118 



beyond such limit. It is ncccssaiy tn kceii tlii; old nsscvtioii ul' jurisdiction mid tliat cif to-<liiy essou- 

 tinlly distinct; and it slunild lie Imnu' in mind tliiit it is Ih'ciuiso all piddl' of the nctunl iwiircisc of any 

 jurisdiction by tlu' Admiral over foieijinci-s in the narrow seas totally tails, that it boconuis necessaiy to 

 };ivc to the tlnvti-mile zone the ehavacter of ten'itory, in lader to make i,'ood the assertion of jurisdiction 

 over the foivij,'nt'r therein. 



"Now, it may l)c asserted, withont fear of conlrndiclinn. that liie (losition that the sea within the 

 belt or zone of three miles from the shore, as dislin;,'\iished from llitt'rest of the open sea, forms part of 

 the realm or ten-itoiy of the Crown, i* a iloctrine unknown to the ancient law of Knglund, and which haa 

 never yet received the siinction of an Kiiglisli criminal coiiri of justice. It is true that, from an early period 

 the Kings of Knjjland. possessing; more siii))s tliuu their opposite neighbours, and being thence able to 

 sweep the I'hannel, a.sscrted the right of sovereignty over the narrow seii.s, as appeal's from the com- 

 niissions issued in the fourteeiitli ceiitiiiy. of which examples are given in the 4th In.stitute, in the 

 chapter on the L'cairl of Admiralty, and others are to lie found in Seidell's ' Mare Clausum,' book '2. At 

 a later period, still more extravagant jnetensions were advanced. Seidell does not scruple to a.s.sert the. 

 sovei'uignty of the King of Kiiglaiid over the sea as far as tiie .shores of Norway, in which he is uphehl 

 by Ixjid Hale, in his treatise ' De .lure IMaris.' (Ilargrave's Ijiw Tracts, p. 10.) 



" All these vain and extravagant ]iieteiisioiis have long siiiot^ given way to the influence of reason 

 and common sense. If. indeed, tile .sovereignty thus a.s.serteil had a real existence, and could now be 

 maintained, it woidd, of course. iiide|ieiideiitly of any iiuestions as to the three-mile zone, be couclusivo 

 of the ]aesent case. Ihit the claim to such sovereignty, at all times unfounded, has long since been 

 abandimed. Xo oiu' would now dream of asserting that the Sovereign of the.se ivabns has any greater 

 right over the siincaniding .seas than the Sovereigns on the opposite shores ; or that it is the cspeciol 

 duty and jnivilege of the (Jueeii of (ireat liritain to keep the peace in tlie.se seas, or that the Court of 

 Admiralty could trv a foiei^'iier for an ollence coniniittcd in a foreign ves.sel in all parts of the 

 Channel." 



' 'he nninii.^iis of jurists, wiiirli has lieeii so much insisted on as autlanity, is perfectly unanimoUK 

 as to the non-existence of any >.iich jurisdiction. Indeed, it is because this claim of sovereignty is 

 admitted to Ihj uiitenaiile tiiat it has been found necessary to resort to the theory of the three-mile zone. 

 It is in vain, tiierefcue, that the ancient a-ssertion of sovereignty over the narrow seas is invoked to give 

 conntemince to the rule now soiighl to be estaiilislied, of jurisdiction over the three-mile zone. Jf this 

 rule is to prevail, it must be mi altogether ditlereiit gnainds. To invoke .is its Ibiindation, or in its 

 su])p(Ut, ail a.s.sertioii of soveieignty. wiiich, fca' all ]practical piirpo.ses, is, and always has Ixien, idle 

 anil unfounded, and tlie invalidity of whicii remleis it necessary to have recourse to the now 

 doctrine, involves an inconsistency on whicii it would be siijiertluous to dwell. I must confess 

 myself unable to comprehend how. when the ancient doctrine as to soviiieignty over the imiTow .sens 

 is addiiceil, its operation can bi- routined to the thiee-mile zone. If the argument is good for any- 

 thing, it niust'aiiply to the whole of tiic siuioundiiig seas. Hut the ccainsel for tiie Crown evidently 

 sliuink fnuu aiiplyiug it to this exleiil. Siu h a |iieteiisioii would not be admitted or endured by 

 foreign nations. That it is out of this extravagant as.suition of soveieignty tliat the doctrine of the 

 three-mile jiirisiictinn. asserted on liie pari of (he Ciown. and which, the older claim being necessarily 

 abandoneil, we are now called ii]ion to eoiisidei. has sprung up. 1 readily ailniit.'' 



'■ l-'iom the review of these authorities. We arrive at the fnllowing results. There can be no doubt 

 that the suggestion of Ifynkeislnn'k, t liat the sea siiri-onnding tiie coast to the extent of cannon-range should 

 1h' treated as lielongiiig to the .'slate owning the r<iast. has. with I'lit very few exceptions, been accepted 

 and adopted bv the piililicists who have followed him during the last two ceiiliuies. I>ut it is equally 

 I'lear, tha" in the piaitical , plii alinii of the rule in respect of the paiticiilar of distanif, as also in the 

 still more esseniial i)artieular of the i haiaeter an<l degree of sovereignty aial dominion to lit exorcised, 

 ga'at ditlereiice of opinion and mireitainty have prevailed, and still continue to exist. 



'■ As regards liistaiae. while the majority of authors have adhered to the three-mile zone, others, 

 like M. Ortolan and Mr. Ilallick. applying witii greater consiitemy the firiiiciple on which the whole 

 doctrine rest, insist on exlendiiiL; the distance to the modern range of cannon — in other words, 

 doubling it. This dilfereiute of opinion may be of little pnutieal ini]ioitaiue in llie present instance, 

 inasmuch astlie place at wiiicli the nlVein ciiiTcd was within the lesser distance ; but it is, neverthe- 

 less, not iiiimateiial. as ^bowing how iiiiseltled tlii> doctrine still is. Tlie i|Ueslion of .sovcreigntj', on 

 the other liaiid. is all-important. And lure we have evei\ shade of opinion. 



"OiU' set of writers— as. for instance. M. llautefeiiille — ascribe fo the .State lelTilorial iilopertyand 

 sovereignty over the three miles of sea. to the extent of the right of exclndiiig tiie ships ol all other 

 nations, even fur the piniiose of passage, — a doctrine llow iiig iiiiiiiedi.ilely from the )Minciple of territ<iiial 

 jii'opertv. lait wliii-h is too monstrous to be admilled Another set concede territorial pro|ierty and 

 Miverei'.'iity. but make it siil.jeet to the riyiit of other nations to use these waters for tin' purpose of 

 navigation, ((liars a^jaiii. like .M. tlitiilan and MCalvo. deny any right of leiriloriid )iidperty, but 

 concede ' jiirisdietii'ii ;' li\ uhiili I understand ihem lo mean tiie )iower of ap|ilyiiig the l.iw. applicable 

 to peisoiis on ihe liiiid. to .ill who ale within llie leiiilorial water, and the power of legislating in 

 resjiect of il. so as to bind e\eiy one who comes within the jurisdiction, whether subjects or foreiguci- 

 Soiiic. like M. ( litolaii. wdiild iniiliiie Ihis Jill i>diclinn to purposes of ' safely and police ;' by which I 

 shoiiM lie iljsposed to undeisiimd jiieasiires for the pioieetion of Ihe territiir\. and for the regulation of 

 llii' na\ i'_'.ilioii and tin- ii^e of liarlioiir-i mid loadsteads. and ihe maiiilainance of older among the 

 ■ liippiiiL: tlieiein, latlier than the '.^eiiei-.il applii':itioii of the eriiiiinal law. 



■ (Mher aiilliors — for inslame. .Mi. .Maiiniii;;— wnnld restrict the jiiri^dietion to certain specilied 

 )iiiipoMs in wliiili the Icccal Si.iic> ha- an ininiecliale inleie-l ; namely, the protection of its revenue and 

 ll-l|eiie-, the e, acting ccf liarlcniir ami li;.;lit diic'S. and the |crotec|io|l of il- cccasl.s in lime of wai 



" Some of these aiilhoi'- for in-laiicc'. l'rofes-.cii' r.bintschii make a most iiiiporlaiit disliiiilioii 

 bi tweeii a ccciiimcinint aiel a pax-ill;; -hip. .\eccircliiig to ihi- aiilhicr. while the commorant sliip is liable 

 I'c the local jiiii-clic lion only in mallc'r- cci ■ iniiiiarv aiel po|jcc> ivgiilaiiccn^ made for Ihu suletv ot thu 



^^^^"' ."" 



