ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 381 



However, he says in conclusion, that the principle of that case of 

 Rose V. Mimcly is now overruled. 



Now I have read these cases with all possible desire to get to the bot- 

 tom of them, and try and see what information they would give, by 

 way of assistance to the Tribunal — but beyond certain expressions 

 which are to be found in them here and there, not always quite ad rem 

 to the particular points they were discussing, some in the judgment of 

 Chief Justice Marshall and some in the judgment of Mr. Justice 



1177 Johnson, there is really nothing that is of any material aid to 

 the Court. I want however to explain to the Court how those 



cases were regarded by a textwriter whom we certainly, in England, 

 consider as a textwriter of some authority — I mean Mr. Dana, in his 

 edition of Wheaton, which is an American book of authority. I observe 

 my friend Mr. Phelps in the Argument does not treat Mr. Dana as 

 being a jierson of very high authority. I will only observe in relation 

 to that that his edition of Wheaton is received with respect in the 

 English Courts; and as regards his ability and position, I can point to 

 the fact that he was the Counsel chosen by a very able Secretary of 

 State, himself a distinguished lawyer, to represent the interests of the 

 United States on the Halifax Fisheries Arbitration: the Secretary of 

 State who selected him was Mr. Secretary Evarts, who is known to some 

 of the Tribunal and known to me personally as a lawyer of distinction. 

 Mr. Evarts not only selected Mr. Dana, but speaking of his selection, 

 he congratulates the United States on having been able to secure a 

 Counsel of such distinguished eminence. 



The passage I am now about to read is printed in the print handed 

 in to the Members of the Tribunal a few days ago. It is an intelligent 

 criticism upon the whole of this part of the law, shortly described as 

 the "hovering principle", if it can be designated by the nane of "prin- 

 ciple". I refer to the note to section 180: the note being 108, and the 

 page 208 in the 8th edition. In section 179 he refers to the exclusive 

 territorial jurisdiction over the inclosed parts of the sea along the coast 

 called the King's Chambers: he i^roceeds: 



It appears from Sir Leoline Jeukius 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 coiists and 

 harbours of Great Britain as to disturb or threaten vessels homeward or outward 

 bound; and that captures by such foreign cruizers even of their enemy's vessels 

 would be restored by the Court of Admiralty, if made within tlie King's Chambers. 

 So also the British "Hovering Act", passed in 173fi (9 Geo. II, cap. 35), assumes, for 

 certain revenue purposes, a jurisdiftion of 4 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 declaretl by judicial authority in each country to be 

 consistent with the law and usage of nations. 



His note upon that includes a criticism of Church v. JTubharf, and 

 perhaps you will be good enough to allow my learned friend Mr. Box to 

 read it. 



The President. — Certainly. 



Mr. M. H. Box.— 



108. Municipal Seizures icyond the Marine League or Cannon-shot. — The statement in 



the text requires further consideration. It has been seen that the consent of nations 



extends the territory of a State to a marine league or cannon-shot from the coast. 



Acts done within this distance are within the sovereign territory. The war right of 



visit and search extends over the whole sea. But it will not be found that 



1178 any consent of nations can be shown in favour of extending what may be 

 strictly called territoriality, for any purpose whatever, beyond the marine 



league or cannon-shot. Doublless States have made laws, for I'evenue purposes, 

 touching acts done beyond territorial waters j but it will not be found that, iu later 



