portion of the boundary which runs southerly through the middle of Chap. IV. the channel separating Vancouver's Island from the Continent, and of Fuca Straits to the Pacific Ocean, were unable to agree, provides "that the respective claims of the government of Her Britannic Majesty, and the government of the United States, shall be submitted to the arbitration and award of His Majesty the Emperor of Germany, who, having regard to the above-mentioned Article of the said Treaty, shall decide thereupon finally, and without appeal, which of these claims is most in accordance with the true interpretation of the Treaty of June 15, 1846" (m). Great Britain contended that the boundary line should be run through the Rosario Strait, while the United States asserted that it should be run through the Canal de Haro. The position of the boundary was a matter of considerable importance, not only in assigning several islands to the successful party, but also in settling the rights of ownership over the navigable channels between Vancouver's Island and the mainland. The whole question turned upon the interpretation to be put on the existing treaties. Cases and counter cases were submitted by each government to the Emperor of Germany, and on the 21st October, 1872, His Imperial Majesty awarded that "The claim of the government of the United States, viz., that the line of boundary between the dominions of Her Britannic Majesty and the United States should be run through the Canal of Haro, is most in accordance with the true interpretation of the Treaty" of 1846 (n). on the § 176a. In 1885, the powers assembled at the Conference of Berlin, that is, Occupations all the maritime States of Europe and the United States (o), being African coast. desirous to obviate the misunderstanding and disputes which might in future arise from new acts of occupation on the coast of Africa, discussed and adopted a declaration introducing into international relations certain uniform rules with reference to future occupations of that coast. Any power taking possession of a tract of land outside any possessions it had before is to give notice to the other Signatory Powers, in order to enable them, if need be, to make good any claims of their own; and the Signatory Powers recognize the obligation to insure the establishment of authority in the regions occupied by them on the coasts of the African continent sufficient to protect existing rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon in the General Act (p). $177. The maritime territory of every State extends to the Maritime ports, harbours, bays, mouths of rivers, and adjacent jurisdiction. (m) Parl. Papers, N. America, No. 3 (1873), p. 1, see Appendix E. (n) Parl. Papers, N. America, No. 9 (1873), p. 3. See Cusling, The Treaty of Washington, p. 203. (0) As to the position of the U. S. A., see § 67a, ante. (p) Arts. 34, 35. Hertslet, Map of Africa by Treaty, p. 20; for notifications under Art. 35, see ibid. pp. 10. 47, 315, 327, 358, 772, 811, 1016, 1068, 1069. territorial Part II. parts of the sea enclosed by headlands belonging to the same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation (9). § 177a. The Case of The Franconia. § 177b. Territorial Waters Jurisdiction Act, 1878. The extent and nature of the jurisdiction of a State over its territorial waters has been much discussed of late. In the well-known case of The Franconia the Court held that it had no jurisdiction over a criminal offence committed by a foreigner on board a foreign ship which was on the open sea but within three miles of the coast of England. The difficulty and doubt surrounding the question is shown by the fact that of the fourteen judges who attended during the arguments in The Franconia seven pronounced against the jurisdiction, while six claimed it. One who agreed with the majority died before judgment was delivered (r). The decision, therefore, could not be considered as altogether satisfactory, and the question has now been set at rest, as far as English law is concerned, by an Act of Parliament known as the Territorial Waters Jurisdiction Act, 1878 (s). By this Act, after reciting 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 of all other parts of Her Majesty's dominions to such distance as is necessary for the defence and security of such dominions" (t), it is enacted (amongst other things) that, "An offence committed by a person, whether he is or is not a subject of Her Majesty, on the open sea within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly." "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 (2) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 3, § x. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 8. De Dominio Maris, cap. 2. Vattel, liv. i. ch. 23, 289. Valin, Comm. sur l'Ordonnance de la Marine, liv. v. tit. 1. Azuni, Diritto Marit. pt. i. cap. 2, art. 3, 15. Galiani, dei Doveri dei Principi Neutrali in Tempo de Guerra, liv. i. Life and Works of Sir L. Jenkins, vol. ii. p. 780. (r) R. v. Keyn (The Franconia), 2 Ex. D. 63. (s) 41 & 42 Vict. c. 73. (t) See Reg. v. Dudley, 14 Q. B. D. 273, 281, per Lord Coleridge, L. C. J. Admiral, any part of the open sea within one marine league of the Chap. IV. coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." belt. § 177c. Other States may in time adopt a similar course, and claim as their Extension of own the three-mile belt of sea for all purposes of jurisdiction, and three-mile it is not improbable that in course of time the limit may be extended still further. Spain has, on more than one occasion, put forward a claim to exercise maritime jurisdiction at a distance of two leagues, or six nautical miles from the Spanish coast. Other nations have, however, resisted this claim. In 1874, Lord Derby intimated to the Spanish government that their pretensions would not be submitted to by Great Britain, and that any attempt to carry them out would lead to very serious consequences (u). Mr. Fish also stated, on the part of the United States government, "We have always understood and asserted that, pursuant to public law, no nation can rightfully claim jurisdiction at sea beyond a marine league from its coast" (x). The extent of territorial waters was incidentally a disputed point before the Suez Canal Commission which sat at Paris in 1885. The original draft of Article V. of the Convention read "in the territorial waters of Egypt," for which the British amendment of three marine miles from the ports of access of the canal was afterwards substituted. Commenting on this amendment M. de Freycinet wrote, "This limit,” namely, three marine miles, "is borrowed from the traditions of international law; nevertheless, it should be observed that at the time when this limit was established, and when it came into usage, it represented approximately cannon range. Since then, the range of cannon having increased, it would be natural to extend proportionately the zone of territorial waters." But the French government, willing to be conciliatory, waived their contention (y). $178. shore. The term "coasts" includes the natural appendages Extent of the of the territory which rise out of the water, although term coasts or these islands are not of sufficient firmness to be inhabited or fortified; but it does not properly comprehend all the shoals which form sunken continuations of the land perpetually covered with water. The rule of law on this subject is terræ dominium ubi finitur armorum vis; and since the introduction of firearms, that distance has (u) Lord Derby to Mr. Watson, 25th Dec. 1874; U. S. Dipl. Cor. 1875, p. 641. (x) U. S. Dipl. Cor. 1875, p. 649; Wharton, Dig. § 32. (y) Parl. Papers, Egypt, No. 1 (1888), infra, § 205d. A majority of the Insti- Part II. usually been recognized to be about three miles from the shore. In a case before Sir W. Scott (Lord Stowell) respecting the legality of a capture alleged to be made within the neutral territory of the United States, at the mouth of the river Mississippi, a question arose as to what was to be deemed the shore, since there are a number of little mud islands, composed of earth and trees drifted down by the river, which form a kind of portico to the main land. It was contended that these were not to be considered as any part of the American territory-that they were a sort of "no man's land," not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. It was argued that the line of territory was to be taken only from the Balize, which is a fort raised on made land by the former Spanish possessors. But the learned judge was of a different opinion, and determined that the protection of the territory was to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which indeed they were formed. Their elements were derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in the books of law, Quod vis fluminis de tuo prædio detraxerit, et vicino prædio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Whether they were composed of earth or solid rock would not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil (z). § 179. The King's Chambers. The exclusive territorial jurisdiction of the British crown over the enclosed parts of the sea along the coasts of the island of Great Britain has immemorially extended to those bays called the King's Chambers; i.e., 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 (2) The Anna, 5 C. Rob. 385 (c). and other bays and estuaries forming portions of their Chap. IV. territory. It appears from Sir Leoline Jenkins, that both in the reigns of James I. and of 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 coasts and harbours 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 transhipped within that distance without payment of duties. A 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 (a). § 179a. The British "Hovering Act" has been long since repealed. The Customs legislation at present Customs legislation makes a distinction as regards the extent the present of jurisdiction claimed for revenue purposes, between ships belonging time. to British subjects and ships belonging to foreigners. Thus it is now enacted that "If any ship or boat shall be found or discovered to have been within any port, bay, harbour, river, or creek of the United Kingdom, or the Channel Islands, or within three leagues of the coast thereof, if belonging wholly or in part to British subjects, or having half the persons on board subjects of Her Majesty, or within one league if not British, having false bulkheads, &c.," she shall be liable to forfeiture, or to be dealt with as the statute directs. The distinction is also maintained for individuals; thus every person found to have been on board a ship liable to forfeiture, "within three leagues of the coast if a British subject, or within one league if a foreigner," shall forfeit a sum not exceeding 1007. (b). Any officer of Customs may go on board any ship after clearance outwards within one league of the coast of the United Kingdom, and demand the (a) Life and Works of Sir L. Jenkins, vol. ii. pp. 727, 728, 780. Opinion of the United States Attorney-General on the capture of the British ship Grange in the Delaware Bay, 1793. Waite's American State Papers, vol. i. p. 75. Le Louis, 2 Dods. Ad. 245; Church v. (b) The Customs Consolidation Act, |