Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 2, 1878

No. 169.
Mr. Welsh to Mr. Evarts.

Legation of the United States,
London, February 16, 1878. (Received March 2.)

No. 32.]

Sir: I have the honor to inclose a report from the Times of a discussion in the House of Lords, on the 14th instant, upon the question involved in the Franconia case, and beg to ask your attention to a speech by Lord Cairns upon introducing a bill which states the jurisdiction of the Crown over the territorial waters of the empire in a broader sense than that limited by the judgment in the case just mentioned.

I have, &c.,

JOHN WELSH.

[Inclosure in No. 32.]

territorial waters of the empire.

[From the London Times of the 15th of February, 1878.]

The lord chancellor arose to call the attention of the house to the question of the jurisdiction of the Crown in the territorial waters of the empire, more especially with reference to the recent case of the Franconia, and to present a bill on the subject. The jurisdiction to which he had to call attention was not over rivers, bays, or harbors, because, in respect of that, no controversy had ever arisen; but the jurisdiction over the territorial waters in that belt or zone of the high seas which more or less surrounded the shores of the empire. This, at first sight, would appear to be a question of law. No doubt it was a question of law, but he rather thought of that which had been described as the first law of nature—the law of self-preservation. It was necessary, to some extent and in some measure, that there should be a territorial jurisdiction over the high seas surrounding the seaboard. No empire which had a seaboard could be allowed to remain without a jurisdiction of that kind. If, in the case of such an empire, it was held that the jurisdiction of the kingdom ended with the dry land, the consequence would be that the subjects of that kingdom in the presence of foreigners would be absolutely without defense from the moment they entered the sea for the purpose of bathing or fishing or for any other purpose. Not only so, but when on dry land they would be without a protection, because, if no jurisdiction from the land extended to the sea surrounding the seaboard, people from all parts of the world might come to the part of the high sea contiguous to the land and resort to practices which might be of the most serious character to people on shore.

So, again, in the case of war, hostilities carried on by belligerents outside the shore might expose a neutral power to the greatest danger. It might be asked whether the question was not solved, so far, at all events, as to the low-water mark to which unquestionably the territorial jurisdiction extended. With regard to the low-water mark it must be remembered that there were parts of the coast where there were considerable intervals between high and low water mark; and, also, that there was in the kingdom, as their lordships knew, many places where the sea came so close to the cliffs that there was absolutely no horizontal interval between high and low water marks. It had been suggested, or might be suggested, that if the jurisdiction of this country extended over the part of the high seas immediately adjoining the shore, inasmuch as the right of passage over that part was allowed to foreign ships, it would be unfair to claim such a jurisdiction against them. He was quite willing to accede the right of passage contended for, but he had imagined that it was to be conceded on this footing and this footing only—that those who availed themselves of the right of passage should not expose themselves to any complaint of a violation of the rights of those by whom the right of passage was conceded. In truth, any such exemption would apply to the case of foreign ships coming into one of our bays. What made it necessary for him to bring this matter under the notice of their lordships was a case of considerable interest—that of the collision between the Franconia and Strathclyde off Dover, by which a number of persons lost their lives. The Franconia was a German ship, and her master was put on his trial for the manslaughter of one of the passengers of the Strathclyde. He was found guilty, and there was no doubt that the case was one of manslaughter according to our law. The case was fully proved, and the jury returned a verdict of guilty. But objection was taken on the trial that the accused master being a foreigner, and he having been on board a foreign ship at the time the alleged offense was committed, although that ship was then within two miles and a half of our land, there was no jurisdiction in our courts, and the verdict must he quashed. That point came before the court for Crown cases reserved, and there was a difference of opinion on the question between the learned judges. They were thirteen in number. Six of the learned judges thought that the judgment should be maintained, and seven thought that it ought to be quashed. There was a majority of one for the latter view, and the conviction was accordingly quashed. The minority was Lord Chief Justice Coleridge, Lord Justice Brett, Lord Justice Amphlett, Mr. Justice Lindley, Mr. Justice Grove, and Mr. Justice Denman. The majority was the Lord Chief Justice, the Lord Chief Baron, Sir R. Phillimore, Lord Justice Bramwell, Mr. Justice Lush, Baron Pollock, and Mr. Justice Field. It was a peculiarity of our jurisprudence that in such cases the question of law had to be searched for and elicited from expressions used by learned judges in judgments differing from each other and not always in such terms as to state exactly the principle of law which the judges wished to affirm. He would endeavor to explain what he understood to be the main ground of the judgment of the majority of the judges in the Franconia case. But before he did so there was an incident which he wished to mention to their lordships. One of the learned judges, for whom they all had the greatest respect, and whose judgment, from his experience in criminal cases, was of the greatest weight—Mr. Justice Lush—stated that though he concurred with the lord chief justice in that learned judge’s view of the case, yet he wished to guard himself in this particular case with respect to the limits of the high seas. He said:

“I wish to guard myself from being supposed to adopt any words or expressions which may seem to imply a doubt as to the competency of Parliament to legislate as it may think fit for these waters. I think that usage and the common consent of nations, which constitute international law, have appropriated these waters to the adjacent state to deal with them as the state may deem expedient for its own interests. They are therefore, in the language of diplomacy and of international law, termed by a convenient metaphor the territorial waters of Great Britain, and the same or equivalent phrases are used in some of our statutes, denoting that this belt of sea is under the exclusive dominion of the state. But the dominion is the dominion of Parliament, not the dominion of the common law. * * * Therefore, although as between nation and nation these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must, in my judgment, be authorized by an act of Parliament.”

As he understood these words, if Sir Robert Lush had found that in the particular place Parliament had stepped in and said that portion of the water was part of the United Kingdom, he would have been of opinion that the Crown had territorial jurisdiction over it, and the conviction ought not to be quashed. It was fortunate for the prisoner in the Franconia case, though not fortunate for the vindication of the law, that Mr. Justice Lush was under the impression that that had not been done which really had been done. It appeared that in an act of 1848, for the regulation of customs, there was a provision authorizing the lords of the treasury to establish ports in many places where ports were required and to define their limits. Under that provision the lords of the treasury issued a warrant, which was inserted in the London Gazette of the 3d of March, 1848. In that warrant were these paragraphs:

“That the limits of the port of Dover shall commence at St. Margaret’s Bay aforesaid, and continue along the said coast of Kent to Copt Point in the said county. That the limits of the port of Folkestone shall commence at Copt Point aforesaid, and continue along the coast to Dungeness, in the said county.”

“And we, the said commissioners of Her Majesty’s treasury, do further declare that the limits seaward of the said ports shall extend to a distance of three miles from low-water mark out to sea, and that the limits of such ports shall include all islands, bays, harbors, rivers, and creeks within the same respectively.”

So that under Parliamentary powers the proper authorities had declared long before the Franconia case that the limits of the port of Dover extended three miles out to sea. We understood the view of the majority of the judges to be this, that there was one jurisdiction by land and the other by sea; that the jurisdiction by land was one limited by the limits of counties, taking into the county the low-water mark, and the harbors and rivers within the county; and the jurisdiction by sea, the old jurisdiction of the lord high admiral, now exercised by the central criminal court; that the jurisdiction of the lord high admiral extended to the high seas, but the persons over whom it was exercised must be British subjects, not foreigners; and that the central criminal court had no jurisdiction over the persons of foreigners beyond the low-water mark. That he understood to be the common ground on which the majority of the judges acted in quashing the conviction; and taking that as the ratio decidendi of the judges in a decision which he accepted, it would at first sight appear that there was nothing more for him to do than to ask the favorable consideration of their lordships of a bill to amend the law; but there fell some observations from Sir Robert Phillimore, the lord chief baron, and the lord chief justice, whose judgment was the most elaborate, and might be regarded as the leading judgment of the majority, and which contained a principle that seemed to challenge the right of Parliament to legislate on this subject Expressions of the lord chief justice would certainly seem to imply that we could not legislate with respect to the high seas, even within the limits of the belt or zone to which he had referred, without the consent of foreign nations, or until after communication with foreign nations. That was a very serious question. If the judgments of those learned judges amounted, as they were supposed to do, to a proposition of that kind, of course Parliament would be exceeding its powers if it entered into legislation applying to that belt or zone with the view of making foreigners amenable to our law. But he would ask their lordships to consider whether there was any foundation for that principle. He ventured to think there was not, and he thought it would be a very serious thing if there were. He would lay before their lordships the views of great constitutional writers of this kingdom and of the United States on this question. Then he would add the views of international jurists on the continent, and next he would show what our own judges had ruled in international cases, and lastly he would direct attention to what their lordships themselves had done in the course of legislation. If their lordships referred to Bracton and Selden they would find that those writers maintained that within the four seas—the British Channel, the Irish Channel, the sea on the west and east coast of Scotland, and the German Ocean—the Crown had jurisdiction, and that they held that the country would not be safe without jurisdiction. They did not enter into the question how far our jurisdiction extended, because in their times our commerce was not such as to make it necessary for them to do so; but they claimed a jurisdiction over the four seas. He held that principle had never been departed from. As years went on and commerce extended, definitions as to distance were adopted, but the principle of the claim to a jurisdiction over the waters round the kingdom was never given up. He would quote the opinion of Coke:

“If a man be upon the sea of England, he is within the kingdom or realme of England, and within the ligeance of the King of England, as of his Crowne of England. And yet altum mare is out of the jurisdiction of the common law, and within the jurisdiction of the lord admirall, whose jurisdiction is verie antient, and long before the reigne of Edward the Third.”

Then Hale, in his De Jure Maris, said:

“The part of the sea which lies not within the body of a county is called the main sea or ocean. The narrow sea adjoining to the coast Of England is part of the waast and demesnes and dominions of the King of England, whether it lie within the body of any county or not. This is abundantly proved by that learned treatise of Master Seldon called Mare Clausum; and therefore I shall say nothing therein, but refer the reader thither. In this case the King of England hath a double right, viz, a right of jurisdiction which he ordinarily exerciseth by his admiral, and a right of propriety or ownership. The latter is that which I shall meddle with.”

Again, in his Pleas of the Crown, Hale said:

“The realm of England comprehends the narrow seas, and therefore if a war be levied upon those seas, as if any of the King’s subjects hostily invade any of the King’s ships (which are so many royal castles), this is a levying of war within his realm, for the narrow seas are of the ligeance of the Crown of England (vide Selden’s Mare Clausum). And this may be tried in the county next adjacent to the coast by an indictment taken by the jurors for that county before special commissioners of oyer and terminer, de quo vide infra, and in the chapter of piracy.”

That was the view of our great international writers on English law, who did not concern themselves with the extent of the jurisdiction, but with its principle. He would now cite the opinion of the American text writers. What did Kent in his Commentaries say?

“It is difficult to draw any precise or determinate conclusion, amid the variety of opinions, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends. 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 a cannon-shot will reach and no farther, and this is generally calculated to be a marine league; and the Congress of the United States have recognized this limitation by authorizing the district courts to take cognizance of all captures made within a marine league of the American shores.”

Then Wheaton gives this opinion:

“The controversy how far the open sea or main ocean beyond the immediate boundary of the coasts may be appropriated by one nation to the exclusion of others can hardly be considered open at this day. We have already seen that by the generally approved usage of nations, which forms the basis of international law, the maritime territory of every nation extends (1) to the ports, harbors, bays, &c.; (2) to the distance of a marine league, or as far as a cannon-shot will reach, from the shore along all the coasts of the state.”

And afterward:

“The reasons which forbid the assertion of an exclusive proprietary right to the sea in general will be found inapplicable to the particular portions of that element included in the above designations.”

And Bishop in his Criminal Law, states:

“A nation bordering on the sea can hold actual possession of it as far from the shore as cannon-balls will reach, while dominion to this extent is necessary for the safety of the inhabitants, who might otherwise, being neutral, be cut down in time of war by the artillery of the belligerents contending on the water. And so much of ocean, the authorities agree, is within the territorial sovereignty which controls the adjacent shores. A cannon-shot is for this purpose estimated at a marine league, which is a little short of three and a half of our English miles, or exactly 3.4517. But the rule of computing a cannon-shot as a marine league for this purpose was established before the late improvements in guns and gunnery, and, in reason, the distance would seem now to require extension, though the author is not able to refer to any sufficient authority showing the extension to have been actually made in the law of nations.”

The real principle which seems to be upheld by all the international jurists is that in extent so much jurisdiction must be given to every country as was necessary for its defense and protection. Different estimates were made by different international jurists. A number of these estimates might be summed up thus:

Albericus Gentilis, 100 miles; Baldus, Bodinus, 60 miles; Loccenius, two days’ sail; Cesaregis, 100 miles; Valine, as far as soundings can be had; Puffendorf refers to Baldus’s limit, 60 miles; calls it “an accessory to the land as much as the ditch of a town is an accessory to the town”; Grotius, “as much of the sea as can be commanded from the land”; Bynkershoeck, same as Grotius; Wolff, same as Grotius; Moser, see extracts; Vattel, see extracts (two); Hübner calls this part of the sea an “accessory” to the land; Lampredi, “as much as is necessary to protect the shore”; Martens, see extract; Schmaltz, see extract; Ortolan, chapter De la Mer Territoriale, “the sovereignty of the sea has for its limits the distance a cannon will carry”; Hautefeuille, see extracts.

He would now quote the opinion of some of the international jurists as to the jurisdiction itself. Moser said:

“The sea which borders on the coast of a country is indisputably, according to the law of nations, under the sovereignty of the adjacent land, as far as a cannon-shot will reach.”

This was laid down by Vattel:

“In general, 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.”

Again, the same writer said:

“Nowadays, all the extent of sea which is within reach of a cannon-shot from the shore is considered as forming part of the territory. For this reason a vessel taken under the cannon of a neutral fortress is not a good prize.”

Martens stated:

“So a nation may assert an exclusive right to the neighboring portions of the sea, capable of being maintained from the shore. At this day all European nations agree that, as a rule, straits, bays, gulfs, and the neighboring sea belong to the master of the coast, to the extent at least of a cannon-shot from the shore. In a number of treaties the wider range of three leagues has even been adopted.”

Schmaltz laid it down that—

“The parts of the sea which bathe the coast have always been considered to be the property of the country which they bound. In Europe, the opinion of jurists who have treated the matter philosophically has been systematically adopted. According to this principle the sea should belong to the continent as far as the defense of the shore can extend, of which a cannon-shot was to be taken as the measure. At a later period the distance has been fixed arbitrarily at three marine leagues.” [? miles].

And this was from Hautefeuille:

“These territorial waters are the property of the nations possessing the shores, and, consequently, these nations have, within such waters, all the rights of sovereignty without exception as though it were on so much land. Foreigners entering this reserved territory must submit to the law of the sovereign in all that concerns their relations with the land and its inhabit ants, as though they were on the land. The limit of the territorial sea is fixed by the principle from which its territorial character arises. It extends as far as the sea can be commanded from the shore, but no farther.”

It appeared to be established as a matter of principle that there must be a zone. The only doubt was as to how far our limit extended. The authorities were clear on this—that if three miles were not found sufficient for the purpose of defense and protection, or if the nature of the trade or commerce in the zone required it, there was a power in the country on the seaboard to extend the zone; but at present there was a consensus of opinion among the authorities that certainly the jurisdiction extended to three miles. If that were not the established law, nations with a seaboard would be very much worse off than those which had none, because a neighbor on land you could make a treaty with, or treat as an enemy; but if a nation with a seaboard had no control over a zone it would always be liable to dangerous aggression from beyond the sea. [Hear, hear.] He would now refer their lordships to judicial opinion. In a case in which Prussia claimed restitution of a ship seized by an English man-of-war within three miles of Prussian territory, Lord Stowell said:

“A claim has been given for the Prussian Government, asserting the capture to have been made within the Prussian territory. It has been contended that although the act of capture itself might not have taken place within the neutral territory, yet that the ship to which the capturing boats belonged was actually lying within the neutral limits. The first act to be determined is the character of the place where the capturing ship lay, whether she was actually stationed within those portions of land and water, or of something between water and land, which are considered to be within Prussian territory. She was lying within the eastern branch of the Ems, within what I think may be considered at a distance of three miles at most from East Friesland. I am of opinion that the ship was lying within those limits in which all direct operations are by the law of nations forbidden to be exercised. No proximate acts of war are in any manner to be allowed to originate on neutral ground, and I cannot but think that such an act as this, that a ship should station herself on neutral territory and send out her boats on hostile enterprises is an act of hostility much too immediate to be permitted. The capture cannot be maintained.”

In another case, that of the Maria, Lord Stowell said:

“It might likewise be improper for me to pass over, entirely without notice, as another preliminary observation, though without meaning to lay any particular stress on it, that the transaction in question took place in the British Channel, close upon the British coast, a station over which the Crown of England has from pretty remote antiquity always asserted something of that special jurisdiction which the sovereigns of other countries have claimed and exercised over certain parts of the seas adjoining to their coasts.”

He would now refer their lordships to an opinion expressed by Sir John Nicholl, on a claim by a lord of a manor to goods derelict. Sir John said:

“As to the right of the lord extending three miles beyond low water, it is quite extravagant as a jurisdiction belonging to any manor. As between nation and nation, the territorial right may, by a sort of tacit understanding, be extended to three miles; but that rests upon different principles, viz, that their own subjects shall not be disturbed in their fishing, and particularly in their coasting trade, and communications between place and place during the war. They would be exposed to danger if hostilities were allowed to be carried on between belligerents nearer to the shore than three miles.”

A case occurred when the Duke of Wellington held the office now held by his noble friend Earl Granville. In 1829, within three miles of one of the cinque ports, some fishermen at sea were fortunate enough to discover a whale valued at £370. A claim to the fish was made by the lord warden, and the admiralty claimed against him. The learned judge who tried the question came to the conclusion that the office of lord warden of the cinque ports was more ancient than that of lord high admiral, and the lord warden of the cinque ports succeeded in carrying away the whale. What were the views of Dr. Lushington? He said:

“What are the limits of the United Kingdom? The only answer I can conceive to that question is the land of the United Kingdom and three miles from the shore.”

Again, the same learned judge, in speaking on the question of compulsory pilotage, said:

“The Parliament of Great Britain, it is true, has not, according to the principles of public law, any authority to legislate for foreign vessels on the high seas, or for foreigners out of the limits of British jurisdiction; though, if Parliament thought fit to do so, this court, in its instance jurisdiction, at least, would be bound to obey. In cases admitting of doubt, the presumption would be that Parliament intended to legislate without violating any rule of international law; and the construction has been accordingly. Within, however, British jurisdiction, namely, within British territory, and at sea within three miles from the coast, and within all British rivers intra fauces, and over foreigners in British ships, I apprehend that the British Parliament has an undoubted right to legislate.”

Then he would add to that the opinion of the late Lord Wensleydale, in that House, in “Gemmell vs. The Commissioners of Woods and Forests,” a well-known Scotch salmon-fishery case:

“It may be worth while to observe that it would be hardly possible to extend it seaward beyond the distance of three miles, which, by the acknowledged law of nations, belongs to the coast of the country, is under the dominion of the country by being within cannon-range, and so capable of being kept in perpetual possession.”

In advising that House in another case, a noble and learned friend (Lord Chelmsford) whom he was glad to see there to-night, and who held the office which he (the Lord Chancellor) had the honor to hold, said:

“The three miles’ limit depends upon a rule of international law, by which every independent state is considered to have territorial property and jurisdiction in the seas which wash their coast within the assumed distance of a cannon-shot from the shore.”

He would add to that the opinion expressed by another noble and learned friend (Lord Hatherly) of his, whom he was also glad to see there. His noble and learned friend, in the case of a collision between a foreign and a British ship, said:

“With respect to foreign ships, I shall adhere to the opinion which I expressed in Cope vs. Doherty, that a foreign ship meeting a British ship on the open ocean cannot properly be abridged of her rights by an act of the British legislature. Then comes the question, how far our legislature could properly affect the rights of foreign ships within the limits of three miles from the coast of this country. There can be no possible doubt that the water below low-water mark is part of the high sea. But it is equally beyond question that, for certain purposes, every country may, by the common law of nations, exercise jurisdiction over that portion of the high seas which lies within three miles from its shores.”

In the case of the “Free Fisheries of Whitstable vs. Gunn,” Sir William Erle said:

“The soil of the seashore to the extent of three miles from the beach is vested in the Crown.”

Now, these were the opinions, and as far as he was aware, there was no opinion in the other way, of the eminent judges who had considered this subject. He said he would inform their lordships what had been done in the way of legislation. He might refer their lordships to many acts of Parliament, but he would only refer to one. He would take the last edition of the foreign enlistment act. That was an act which, if the words “deliberation,” “care,” might ever be applied to the passing of an act, might be applied to the passing of it. It was brought forward by the government of the day, under the advice of its legal advisers. It had also the gravest consideration from many persons outside the government. What that act did was this: it provided that “this act shall extend to all the dominions of Her Majesty, including the adjacent territorial waters.” He had troubled their lordships with these references because he felt bound, after the doubts supposed to be cast on the question, to establish the position that their lordships were entitled to legislate as he proposed. The right which we claimed over the high seas was a right which we had always exercised, and he asked their lordships to pass an act for the purpose of obviating the doubts he had pointed out. Her Majesty’s Government did not wish to make any new enactment as regarded the case of British subjects within territorial waters of this country. No person doubted the full jurisdiction of the Crown over them. It was only in the case of those who were not British subjects that doubts had been expressed. With regard to those who might be foreigners, and temporarily within the three-mile limit, Her Majesty’s Government wished that there should not be an absolute necessity of proceeding against them for a breach of our law. They proposed to enact that an offense committed by a person who was not a subject of Her Majesty on the open sea within the territorial waters of Her Majesty’s dominions, although the offense might have been committed on board a foreign ship, might, with the consent of one of the principal secretaries of state, be tried by a British tribunal. He asked their lordships to read the bill a first time, and he proposed the second reading for this day week.

Lord Selborne said that as far as the case connected with the Franconia proceeded on a technical ground for the trial of a criminal offense on the high seas within the territorial waters of this country, he did not profess to entertain an opinion which would entitle him to criticise the judgment of the majority of the judges; but he must say that on reading that judgment some doubt was entertained as to the existence in principle of the territorial right, properly so called, in the sovereign of this country over waters which all writers on international law had regarded as territorial waters. It was by the general consent of nations that the three-mile limit had been fixed, and within that limit other nations claimed exactly the same jurisdiction and rights that we ourselves claimed. The bill proposed, very properly, to assert our right to punish criminal offenses committed within that limit, and much prudence was shown in not seeking to extend by this measure our jurisdiction for this purpose beyond the three-mile limit. It had been argued that, in consequence of the increase in the range of artillery, that limit should be extended to five or even six miles; but, although that might be a very sensible alteration to make in international law, it should only be effected by the general consent of all nations.

The Duke of Somerset asked whether the bill would touch the question whether the ine of limitation should be drawn from headland to headland, or merely follow the inclination of the shore, and whether the provisions of the hill would apply to offenses committed on board foreign vessels of war within that line of limitation.

The Lord Chancellor replied that ships of war would not come within the provisions of the bill, and that the measure in no way touched the question relating to bays and headlands.

The bill was then read a first time.

The House adjourned at twenty minutes to seven o’clock.