territory. This power is the same in peace and in war, and is exercised according to the discretion of the sovereign. The prohibition and penalty are the same on French and foreign vessels.

The case is a curious one in several respects: the vessel was seized at a distance from shore far beyond that authorized in the French law; it was brought into a Spanish port and there sold with the cargo; the cargo was taken to Charleston, S. C., and libeled; thereafter proceedings for condemnation were brought in the French court and condemnation was had, although in the absence of the vessel and her cargo.

The opinions of the several Justices also show an unusual situation: The Chief Justice gave the opinion, and it was concurred in by Justices Livingstone, Cushington, and Chase, but upon the ground only that "the Sarah and her cargo were condemned by a French tribunal sitting at Santo Domingo, without having been carried into that or any other French port, and while lying in the port of Charleston, S. C., whither they had been carried, by and with the consent of the captor.' Justice Johnson dissented, and in his dissenting opinion discussed at some length the question of international law involved. In view of what happened later in another case, it seems worth while to quote a part of Justice Johnson's opinion since that evidently appears to have been the doctrine finally adopted:

Upon these considerations, I have adopted the opinion, that we are not at liberty to enter into the inquiry, whether the capture of the Sarah was made in pursuance of belligerent or municipal rights. But if we are to enter into the inquiry, I am of opinion, that the evidence before us plainly makes out a case of belligerent capture; and, though not so, that the capture may be justified, although for the breach of a municipal law.

In support of my latter position, both principle and the practice of Great Britain and our own government may be appealed to. The ocean is the common jurisdiction of all sovereign powers; from which it does not result that their powers upon the ocean exist in a state of suspension or equipoise, but that every power is at liberty, upon the ocean, to exercise its sovereign right, provided it does no act inconsistent with that general equality of nations which exists upon the ocean. The seizure of a ship upon the high seas after she has committed an act of forfeiture within a territory is not inconsistent with the sovereign rights of the nation to which she belongs, because it is the law of reason and the general understanding of nations that the offending individual forfeits his claim to protection, and every nation is the legal avenger of its own wrongs. Within their jurisdictional limits the rights of sovereignty are exclusive; upon the ocean they are concurrent. Whatever the great principle of self-defence in its reasonable and necessary exercise will sanction in an individual in a state of nature, nations may lawfully perform upon the ocean. This principle, as well as most others, may be carried to an unreasonable extent; it may be made the pretence instead of the real ground of aggression, and then it will become a just cause of war. contend only for its reasonable exercise.

I

The act of Great Britain (of the 24 Geo. III., c. 47) is predicated upon these principles. It subjects vessels to seizure, which approach with certain cargoes on board, within the distance of four leagues of her coast, because it would be difficult if not impossible, to execute her trade laws, if they were suffered to approach nearer in the prosecution of an illicit design. But if they have been within that distance, they are afterwards subject to be seized on the high seas. They have then violated her laws, and have forfeited the protection of their sovereign. The laws of the United States upon the subject of trade, appear to have been framed in some measure after the model of the English statutes; and the 29th section of the act of 1799, expressly authorizes the seizure of a vessel that has, within the jurisdiction of the United States, committed an act of forfeiture, wherever she may be met with, by a revenue cutter, without limiting the distance from the coast. So also, the act of 1806, for prohibiting the importation of slaves, authorizes a seizure, beyond our jurisdictional limits, if the vessel be found with slaves on board, hovering on the coast; a latitude of expression that can only be limited

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by circumstances, and the discretion of a court, and in case of fresh pursuit, would be actually without limitation. Indeed, after passing the jurisdictional limits of a state, a vessel is as much on the high seas, as if in the middle of the ocean; and if France could authorize a seizure at the distance of two leagues, she could at the distance of twenty (4 Cranch 287).

HUDSON V. GUESTIER (4 CRANCH 293, 1808; 6 CRANCH 280, 1810)

The third case is that of Hudson v. Guestier. In this case there were two trials and two appeals to the Supreme Court.

A vessel had been seized 6 leagues from shore for violating a municipal law of France which prohibited trade with colonies in revolt. Her cargo, which was at Barcoa, a Spanish port, had been condemned by a French tribunal at Guadaloupe and sold to the defendant, against whom this action of trover was brought. It was held that this sale was valid. Upon the first appeal, Chief Justice Marshall in his opinion says that the vessel and cargo "were seized within the territorial jurisdiction of the government of St. Domingo," but it is not clear what is meant by the term "territorial jurisdiction," for it seems certain from the opinion of Justice Livingstone on the second appeal to the Supreme Court after the second trial that the vessel was seized more than 2 leagues from the coast (6 Cr. 283).

One of the principal questions presented to the Court was whether the captor lost jurisdiction over the captured vessel because it was carried into a Spanish port. In this connection and on the general principles involved, Chief Justice Marshall said:

The seizure was indisuptably a valid seizure, and vested the lawful possession of the vessel in the sovereign of the captor. The right consequently existed in full force, to apply immediately to the proper tribunals for an examination of, and decision on, the offence alleged to have been committed. The jurisdiction of those tribunals had attached, and this right to decide upon the offence was complete.

When a seizure is thus made, for the violation of a municipal law, the mode of proceeding must be exclusively regulated by the soverign power of the country and no foreign court is at liberty to question the correctness of what is done, unless the court passing the sentence loses its jurisdiction by some circumstance which the law of nations can notice. Re-capture, escape, or a voluntary discharge of the captured vessel, would be such a circumstance, because the sovereign would be thereby deprived of the possession of the thing, and of his power over it. While this possession remains, the res may be either restored or sold, the sentence of the court can be executed, and, therefore, this possession seems to be the essential fact on which the jurisdiction of the court depends (4 Cranch 293–294).

It is to be observed that the Justices Chase and Livingstone dissented from the opinion of the Court, because the vessel was not brought into any port of France for trial but was carried into a Spanish port and while lying there was condemned as forfeited by a French tribunal sitting at Guadaloupe.

Justice Johnson concurred in the main opinion, reiterating his dissenting opinion in the case of Rose v. Himely, supra.

Upon the second appeal the opinion was given by Justice Livingstone who pointed out, as above stated, that the vessel was taken more than 2 leagues from shore. The Court, however, did not depart from the principle laid down on the first appeal.

We find at the end of the opinion in the second case (6 Cr. 285) an observation by Chief Justice Marshall referring to the case of Rose v. Himely, which reads as follows:

Marshall, Ch. J., observed that he had supposed that the former opinion delivered in these cases upon this point had been concurred in by four judges. But in this he was mistaken. The opinion was concurred in by one judge.

He was still of opinion that the construction then given was correct; he understood the expression "en sortant", in the arrete, as confining the case of vessels coming out, to vessels taken in the act of coming out. If it included vessels captured on the return-voyage, he should concur in the opinion now delivered. However, the principle of that case (Rose v. Himely) is now overruled (6 Cranch, 285).

It is evident that the Chief Justice refers to that part of his opinion in the case of Rose v. Himely wherein he had differed with some of the other Justices as to the power of seizure of vessels upon the high

seas.

Full consideration of the three cases discussed, indicates that when the Court had finally disposed of the case of Hudson v. Guestier, which was last in order of time (1810), the doctrine of the Court first so firmly in the case of Church v. Hubbart in 1804 had not been modified or impaired.

THE ANTELOPE (10 WHEATON, 66-123)

The case involved the seizure by a United States revenue cutter of a foreign ship having on board a number of Africans, probably intended to be sold as slaves.

It is evident from the statement of facts and from the opinion of Chief Justice Marshall that there was no proof that the vessel had violated our municipal laws. On his particular question the Chief Justice said:

If it be neither repugnant to the law of nations, nor piracy, it is almost superflous to say, in this court, that the right of bringing in for adjudication, in time of peace, even where the vessel belongs to a nation which has prohibited the trade, cannot exist. The courts of no country execute the penal laws of another; and the course of the American government, on the subject of visitation and search, would decide any case in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating our municipal laws, against the captors. It follows that a foreign vessel engaged in the African slave-trade, captured on the high seas, in time of peace, by an American cruiser, and brought in for adjudication, would be restored.

It seems evident that in the event a violation of our municipal laws had been found, even though those laws provided for seizures more than three, or even more than 12 miles from our shores, the seizure would have been sustained. The decision is valuable in that it points out the unlawfulness of the seizure of a foreign vessel upon the high seas where there is neither a violation of the law of nations nor of municipal law.

MANCHESTER V. MASSACHUSETTS (139 U. S. 240, 1891)

An act of the Legislature of the Commonwealth of Massachusetts prohibited fishing with certain types of gear "anywhere in the waters of Buzzard's Bay within the jurisdiction of this Commonwealth.” Under this statute one Arthur Manchester was charged and convicted of fishing in Buzzard's Bay, in violation of the law, within about 1 miles from shore. The question was whether the State of Massachusetts had jurisdiction over the waters adjoining its shores. Supreme Court held that it had jurisdiction, and that the law in question was valid in the absence of any affirmative action of Congress assuming control of the fisheries in those waters. Reference was made to the distance to which jurisdiction might lawfully be exercised over marginal waters and the Court held that under the law of nations it

The

was conceded that the control of fisheries to the extent of at least a marine league from the shore belongs to the nation on whose coast the fisheries are prosecuted. In the course of its opinion the Court said:

On this branch of the subject the case of The Queen v. Keyn (2 Ex. D. 63) is cited for the plaintiff in error, but there the question was not as to the extent of the dominion of Great Britain over the open sea adjacent to the coast, but only as to the extent of the existing jurisdiction of the Court of Admiralty in England over offences committed on the open sea; and the decision had nothing to do with the right of control over fisheries in the open sea or in bays or arms of the sea. In all the cases cited in the opinions delivered in The Queen v. Keyn, wherever the question of the right of fishery is referred to, it is conceded that the control of fisheries, to the extent of at least a marine league from the shore, belongs to the nation on whose coast the fisheries are prosecuted.

In Direct U. S. Cable Co. v. Anglo-American Tel. Co. (2 App. Cas. 394) it became necessary for the Privy Council to determine whether a point in Conception Bay, Newfoundland, more than three miles from the shore, was a part of the territory of Newfoundland, and within the jurisdiction of its legislature. The average width of the bay was about fifteen miles, and the distance between its headlands was rather more than twenty miles; but it was held that Conception Bay was a part of the territory of Newfoundland, because the British government had exercised exclusive dominion over it, with the acquiescence of other nations, and it had been declared by act of Parliament "to be part of the British territory, and part of the country made subject to the legislature of Newfoundland.”

We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast; that bays wholly within its territory not exceeding two marine leagues in width at the mouth are within this limit; and that included in this territorial jurisdiction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free-moving fish, or fish attached to or embedded in the soil. The open sea within this limit is, of course, subject to the common right of navigation; and all governments, for the purpose of self-protection, in time of war or for the prevention of frauds on its revenue, exercise an authority beyond this limit. (Gould on Waters, pt. 1, c. 1, 1-17, and notes; Neill v. Duke of Devonshire, 8 App. Cas. 135: Gammell v. Commissioners, 3 Macq 419; Mowat v. McFee, 5 Sup. Ct. of Canada, 66; The Queen v. Cubitt, 22 Q. B. D. 622; St. 46 and 47 Vict. c. 22 (pp. 257-258).)

CUNARD STEAMSHIP CO. v. MELLON (262 U. S. 100, 1923)

Suits were brought by the Cunard Steamship Co. and other steamship companies operating passenger ships between the United States ports and foreign ports to enjoin threatened application of certain provisions of the National Prohibition Act. It was contended by the companies that they had the right to carry on their ships into American waters alcoholic liquors as part of their sea stores and particularly for the customary use of the crew. At first this was permitted under administrative regulations of the Bureau of Internal Revenue, provided the liquors were kept under seal while the vessels were in ports of the United States, but on October 6, 1922, the Attorney General of the United States gave an opinion to the effect that the National Prohibition Act, construed in connection with the eighteenth amendment to the Constitution, made it unlawful for any ship, whether domestic or foreign, to bring into territorial waters of the United States, or to carry while within such waters, intoxicating liquors for beverage purposes whether as sea stores or cargo. The eighteenth amendment prohibited the manufacture, sale, or transportation of intoxicating liquor within, the importation thereof into, and the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes. One of the questions involved was as to the meaning of the word "territory" in the phrase "the United States and all territory subject to the juris

diction thereof." The Supreme Court speak ng through Justice Van Devanter held that the territory subject to the jurisdiction of the United States included the land area and the marginal seas extending outward for the distance of 3 miles. The language used by the court in this connection being as follows:

Various meanings are sought to be attributed to the term "territory" in the phrase "the United States and all territory subject to the jurisdiction thereof." We are of the opinion that it means the regional areas of land and adjacent waters over which the United States claims and exercises dominion and control as a sovereign power. The immediate context and the purport of the entire section show that the term is used in a physical and not a metaphorical sensethat it refers to areas or districts having fixity of location and recognized boundaries. (See United States v. Bevans, 3 Wheat. 336, 390.)

It is now settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays, and other enclosed arms of the sea along its coast and a marginal belt of the sea extending from the coast line outward a marine league, or three geographical miles (Church v. Hubbart, 2 Cranch, 187, 234; The Ann. 1 Fed. Cas., p. 926; United States v. Smiley, 27 Fed. Cas., p. 1132; Manchester v. Massachusetts, 139 U. S. 240, 257-258; Louisiana v. Mississippi, 202 U. S. 1, 52; 1 Kent's Com. 12th ed., 29; 1 Moore International Law Digest, 145; 1 Hyde International Law, sec. 141, 142, 154; Wilson International Law, 8th ed., sec. 54; Westlake International Law, 2d ed., p. 187 et. seq; Wheaton International Law, 5th Eng. ed. (Phillipson), p. 282; 1 Oppenheim International Law, 3d ed., sec. 185-189, 252). This, we hold, is the territory which the Amendment designates as its field of operation; and the designation is not of a part of this territory but of "all" of it. In this case the Court departed from the language used in the case of Manchester v. Massachusetts (139 Y. S. 240). In the Manchester case the Court said that under the law of nations the marginal seas extended to "at least" a distance of 3 miles from shore, but in the Cunard Steamship Co. case no minimum distance was stated and the assertion was made that the territorial seas extended outward a distance of 3 miles. It is evident, however, from the briefs as well as from the opinion that the legal representatives of the companies and the law officials of the United States agreed, at least for the purpose of the litigation, that the territorial seas extended a distance of 3 miles from shore. The point as to whether under certain conditions a more extensive jurisdiction might be exercised was not involved. The companies were concerned only in being able to bring liquor on their ships within waters which were admittedly and beyond dispute the territorial waters of the United States. While the Attorney General and his assistants urged that under the eighteenth amendment and the National Prohibition Act intoxicating liquors for beverage purposes could not be brought within territorial waters. The extent of the territorial waters is immaterial and, therefore, the language of the Court saying that the limit of territorial waters is 3 miles is not conclusive of the question.

ARCH ET AL. v. UNITED STATES (13 FED. 2D 382, C. C. A., 5TH CIRCUIT, 1926)

The case arose upon the seizure, condemnation, and forfeiture of the British vessel Island Home and her cargo of intoxicating liquor. The ship was seized within 12 miles, but more than 3 miles, from the coast.

It was contended by the owners that the seizure was illegal because it was made beyond the 3-mile limit; that the vessel could not be considered as having come to the United States and so was not required