on a former occasion in Mr. Jefferson's correspondence with Genet, and by an act of Congress at that period, we had seemed only to claim the usual distance of three miles from the coast; but the President replied that he had then assumed that principle because Genet by his intemperance, forced us to fix on some point, and we were not then prepared to assert the claim of jurisdiction to the extent we are in reason entitled to; but he had taken care to reserve this subject for further consideration with a view to this same doctrine for which he now contends. (Memoirs of J. Q. Adams, I, 375-376.)

The following of Hamilton also throws light on the subject:

As to the jurisdiction exercised by the United States over the sea contiguous to its shores, all nations claim and exercise such a jurisdiction, and all writers admit this claim to be well founded; and they have differed in opinion only as to the distance to which it may extend. Let us see whether France has claimed a greater or less extent of dominion over the sea than the United States. Valin, the King's advocate at Rochelle, in his new Commentary of the Marine Laws of France, published first in 1761, and again by approbation in 1776 (Book V, title I), after mentioning the opinions of many different writers on public law on this subject, says: "As far as the distance of two leagues the sea is the dominion of the sovereign of the neighboring coast; and that whether there be soundings there or not. It is proper to observe this method in favor of states whose coasts are so high that there are no soundings close to the shore, but this does not prevent the extension of the dominion of the sea, as well in respect to jurisdiction as to fisheries, to a greater distance by particular treaties, or the rule herein before mentioned, which extends dominion as far as there are soundings, or as far as the reach of a cannon shot; which is the rule at present universally acknowledged." "The effect of this dominion," the same author says, "according to the principles of Puffendorf, which are incontestable, is, that every sovereign has a right to protect foreign commerce, in his dominions, as well as to secure it from insult, by preventing others from approaching nearer than a certain distance.' In extending our dominion over the sea to one league, we have not extended it so far as the example of France and the other powers of Europe would have justified. They, therefore, can have no right to complain of our conduct in this respect. (Hamilton, in "The Answer," Hamilton's Works, Lodge's ed., V., 351–352.)

But even before Jefferson wrote on November 8, 1793, the Congress of the United States and the President had acted, for by the Customs Act of August 4, 1790 (1 Stat. 138) it was provided that vessels might be searched and seized for violation of customs laws "in any part of the United States or within 4 leagues of the coast thereof, if bound to the United States." This was the law of the land when Secretary of State Jefferson wrote to the British minister, Mr. Hammond and to the French Minister, M. Genet, on November 8, 1793, but in his communications Jefferson did not discuss questions of customs and, therefore did not refer to the act of August 4, 1790.

It is worthy of note that the principle of the act of August 4, 1790, has never been repealed but on the contrary has been strengthened and made broader in recent years. In section 581 of the Tariff Act of 1922 (42 Stat. 979) the scope of the act of August 4, 1790, was enlarged by providing for search and seizure of all vessels within the 4-league zone of the coast of the United States irrespective of whether such vessels were bound to the United States or not. That provision stood until the passage of the Tariff Act of 1930 (46 Stat. 747). Section 581 of the last mentioned act is substantially a reenactment with slight modifications of section 581 of the Tariff Act of 1922. Since section 581 of the Tariff Act of 1930 is the present existing law, it seems worthy of quotation, as follows:

Officers of the customs or of the Coast Guard, and agents or other persons authorized by the Secretary of the Treasury, or appointed for that purpose in writing by a collector may at any time go on board of any vessel or vehicle at any place in the United States or within four leagues of the coast of the United States, without as well as within their respective districts, to examine the manifest and to

inspect, search, and examine the vessel or vehicle, and every part thereof, and any person, trunk, or package on board, and to this end to hail and stop such vessel or vehicle, if under way, and use all necessary force to compel compliance, and if it shall appear that any breach or violation of the laws of the United States has been committed, whereby or in consequence of which such vessel or vehicle, or the merchandise, or any part thereof, on board of or imported by such vessel or vehicle is liable to forfeiture, it shall be the duty of such officer to make seizure of the same, and to arrest, or, in case of escape or attempted escape, to pursue and arrest any person engaged in such breach or violation.

Officers of the Department of Commerce and other persons authorized by such department may go on board of any vessel at any place in the United States or within four leagues of the coast of the United States and hail, stop, and board such vessels in the enforcement of the navigation laws and arrest or, in case of escape or attempted escape, pursue and arrest any person engaged in the breach or violation of the navigation laws. (Sec. 581, Tariff Act of 1930 (46 Stat. 747).)

Wheaton writing in 1815 throws light upon the position assumed by the United States Government. He accepts the cannon range principle, or as an alternative, a distance of 3 miles from shore. (A Digest of the Law of Maritime Captures or Prizes, New York, 1815, C. ii, p. 55.) He bases his view upon the decisions of the English Admiralty Court, and upon the writings of Vattel, Van Bynkershoek, Von Martens, and Asuni. In his treatise on the law of nations, first published in 1836 (Elements of International Law, c. iv., ss. 6-10), the same views are expressed, and he refers to Lord Stowell's observations wherein the latter quotes Van Bynkershoek's "terrae dominium finitur, ubi finitur armorum vis." Wheaton also refers to the jurisdiction by the King of Great Britain over the King's Chambers and says that a similar jurisdiction is asserted by the United States over Delaware Bay and other bays and estuaries forming a part of the territory. The following excerpt is of interest:

The exclusive territorial jurisdiction of the British Crown over the inclosed parts of the sea along the coast of the island of Great Britain, has immemorially extended to those bays called the King's Chambers; that is, portions of the sea cut off by lines drawn from one promontory to another. A similar jurisdiction is also asserted by the United States over the Delaware Bay, and other bays and estuaries forming portions of their territory. It appears from Sir Leoline Jenkins, that both in the reigns of James I and Charles II the security of British commerce was provided for, by express prohibitions against the roving or hovering of foreign ships of war so near the neutral coast and harbors of Great Britain as to disturb or threaten vessels homeward or outward bound; and that, captures by such foreign cruisers, even of their enemies' vessels, would be restored by the Court of Admiralty, if made within the King's Chambers. So, also, the British "Hovering Act" passed in 1736 (9 Geo. II. cap. 35), assumes, for certain revenue purposes, a jurisdiction of four leagues from the coasts, by prohibiting foreign goods to be transshipped within that distance without payment of duties. similar provision is contained in the revenue laws of the United States; and both these provisions have been declared, by judicial authority in each country, to be consistent with the law and usage of nations. (Sec. 179, Wheaton's "Elements of International Law," p. 216.)

A

Chancellor Kent, in his Commentaries on American Law (i, pt. I, Lect. ), expressed opinions somewhat different from those of Wheaton, but he points out the difficulty of laying down a hard and fast rule which will be applicable everywhere and he says "all that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league." Kent also says that the

jurisdiction of the sovereignty extends over all bays, gulfs, and estuaries.

UNITED STATES HOVERING ACTS

In the early years of the nineteenth century there was a great deal of smuggling of slaves from Africa into the United States, which was finally suppressed and entirely wiped out by the year 1827. This trade called for a special law which was passed and approved on March 2, 1807, and is to be found in volume II, Statutes at Large, pages 426-430, inclusive.

Section 7 of this act provides that if any ship or vessel shall be found in any river, port, bay, or harbor or on the high seas within the jurisdictional limits of the United States or hovering on the coast thereof having on board any Negro, mulatto, or person of color, for the purpose of selling them as slaves with intent to land the same at any port or place within the jurisdiction of the United States, every such ship or vessel shall be forfeited to the United States. Provision was made authorizing the President to consider such ships or vessels to be seized "wheresoever found on the high seas" and brought into any port of the United States for forfeiture. No reference was made in the act mentioned to any 3-mile limit or other territorial limit, and in fact, by the explicit provisions of the act, authority was given to seize the offending vessels "wheresoever found on the high seas." This statute with some modifications was reenacted as sections 5551 and 5559, inclusive, of the United States Revised Statutes and the provisions thereof have been carried forward and are now a part of the Criminal Code of the United States (title 18, secs. 421-422, inclusive, U. S. C.).

Hence, the old slave trade hovering act passed in 1807, as modified, is the law of the land today and under it a slave trader may be lawfully seized when "hovering on the coast of the United States" (title 18, secs. 426 and 433, U. S. C.).

Section 433 of title 18, United States Code, provides that "every vessel which is found in any river, port, bay or harbor, or on the high seas, within the jurisdiction of the United States, or hovering on the coasts thereof, and having on board any person, with the intent to sell such person as a slave, or with intent to land the same for that purpose, either in the United States or elsewhere, shall, together with her tackle, apparel, and furniture, and the goods and effects on board of her, be forfeited to the United States."

It will be observed that provision is made for forfeiture of vessels which are found on any waters within the jurisdiction of the United States and also for like forfeiture of vessels found "hovering on the coasts" of the United States whether within or without what may be ordinarily considered its territorial jurisdiction. It will be noted that the disjunctive "or" is used and not the conjunctive word "and" and so there can be no question of the intent of Congress to provide for seizure of slave traders both within and without the ordinary territorial waters of the United States. No other reasonable construction can be consigned to the particular language used. The original statute of March 2, 1807, expressly so provided in authorizing the seizure of offending vessels "wheresoever found on the high seas. So it will seem that from the very early days of our Government it was not considered sufficient that we accept or advocate a 3-mile limit

for all purposes and we find that with respect to customs of August 4, 1790, and by subsequent statutes, and with respect to slave trade by the act of March 2, 1807, the United States claimed in the one case a 12-mile jurisdictional limit for the protection of the customs, and in the other case a limit to which the bounds might be set only by the test of reason for the suppression of the slave trade. Hence, any argument that we have ever, from the beginning of our existence. as a nation until the present time, sought a general rigid 3-mile jurisdictional limit for all purposes is not in harmony with the known

facts.

Doubtless it was realized in 1807 with respect to the slave trade, as it is realized now in 1938 with respect to the great salmon fishery of Alaska, that a rigid 3-mile limit ignores our substantial national rights and that such a limit would make it impossible to provide adequately for national defense. It is obvious that the protection of a great industry may be just as important to the national welfare as the prevention of what must have been in any circumstance only a slight trickle of slaves from Africa to the United States.

THE ANTISMUGGLING ACT

Now we come to the one act of Congress which has gone further than any other to negative the idea that we are committed to a rigid 3-mile-limit rule for all purposes, and that is the act of August 5, 1935 (49 Stat. 517), commonly known as the Antismuggling Act. The title of the act is "An act to protect the revenue of the United States and provide measure for the more effective enforcement of the laws respecting the revenue, to prevent smuggling, to authorize customs-enforcement areas, and for other purposes."

The act contains a considerable number of amendments to the general customs laws of the United States but it embraces one new feature for it provides—and in this it is a model for the bill under consideration-wherever the President finds and declares that in any place or within any area on the high seas adjacent to, but outside customs waters, any vessel or vessels hovering or are being kept off the coast of the United States and that by virtue of the presence of any such vessel or vessels at such place or within such area, the unlawful introduction or removal into or from the United States of any merchandise or person is being or may be occasioned, promoted, or threatened, the place or area so found or declared shall constitute a customs-enforcement area for the purposes of the act; that such customs-enforcement areas may not extend more than 50 miles seaward beyond the customs waters, and the customs waters are defined as the waters within 4 leagues of the coast of the United States, or such other waters as may be prescribed by treaty within which the United States is authorized to board, examine, search, and seize vessels for violation of the laws of the United States.

Accordingly, we find in this recent declaration of the will of Congress and the Executive, authority for the search and seizure of vessels for violations or threatened violations of the customs at any place within 62 marine miles of the shores of the United States provided the President has declared a customs-enforcement area for the region within which any vessel hovers and is so searched and seized.

The history of the Antismuggling Act is worthy of passing comment. After the repeal of the eighteenth amendment and the National Pro

hibition Act, the country was temporarily flooded with alcohol and alcoholic liquors by maritime rum runners, which lay safely beyond the 12-mile limit, or beyond the 1-hour sailing distance prescribed by treaty. No adequate way was found of stopping this evil, and so the Treasury requested the passage of legislation. Hearings were had on the bill before the House Committee on Ways and Means and the bill was passed and has been enforced since the date of its passage, and its enforcement very speedily and effectively stopped the gross violations of our customs which had theretofore been committed. The law has not only worked and has been found highly efficacious, but it is of value in another direction for it temporarily at least has broken the thraldom to the 3-mile limit supersitition.

THE RUM TREATIES

Reference has been made to treaties between the United States and other nations for the protection of the customs in the waters adjacent to our coasts and particularly to prevent the smuggling into the United States of intoxicating liquors, entered into during the period of the life of the eighteenth amendment and of the National Prohibition Act and other kindred prohibitory acts.

We all recall the difficulty encountered in preventing the smuggling into the United States of intoxicating liquors by the vessels of foreign nationals, and it is not unfair to say that that smuggling appears to have been at least tacitly encouraged by several foreign governments. Singularly enough, our authorities apparently did not rely upon the four-league customs zone, established first by the act of August 4, 1790, and continued as we have seen by subsequent congressional legislation. At first, it was thought by our officials that foreign merchant vessels carrying on trade between the United States and other nations were not forbidden by the eighteenth amendment and the National Prohibition Act from carrying alcoholic liquors into our waters as ship stores for the use of the crew and for sale to passengers, provided that sales did not take place within 3 miles of our shores. In fact, at first the regulations of the Treasury required only that liquors upon such foreign vessels should be placed under seal when the vessels were in our ports or in our territorial waters. While this view prevailed, our State Department approached Great Britain with a view of securing an agreement or treaty under which Great Britain would make no objection to a search of their vessels which appeared to be rum runners within 12 miles of our coast. Evidently being unwilling to give up the lucrative rum-smuggling trade, Great Britain refused to entertain any such proposal because, as was said by their representative, the British Government "do not feel that they can properly acquiesce, in order to meet a temporary emergency, in the abandonment of a principle to which they attach great importance" (Masterson 231). So spoke the British Government on October 13, 1922.

A decision by the Supreme Court of the United States shortly thereafter had the effect of placing the United States Government in an advantageous position with regard to the treaty which it was urging. In the case of Cunard Steamship Co. v. Mellon (262 U. S. 100), decided on April 30, 1923, which will be hereinafter referred to at length, the Supreme Court held that foreign as well as domestic vessels were equally bound by the provisions of the eighteenth amendment and