117 



"In ncUlition to the atithority nf tlie piiblicists, tliis three mile mnge, if not expressly 

 i-ccognized us an alisohite liouiulaiy liy interniUioiml Iiiw, is yet Kxud on. apjuireutly wuliout dispute, 

 in Acts of r«rliaineiit, in Tixiatios, and in judgments of Courts ui Law in tliis couiai'y and 

 America." . . . ., . i . i.; 



dicii- 

 horc. 

 d it. 



thr 



so to 



)lhi'r>i 



mill 



101 It y 



itliiiii 



^tnl ; 



tl),. 



Brett, J., uses tlie following- language : — 



"What are tiie limits of tiie realm should, in gcnenil, Ixi <lec'lan'd liy I'arliami'ni. It.s declanitiou 

 would be ronclusiw, either as authority or evidence. I!ut, in this case nf tlic open .sea, then! is no 

 such ileelaration ; and tlu; ([Uestion is in tliis case necessarily left to the judges, and to he determined 

 on other evidence or authoiity. Sucli evidence might have cou.sistcd of jiroof of a continuous pidilic 

 claim hy the Crown of England, enforced, when pructicahh', by arms, bin not consented to by other 

 nations. 1 sluiuld have considered such ]m)of .suilicient for Englisii .ludges. In Knijland, it cannot be 

 admitted tiial tlie limits of Kngland (lepend on tlu; ctarseiU of any other nation. Ihit no such 

 evidenie was ottered. Tiu! only evidence suggested in this case is tliat, by law of nations, every 

 country Ixmlered l)y tiie sea is to be held to have, lus part of its territory (meaning thereby a territory 

 in which its law is paranKMint and exclusive), tlie three miles of ojieii sea next to its coa.st ; and, tliere- 

 fow!, tiiat Kughind, among others, has such territuiy. The (|iie.stioii on botli sides has been made to 

 depend on whetlier sucii is or is not jiroveii to lie the law of nations. 



" I cannot but think, tiierefore, that sulistanlial'.y all the foreign jurists are in accord in as.s.serling 

 lliat, by the common consent of all nations, each wliic'i is bordereil by an open sea has over three 

 adjacent miles of it a teiritorial ri','ht. And the sense in which they all use tiiat term seems to me t<i 

 be fully exjilaincd by Valtel (lib. i. c. I«, Jj J(l."i\ He says :— 



"' Lor.siiu'nne nation ,s'eni]iare d'un Jiays c|iii n'ajipartieiit encore a ]ieisoiiiie, elle e.sl ceiisi'e y 

 oceuper l'Em]iire, ou la souverainet('', en nieiiie temps (pie le domaine. 'I'out I'espace dans leipiel uiie 

 nation etend son Empire forme le ressort de sii jnridiction, et sapjielle son territoire.' At lib. ii. j^ S4 : 

 ' L'Emjiire, tini an domaine. et.ablit la juridietion de la nation dans le jiays qui lui appartient. dans son 

 territoire.' 



"This seems plain: sovereignly and dominion necessarily give or import jurisdiction, and ilo so 

 throughout the territory. 



" Ai)]ilviiii,' this to the territorial sea, at lib. i. c. '2'.\. ^ 2'.*'>, he says; — 



" ' tjuaiid line natinii .s'emiiare ile eertaines parties de la mer, elle y Dcciipe rKiiijiire aussi bii'ii nue 

 le (hunaine, i<:c. Ces parties de la mer soiit de la juridietion dn territoire de la nation. I,e Sonverain 

 y command ; il y doniie des lois. et pent reprimer cenx <|iii les violent; en lie .lOt, il y a tuns les memes 

 droits ipti lui aii|iartieiinent siir la tent!,' \'c. 



" It .seems to me that this is, in reality, a fair representation ot the accord oragieemeiil of suiistan- 

 lially all the foreign writei-s on inlernaticnial law : and that they all agree in asserting that, by the 

 con.sent of all nations, each which is bordered by upeii sei has a right o\ersnch adjacent sea as a terri- 

 torial sea— that is to say, as a jiart of its territoiy ; and that they all mean theieby to a.ssert that it. 

 follows, as a consei|neiice of such sea being a ])iirt of its territory, that each such nation lias, in iiencMl, 

 the same right to legislate and to enforce its legislation ovitr that part of the sea as it has over hn land 

 ten'itory. 



"Considering the authorities I have cited, the terms used by them — wholh' inconsistent, as it 

 seems to nu', with the idea that the adjaci'iil country has no pro|ierty, no dominion, no sovereignty, no 

 territorial ri,L;lil,- ami, considering the necessary foundation of tlie admitted riglits and duties <if tlie. 

 adjaccMit country lUs to iieutndity, which lia\e always been made to de|)eiid on a right and duty as to 

 its territory 1 am of opinion that it is proved that, by the law of nations, made by the tacit consent 

 of substantially all nations, the open sea within three miles of the coast is a part of the adjacent 

 nation, as much and as completely iis if it were land, and n jiart of the territory of such nation. My the 

 same evidence which proves this piiipnsition, it is eipially ju'ovcd that evi'iy nation w liicli possesses this 

 water territory luis agieed with all other nations that all sjiull have the right of fn-e navigation to jiass 

 thifuigh such water territory, if such navigation be with an innocent or luirmles.s intent or pui-po-se. 

 The right of free navigation cannot, accortling to ordinary princi]des, lie withdrawn witlaait common 

 coiLsent ; but it by no means derogates from the sovereign authority, over all its tciritory, of the Stale 

 which 1ms agreed to grant this liberty, or easement, nr right, to all the world." 



Lord Chief Justice Cockburn delivered the Judgment of the Court, from whicii 

 the following passages arc extracted : — 



" liy the old conniimi law of Kngland, every oH'ence was triable in the county only in whicii it had 

 been connnitted ; as, from that county alone, the ' pais,' as it was termeil — in other woitls, the jinin's by 

 whom the fact was to iie ascertained — could conic. Ihil only so much of the. land nf the outer coast as 

 was uiico\eii'd by the .sea was held to be uilhiii the body of the adjoining c(aiiity. If an olleuce was 

 committed in a bay, gulf, or estuary, ■iii/rr J'nvirs Urrn-, the emnnion law could deal with il, becau.se the 

 jiarts of tln! sea .so circumstanced were held to be within the body of tin adjacent county or eiainties ; 

 but, ahmg the coast, on the external sea, the jurisdiction of the connnon law extended no furiher than 

 to low-water mark." 



"The jurisdiction of the Admiral, liowe\ei laigely as.serted in theory in ancient times, being 

 aliinidoned as untenable, it lieconies necessary lia the Counsel for the Clown In have leconise to a 

 thictrine of comparatively modern fji'owlh, namely, llnit a belt oT sea, to a distance of three miles IVom 

 the coast, though so far a portion of the lii^ili seas as to be still within the jurisdiction ol the .\iliniral, 



t of the territory of the realm, .so as to make a forei.^'iier in a Ibivign ship, w itliiii such belt, il 



lollU'll 



OU a voyage to a foreign port, subject to our law, which it is dear he would nut lie on the high sea 



[280] 



» 



