are the head and hand of another man. These columns, which are preserved in several towns of Germany, are significative of the grant to those towns in the ancient time of the Holy Roman Empire of the Germans of the “merum imperium," the power of life and death in criminal causes exercised by their own magistrates.
any territories, which are now or may hereafter become subject to Her Majesty, her heirs or successors, constitute part of the dominions of Her Majesty, except where the limits of Her Majesty's dominions are or shall be otherwise defined by some express law or treaty." We cannot but think that this Bill has been prepared under a misapprehension of the observations made by the Lord Chief Justice of England in the case of the Franconia. His language, as set forth in the authorised Report of the judgment, recently printed in the Law Reports of March 1, 1877, is as follows:
“ If, by the assent of other nations, the three mile belt of sea has been brought under the dominion of this country, so that consistently with the right of other nations it may be treated as a portion of British territory, which, of course, is assumed as the foundation of the jurisdiction, which the Courts of Law are here called upon to exercise, it follows that Parliament can legislate in respect of it. Parliament has only to do so, and the Judges of the land will, of course, as in duty bound, give full effect to the law, which Parliament shall so create."
It will be seen from the language used by the Lord Chief Justice of England, that he assumes as a condition precedent . to any such legislation, as that which is contemplated in the Bill above-mentioned, that the assent of other nations should have been previously given to the annexation of a portion of the High Seas to the dominions of the Queen. The Bill, however, is not conditional, like the Merchant Shipping Act, which has authorised British Courts of Maritime Law to apply the new Sailing and Steering Rules to foreign vessels on the High Seas, only after the assent of the nation, under whose flag any such vessel is navigated, has been given to such rules.
It has been observed by Chancellor Kent, in his Commentaries on American Law, when he treats of the Law of Nations, vol. i., p. 30, that, considering the great extent of the line of American coasts, the United States have a right to claim for fiscal and defensive regulations a liberal extension of Maritime Jurisdiction; and that it would not be unreasonable 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," he says, “certain, that our 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 our coast far beyond the reach of cannon shot, as cruising ground for belligerent purposes. In 1793, our Government thought they were entitled, in reason, to as broad a margin of pro. tected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea-shores; and, in 1806, our Govern. ment thought it would not be unreasonable, considering the extent of the United States, the shoalness of the coast, and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare between that limit and the American shore."
These remarks of the learned Chancellor may be in them. selves not unreasonable, and, with the assent of other nations, may possibly have practical effect given to them, as was, in fact, attempted on a slighter scale by the Treaty of 1806 between the United States and Great Britain, in what concerned their mutual respect for each other's neutrality. By that Treaty—which was signed at London on 31st December, 1806, but which was never ratified, and therefore remains inoperative—it was agreed that in all cases, where one of the contracting parties should be engaged in war, and the other should remain neutral, the belligerent party should not stop the vessels of the neutral party, or
the unarmed vessels of other nations, within five marine miles from the shore of the said neutral party, provided that the said stipulations should not take effect in favour of the ships of any nation, which should not have agreed to · respect the same line of maritime jurisdiction. The contracting parties also agreed to enforce mutually the obseryance of the new “line of respect,” but only against such nations as should have previously become assenting parties to the Treaty.
It will be seen from the cautious language of Chancellor Kent that he contemplated only an extension of the "control” exercised at present under the general Law of Nations by the United States of America over the Seas adjoining their coasts for the protection of their own neutrality. He has not ventured to suggest that the American Congress should annex of its own authority the High Seas as far as the Gulf Stream to the dominions of the United States. It will also be seen that when the United States and Great Britain agreed by the Treaty of London of 1806 to adopt a mutual extension of what is termed the “ Line of Respect” in time of war to five geographical miles, in place of the generally-accepted line of three geographical miles, they carefully provided that the innovation on the general Law should not operate in respect of other nations except with their express consent. . Sir George Bramwell has well observed, in his Judgment in the case of the Franconia, as he passed in review the possible consequences of the Court deciding in that case in favour of the Crown, “The right we should claim, we must concede to other nations.” If Great Britain may rightfully annex by Act of Parliament the High Seas within three miles of her coast to the dominions of the Queen, why may not the United States of America annex, by an Act of Congress, to the territories of the Union the High Seas within three miles of their coasts? If three miles is allowable, why should not three times three miles be allowable, which is