The entire paragraph in which the above quoted phrase appears is, in English translation, as follows:

Now although all writers on public law without exception I think, prohibit the use of force in the dominions of another, it deserves to be considered whether or not the customs of nations and the decisions of our princes and legislative bodies have been in accord with this principle, and whether we ought in this discussion to distinguish between the right of pursuit and the right of aggression. To begin with the princes, Philip II, King of Spain, in his Leges Nauticae which he gave to the Belgians on October 31, 1563, ordained, under penalty of death, that no violence should be done on the sea for the sake of war or anything else against his subjects and allies, or against foreigners within sight of land or port. It was understood, therefore, that the dominion of the mainland extended as far from land as the eye could see; and there are authorities who agree. But I have shown in my dissertation De Dominio Maris that this definition is too vague, for I hold that the territorial dominion ends where the power of weapons terminates. And I think I have shown in Chapters II and IV of the cited work that both the StatesGeneral and the Estates of Holland agree with me, in proof of which I cited two decrees relating to the salutation of princes. (Questionum Juris Publici Libri Duo, Cornelius van Bynkershoek, Liber I, Cap. VIII, page 59.)

There is reason and right reason in the thought so expressed by Grotius and Van Bynkershoek, for it is obvious that a nation not only can but in many cases, for its own defense, must exercise unquestioned jurisdiction over the marginal sea at least to the distance which its arms can control from shore. If that were not so a hostile force might come within that limit and commit injury to the nationals living on the upland. The case of a neutral is equally serious. Let us assume that two hostile fleets fought a great naval battle so close to the shores of a neutral nation that the shot accidentally injured nationals of the neutral country in their homes on the shore. Surely, this could not be permitted by any nation which took reasonable careful thought for the welfare of its own citizens. Therefore, to repeat, it is a matter of necessity that every nation shall exercise jurisdiction at least as far in the adjacent waters as shell or projectiles fired by a cannon situated on shore will carry.

Now, at the time of the pronouncement of the cannon-shot theory by Grotius and Van Bynkershoek it is likely that the utmost limit of a cannon shot was 3 miles. The cannon of those days compared with the cannon of modern times was a primitive thing, and so a nation which had cannon capable of doing damage at a distance of 3 miles was fortunate indeed. But as men always seek to make more certain that which may be less certain, and to reduce every proposition to a mathematical formula, it was inevitable that the cannon-shot theory of marginal seas jurisdiction would be displaced by some standard of measure with which all men were familiar, and so we have the so-called 3-mile limit. It was apparently an Italian jurist, Galiani, who first suggested that the cannon-shot rule should be changed or transmuted into a 3-mile rule. This is found in a work of Galiani's, published in 1782, wherein Van Bynkershoek's cannonshot limit was stated in a unit of measurement which could be applied with greater certainty, namely, 3 miles. At that time it appears to have been thought that no cannon would ever be made, the shot of which would traverse a greater distance than 3 miles. The idea that cannon manufactured at a later date might shoot farther than 3 miles appears not to have entered the minds of the jurists of the eighteenth century. Instead of following the reasonable rule announced by Grotius and Van Bynkershoek, the rule of the cannon shot, in later times nations pursued instead Galiani's formula of the 3-mile limit.

In this year of 1938 the Galiani formula has nothing in reason to support it and is merely an arbitrary statement of what some nations from tradition or self-interest claim to be international law, and in which others acquiesce because they are too weak to contest it.

Despite the total absence of reason to sustain it at this time, the 3-mile-limit rule is widely asserted to be supported by international law. Its most redoubtable champion is Great Britain, and in this connection it is interesting to note that, for what she has doubtless conceived to be her own interest, Great Britain since the eighteenth century has made a complete about face of her position on that question of international law with respect to jurisdiction in the marginal seas. In the eighteenth and early nineteenth centuries Great Britain passed and enforced a number of statutes in which she claimed jurisdiction for certain purposes as far from shore as 100 leagues, or 300 marine miles. In prior centuries Great Britain claimed an even more extensive and complete jurisdiction, and in all the surrounding seas had compelled the ships of foreign nationals to dip their flags and lower their sails whenever they met a British warship.

With the passage of the years it became more and more to the interest of Great Britain to limit territorial sovereignty to a very narrow margin surrounding the shore. Since Great Britain controlled the sea, and since her welfare depended upon the control of the sea, and upon the passage of her merchant ships to all parts of the earth with the greatest possible freedom from restraint, the British Government tended more and more to support and to enforce on other nations, the 3-mile-limit rule.

THE BRITISH CUSTOMS ACT OF 1876

By act of July 24, 1876, entitled "An act to consolidate the customs laws" (39 and 40 Vict., c. 35) the British Government revised and consolidated the customs laws then in force which were the outgrowth of legislation over many years. It appears that no debate took place on the bill when it was before Parliament.

While a thorough understanding of the bill cannot be attained. without consideration of prior legislation and of the judicial and administrative decisions thereunder, Masterson (pp. 150 et seq.) has written a comprehensive review of the act and Dr. Hessel E. Yntema in his illuminating brief filed with the Committee on Ways and Means of the House of Representatives on March 13, 1935, when the bill which resulted in the Antismuggling Act was under consideration, has given a fair summary of the contents and objects of the act, from which the following is quoted:

Under the construction adopted in these two cases (Attorney General v. Schiers; l'Abandance), it would seem that section 179 of the act of 1876, which is quoted in abbreviated form above, in effect provides that if, on the particular voyage, a vessel has had on board or has conveyed any of the goods specified with a view to smuggling the goods into the United Kingdom, the vessel will be liable to forfeiture in case it is found or discovered to have been within the distance limited, whether with the goods then on board or not. There is apparently no limitation as to the place of conveyance or the place of seizure under this provision; the only requirement is that, during the voyage, the vessel must be found or proved to have been within the required distance. Subject to this requirement, interpreted according to its natural tenor, section 179 of the act of 1876 subjects the vessel to which it applies to forfeiture and the persons on board to a penalty, if the vessel has conveyed, or has had on board, any prohibited goods or if any goods have been

thrown overboard or staved to prevent seizure, at any place without limit as to distance, and without restriction as to where the vessel shall be liable to seizure.

The result of the foregoing analysis is to suggest that in the Customs Consolidation Act of 1876, which constitutes the present law of Great Britain and which has been declared to conform to the principles of international law, there are at least three significant sections which involve a claim, however, sparingly excrcised in recent years owing to the absence of smuggling, to extend customs control to an indefinite distance upon the high seas beyond the 3-mile limit over foreign vessels and subjects, limited in the case of section 179 by the qualification that such vessel or person should be found or discovered to have been on the same voyage, if a vessel in part owned by, or having half the persons on board, British subjects, within 3 leagues of the coast of the United Kingdom, or, in other cases, within 1 league, and, in the case of section 180, limited to vessels, owned in any part by or having half the persons on board, British subjects.

Here is a peculiarly cogent precedent, fortified by a legislative background of 2 centuries, for the principle that a State is entitled, according to its needs, to take measures to repress smuggling upon its coastal waters without the limit of the marginal seas. The significant result of the long experimentation with the British hovering acts is that the provisions at present in force apparently apply, without limitation of distance, to any vessel covered by these provisions which has been within the distance limited from the British coast, irrespective of where the offense under which it is liable may have been committed or of the place of seizure.

THE BRITISH TERRITORIAL WATERS JURISDICTION ACT OF 1878

Following the decision in the case of Regina v. Keyn (2 L. R. Exch. Div. 63 (1876)), by the British Court for Crown Cases Reserved, a case which I shall discuss later, the Parliament of Great Britain in 1878 passed the Territorial Waters Jurisdiction Act (41 and 42 Vict. 73), and in this act, as in the Customs Act of 1876, many of the claims of former times of the right to exercise jurisdiction greater distances from the shore were impliedly abandoned; and since 1878 Great Britain, with increasing force and power and greater insistence, has demanded of all nations adherence to the 3-mile territorial limit. But even in the preamble of the Territorial Waters Jurisdiction Act, it was declared by the Parliament of Great Britain that

The rightful jurisdiction of Her Majesty, her heirs and successors, extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and over all other parts of Her Majesty's dominions, to such a distance as is necessary for the defense and security of such dominions.

Parliament was careful to leave wide open the door to large claims of jurisdiction at sea in other parts of the act for we find in section 7 of the act the following:

"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 lowwater mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions.

It will be observed that Parliament claimed jurisdiction over "such part of the sea adjacent to the coast of the United Kingdom, or to 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." This gives the widest latitude for claiming jurisdiction over an indefinite extent of the marginal seas, because whatever is claimed will be justified by the assertion that the claim is included, by and is, international law.

Light is thrown on the Territorial Waters Jurisdiction Act by the statements made by the Lord Chancellor and by Lord Halsbury in the British House of Lords on May 6, 1895. At that time the House of Lords had under consideration the sea fisheries regulation bill for Scotland. It appears that the bill contained a provision authorizing the Secretary of Scotland to create a sea fishery district or districts including "any part of the sea adjoining Scotland," and empowering the Secretary of Scotland to prohibit certain types of fishing at any place within 18 miles of the coast. The official report of the debates shows the following:

The Lord Chancellor was far from saying that three miles was to be the limit of territorial waters for all time. Originally, the distance was, as the noble Marquess said, fixed by gunshot, and it was always said that the distance a gun could fire to was three miles. How far this principle was to be extended, or whether it was to be extended indefinitely, was a question for consideration, and it was a question which would not be without its difficulty. The distance mentioned by the noble Marquess had already been exceeded by a mile, a gun at Shoeburyness having reached a distance of 13 miles. This might not be the limit. If a gun reached 13 miles it might reach over 20, and then there might be considerable difficulty with a country whose coast was not distant.

Lord Halsbury would like to mention that the question was treated of in an Act which he had the honour to pass through the House of Commons in 1878. The difficulty was overcome in that Act, which was the 41 & 42 Vict., cap. 73. In that Act they took care to specially avoid any measurements. The distance was left at such limit as was necessary for the defence of the Realm. Then the exact limit was given for the particular purpose in view. (Parliamentary Debates, 58 Vict., vol. 33, p. 504.)

The statements by Lord Chancellor and Lord Halsbury are entirely supported by the preamble of the Territorial Waters Jurisdiction Act wherein jurisdiction was asserted "over the open seas" of the United Kingdom and of the dominions "to such a distance as is necessary for the defense and security" of the Realm. This is in harmony with the views of eminent Vattel, who, writing in the middle of the eighteenth century, in his "Law of Nations" p. 178, says: "The dominion of the state over the neighboring sea extends as far as her safety renders it necessary and her power is able to assert it."

So it is evident that even in 1878 when Great Britain through act of Parliament was giving limited and qualified adherence to the rule of 3-mile limit, that nation did not abandon the general and universally accepted doctrine that every nation had a right to claim jurisdiction over adjacent seas to such limit was necessary for defense of the realm. This is in harmony with the statement made by Mr. Root, above quoted, wherein he observed that the sovereign of the land washed by the sea has a right to protect its citizens against attack and invasion, to protect their health, their revenues, and their industries. While Mr. Root's argument proceeded generally upon the assumption that the 3-mile limit rule prevailed, the reason which supported his argument absolutely rejects any adherence to a 3-mile jurisdictional limit in every case and for every purpose.

THE POSITIONS OF OUR GOVERNMENT

The Government of the United States has generally supported the 3-mile limit rule. Again it must be confessed that our Government observed or departed from the rule when it was deemed advantageous so to do. In the early days of the Nation the general view of the

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United States with respect to jurisdiction over the marginal seas was expressed by Mr. Jefferson, then Secretary of State under Washington, to Mr. Hammond, the British Minister, in a letter dated November 8, 1793, wherein the Secretary referred to the different opinions and claims that had been heretofore advanced with relation to the subject and observed that the greatest distance to which any responsible assent among nations had been given at any time, was the limit of the human sight estimated at upwards of 20 miles and the smallest distance claimed by any nation whatever was the utmost range of a cannon ball, usually stated at one sea league. The Secretary's views, which undoubtedly had the concurrence of President Washington, are so important that they are quoted from Moore's Digest of International Law, vol. 1, pages 702-703, as follows:

The President of the United States, thinking that, before it shall be finally decided to what distance from our seashores the territorial protection of the United States shall be exercised, it will be proper to enter into friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts, and relying that convenient occasions may be taken for these hereafter, finds it necessary in the meantime to fix provisionally on some distance for the present government of these questions. You are sensible that very different opinions and claims have been heretofore advanced on this subject. The greatest distance to which any respectable assent among nations has been at any time given, has been the extent of the human sight, estimated at upwards of twenty miles, and the smallest distance, I believe, claimed by any nation whatever, is the utmost range of a cannon ball, usually stated at one sea league. Some intermediate distances have also been insisted on, and that of three sea leagues has some authority in its favor. The character of our coast, remarkable in considerable parts of it for admitting no vessels of size to pass near the shores, would entitle us, in reason, to as broad a margin of protected navigation as any nation whatever. Reserving, however, the ultimate extent of this for future deliberation, the President gives instructions to the officers acting under his authority to consider those heretofore given them as restrained for the present to the distance of one sea league or three geographical miles from the seashores. This distance can admit of no opposition, as it is recognized by treaties between some of the powers with whom we are connected in commerce and navigation, and is as little, or less, than is claimed by any of them on their own coasts.

For the jurisdiction of the rivers and bays of the United States, the laws of the several States are understood to have made provision, and they are, moreover, as being landlocked, within the body of the United States.

Mr. Jefferson, Secretary of State, to Mr. Hammond, British Minister Nov. 8, 1793, British Counter case and papers, Geneva Arbitration, American reprint, 553.

A similar note was sent on the same day to M. Genet, the French Minister (Am. State Papers, For. Rel. 1, 183; Wait's Am. State Papers I, 195).

Corresponding instructions were given to the district attorneys, Nov. 10, 1793. (MS. Dom. Let.)

See, also, circular of Mr. Hamilton, Secretary of the Treasury, to collectors of customs, Feb. 10, 1794, Brit. Counter Case and Papers. Geneva Arbitration, Am. reprint, 568.

Later when Jefferson was President and John Quincy Adams was Vice President, other opinions were entertained, for we find in the Memoirs of J. Q. Adams as reported in Moore's "Digest of International Law," volume 1, page 703, the following:

The President (Mr. Jefferson, in an informal conversation) mentioned a late act of hostility committed by a French privateer near Charleston, S. C., and said we ought to assume, as a principle, that the neutrality of our territory should extend to the Gulf Stream, which was a natural boundary, and within which we ought not to suffer any hostility to be committed. Mr. Gaillard observed that