206 THE ARGUMENT OP THE UNITED STATES. 



Sir Robert Phillimore, in his work on International Law, published 

 in 1854, citing from 3rd Edition, London, 1879, vol. 1, page 274, in 

 discussing those portions of the sea subject to the rights of property 

 or jurisdiction states: 



Though the open sea be thus incapable of being subject to the 

 rights of property or jurisdiction, yet reason, practice, and authority 

 have firmly settled that a different rule is applicable to certain por- 

 tions of the sea. 



And first with respect to that portion of the sea which washes the 

 coast of an independent state. Various claims have been made, and 

 various opinions pronounced, at different epochs of history, as to 

 the extent to which territorial property and jurisdiction may be 

 extended. But the rule of law may be now considered as fairly estab- 

 lished namely, that this absolute property and jurisdiction does not 

 extend, unless by the specific provisions of a Treaty or an unques- 

 tioned usage, beyond a marine league (being three miles) or the dis- 

 tance of a cannon-shot, from the shore at low tide : " quousque e 

 terra imperari potest," " quousque tormenta exploduntur," terrse 

 dominium finitur ubi finitur armorum vis," is the language of 

 Bynkershoek. " In the sea, out of the reach of cannon-shot " (says 

 Lord Stowell) , " universal use is presumed." This is the limit fixed 

 to absolute property and jurisdiction ; but the rights of independence 

 and self-preservation in times of peace have been judicially con- 

 sidered to justify a nation in preventing her revenue laws from being 

 evaded by foreigners beyond this exact limit ; and both Great Britain 

 and the United States of North America have provided by their 

 municipal law against frauds being practiced on their revenues, by 

 prohibiting foreign goods to be transshipped within the distance of 

 four leagues of the coast, and have exercised a jurisdiction for this 

 purpose in time of peace. These were called the Hovering Acts. 



Again at page 276, " the limit of territorial waters has been fixed at 

 a marine league, because that was supposed to be the utmost dis- 

 tance to which a cannon-shot from the shore could reach. The great 

 improvements recently affected in artillery seems to make it desirable 

 that this distance should be increased, but it must be so by the general 

 consent of nations by specific treaty with particular States." 



The extract cited in the British Case from Phillimore is taken from 

 the following paragraph and, if separated from it, does not present 

 the views of the author: 



Besides the rights of property and jurisdiction within the limit of 

 cannon-shot from the shore, there are certain portions of the sea, 

 which, though they exceed this verge, may, under special circum- 

 stances, be prescribed for. Maritime territorial rights extend, as a 

 general rule, over arms of the sea, bays, gulfs, estuaries which are 

 enclosed but not entirely surrounded by lands belonging to one and 

 the same state. With respect to bays and gulfs so enclosed, there 



British Case, 118. 



