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territory and population of the coast," nouo of these writei'S, it should be noted, discuss the question 

 whether, or jjo the leiigtli of iisscvting tlmt, a fnroifjner in ii foreign sliip, using the waters in ((uestion 

 for the pui-jjose of navigation sf)lely, im its way to anotliur country, is lialile to tlit; criminnl law of the 

 adjoining country for an offence coniniitliMl on lioard." 



" T(i those who assert that, to the extent of three miles from the coast, the sea forms port of the 

 realm of Kngland, the i|uesti()n mny well Ik; put, When did it Imjcouio so ? "Was it so from the 

 Ix'gimiiiig f It 1 tainly was not deemed to he sn as to a three-mile /om"-. any mure than ns to the rest 

 of the liigli seas, tlii^ time the Statut(;s of Iticliardll were piisseil. KiU' in those Statutes a clear 

 distinction is mu' I ween the realm and the sea, as olso liotween the Imdies of counties and the sea ; 

 the Jurisdiction m the Admiral being (sulijett to tiie exiM'ption already stated as to mm'derand luayheni) 

 contiued strictly to the latter, and its exercise ' witiiin the realm ' prohibited in tenus. The langtuige of 

 the tirst of these Statutes is especially rcmarkalde : 'Tiie Admirals and iheir dejuities shall not nuMhUe 

 from henceforth with anything done ii-il/iiii f/ic iva/ni of Kiiiiluml, hut vnh/ I'-ith llnwjA dime iijkih. the 

 ma.' 



" It is impossible not to be stiuck l>y tlu' distinction hero taken between the realm of Kngland and 

 the sea ; or, when the two Statutes iin; taken togetiier, not to see that the term ' realm,' use<l in the tirst 

 Statute, and ' bodies of counties,' the term us(ul in the sec^oiul Statute, mean one and the same thing. 

 In these Statutes, the jurisdiction of the Admiral is restricted to the high seas, and, in ivspect of munler 

 ond mayhem, to the great rivers below the bridges : while whatever is within the realm — in other 

 words, within the body of a county — is left within the domain of the common law. Hut there is no 

 distinction taken iietween one part of the high sea and another. The three-mile zone is no more 

 dealt vdlh as within the realm tlian the seas at lai'ge. The notion of a three-mile zone was in those 

 ilays in the wond) of time. When its origin is traced, it is fouiul to In- of (Mimpaniti^'ely modern 

 growth .... 



" For centuries before it was thought of, the great landmarks of our judicial system had been set 

 fast : the jurisdiction of tlu; common law over the land, and the iidand watei-s contained within it, 

 forming together the realm of England ; that of the Admiral over Knglish vessels on the seas, the 

 common property or highway of mankind." 



" But to what, after all, do these ancient authorities amount ? Of what avail are they towards 

 esUiblishing that the soil in the three-mile zone is part of the teiTitorial domain of the t'mwn f These 

 assertions of sovereignty weie manifestlj* based on the doctrine that the narrow seas are part of the 

 realm of Enghuid. liut that doctrine is now exploded. Who at tiiis day would venture to attirm that 

 the sovereignty thus asserted in tho.se times now exists f What Knglish lawyer is there who would not 

 shrink from maintaining, what foreign jurist who woulil not deny, what foreign (iovenuiient which 

 would not repel, such a pretension ? 1 listoned carefully to see whetlier any sucii itsseition would be 

 made; but noiu< was made. No one has gcuie the length of sugijesting, nmcli less of openly asserting, 

 that the jurisdiction still exists. It seems to me tfp follow, that, when the .sovereignty and jurisdiction 

 from which the proj)erty in the soil of the si-a was inferred is goiu-, the territorial which was sugge.sted 

 to be consetjuent upon it nnist neccssai'ily go with it. 



" But we are met here by a sulitle and ingenious ai'gument. It is said, tiiat» although the doctrine 

 of the criminal jurisdiction of the Admiitd over foifijiners on the four .seas has died out, and can no 

 longer be \i])lield, yet, as now, I)y the consent of other nations, sovereignty over this territorial .sea is 

 conceded to us, tlit^ jurisdiction formerly as^^crted may be revived and made to attach to the newly 

 acquired domain. I am unablt! trt adopt tiiis n.'asoiiing. Ji.r ii)/i(r.>«i.<, tlie juristlicticai over fiuvignei-s in 

 foreign .ships never really exisUnl ; at all events, it has long lu'cn .lead and buried ; even the ghost of it 

 has iieen laid. Ihil it is evoked lidiu its gi'ave, and brougiil to life, for tlie ]anpose of applying it to a 

 part of the sea which was iududed in tla^ whole, as to which it is now practically admitted that it 

 ntiver existed. Kroiu the time the jurisdiction was asserted t<i the tinu' when the pretension to it was 

 ilropped, it was asserted over this |)orlioii of tlie sea, a.' part of the whole to which the jurisdiction was 

 said to extend. If it was liad as to the whole indiscriiuiiuitely, it was bad as to every j)art of tht; 

 whole. But why was it Imd as to the whole ; sim|)ly iH'causi' the jurisdicticm did not extend to 

 foreigners in foreign shijts on the high seas. But the watei-s in (pu'stion have always formed part of 

 the high seas. Tlu'V are alleged in this indictment to be .so now. How then, can the admiral have 

 the jurisdiction over them cMmtended for, if be had it not U-fore ! Then' having l)eeu no new .statute 

 conferring it, how has he acquired it ; " 



"First, then, let us see how the matter stands as regards Treaties. It may 1m! as.serted, without 

 fear of contradiction, that the nde that the sea .suiTOunding the coast is In Ix' treated as a part of the 

 adjacent territory, so that the Stat(! shall have, exclusive dominion over it, and that the law of the latter 

 shall be generally applicable to tho.se pa.ssing over it in the ships of other nations, has never been nuide 

 the subject-matter of any Treaty, or, as luatter of a(^knowledged right, hu fcu'nu'd the basis of any 

 Treaty, or has even lieeii the subject of di|)loniatic discu.ssion. It has Imen entirely the creation of the 

 writew on international law. It is true that the writers who have lieeli eitt'd constantly refer to 

 Treaties in su]ii>(irt of the doctrine tliey assert. Hut when the Treaties they refer to are looked at, they 

 will be found to relate to two subjects nidy, — the observance of the rights and ol)ligations of neutrality 

 iind tluM'xclusive right of lishing. in lixiii;,' the limits to which these rights shiadd extenil, nations 

 have so far followed the writers on iiiteruational law as to adopt the three mile raui^e as a convenient 

 di.stanci'. There are several Treaties by which nations have engaged, in the event of either of them 

 U'ing at war with a third, to treat tlu- sea within three uiiles of each other's coiusts as neutral territory, 

 within which no warlike operations should be carried on: instances of which will be louiel in the 

 various treaties on iaternatioiial law." 



"Again, nations ]iossessing opposite or neighliouring coasts, boiih-ring on a coiuinon sea, have 



sometimes found it ex))e(lit^ut to agree that the sulijects of each shall exercise an exclusive right of 



tishilig to a given distaiu.'e Imni their own shores, and here also ha\(' accepted the three miles as a con- 



veiiieiil di.stance. Such, for instance, art! the Treaties nuule Iietween this rountry and the I'nited States 



[280] S 2 



