QUESTION FIVE. 219 



the ocean, or communicates only by a narrow strait, this part of the 

 sea may be lawfully possessed, since it may be occupied, enclosed and 

 defended. 



Azuni makes it clear at page 205, in section 15, of the same chapter 

 what he intended by the power to defend : 



It would be reasonable then, in my opinion, without inquiring 

 whether the nation in possession of the territory has a castle or bat- 

 tery erected in the open sea, to determine definitively that the juris- 

 diction of the territorial sea shall extend no farther than three miles 

 from the land, which is, without dispute, the greatest distance to 

 which the force of gunpowder can carry a ball or bomb. 



Wheaton cites Vattel's Law of Nations, which states, as already 

 quoted, that the entrance to a territorial bay must be capable of 

 defense. 



Proceeding to the citation from Kent's Commentaries Chancellor 

 Kent was not stating the usage and practice of nations or his opinion 

 of existing conditions when he wrote (vol. 1, 1st edition, p. 29) : 



Considering the great extent of the line of the American coasts, we 

 have a rig/it to claim for fiscal and defensive regulations, a liberal ex- 

 tension of maritime jurisdiction; and it would not be unreasonable, 

 as I apprehend, to assume, for domestic purposes connected with our 

 safety and welfare, the control of the waters on our coasts, though in- 

 cluded within lines stretching from quite distant headlands, as, for 

 instance, from Cape Ann to Cape Cod, and from Nantucket to Mon- 

 tauck Point, and from that point to the capes of the Delaware, and 

 from the south cape of Florida to the Mississippi. 



He had just stated (1st edition, vol. 1, p. 29) : 



According to the current of modern authority, the general terri- 

 torial jurisdiction extends into the sea as far as cannon shot will 

 reach, and no farther, and this is usually 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. 



No such claim ever had been made, even " for fiscal and defensive 

 purposes," and no such claim has since been made by the United 

 States. Whatever Chancellor Kent's opinion may have been as to 

 what might be claimed, the United States has never asserted exclusive 

 jurisdiction over the waters included within the suggested limits. 



Chancellor Kent quoted in the same section of his Commentaries, 

 Mr. Madison's instruction to Messrs. Monroe and Pinkney, of May 

 17, 1806, to the effect that no belligerent right should be exercised 

 within " the chambers formed by headlands, or anywhere at sea 

 within the distance of four leagues, or from a right line from one 

 headland to another." 



92909 S. Doc. 870. 01-3, vol 8 15 



