SEC. 5. This law shall go into operation on the 1st of January of next year and shall remain in force for five years.

PROCLAMATION CONTAINING THE REGULATIONS RELATIVE TO THE PROTECTION OF WHALES ON THE COAST OF FINMARKEN, JANUARY 5, 1881. Referring to the law of June 19th, 1880, relative to the protection of whales on the coast of Finmarken, it is hereby ordered:

In the sea coast of Finmarken, at a distance not exceeding one geographical mile from the coast, counted from the outermost islands or rocks which are never covered by the sea, it shall, until further notice, be prohibited to kill or chase whales during the period from the 1st of January till the end of May.

As regards the Varangerfjord, the limit for the protected tract and towards the sea shall be a straight line drawn from Kibergnos to the boundary, the Jakobselv, but it shall also be prohibited outside of this line, during the season of protection mentioned above, to kill cr chase whales at a distance of less than one geographical mile from Kibbergnos.

[Extract from the Case of the United States.]

Game and Fishery laws are usually limited in their effects to the land and territorial waters of the country which enacts them. But instances are many wherein nations have not hesitated to extend the effects of their laws to the waters contiguous to their shores, beyond the ordinary three-mile limit. Citations have already been made of the laws for the protection of seals of quite a number of nations, which, so far as their own subjects are concerned, apply to large areas of the high seas, and it has been shown that Great Britain and Russia extend their exclusive juridiction for the protection of seals. frequenting waters contiguous to their shores, far beyond the marine league. But further instances may be cited where nations have exercised extraterritorial jurisdiction on the ocean for the protection of other species of marine life besides the seal. In fact, it may be laid down as a principle, established by international usage, that any nation which has a peculiar interest in the continued existence of any valuable marine product, located in the high seas adjacent to its coasts or territorial waters, may adopt such measures as are essential to the preservation of the species, without limitation as to the distance from land at which such necessary measures may be enforced. This principle is well illustrated by two recent Statutes enacted by the Parliament of Great Britain. By the British "Sea Fisheries Act" of 1868 provision is made for the regulation of oyster dredging on any oyster bed within twenty miles of a straight line drawn 486 from the Eastern end of Lamby Island to Carnsore Point on the Eastern coast of Ireland. The law states in terms that it is to be enforced "outside of the exclusive Fishery limits of the British isles," and that every order issued in pursuance of it shall be binding not only on British sea-fishing boats, but also "on any other sea-fishing boats in that behalf specified in the order and on the crews

• See Decrees of February 22, 1812, and October 16, 1869.

of such boats." In other words, jurisdiction may be asserted over foreigners as well as British subjects at a distance of twenty miles from land.

The Scotch herring Fishery Act of 1889 furnishes another illustration in point. That Act provides that certain destructive methods of fishing may be prohibited by the Fishery Board in any part of an area of the open sea, two thousand seven hundred square miles in extent, lying off the North east coast of Scotland, within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire." The Act is not confined in its operations to British subjects, but provides that "any person" offending against its provisions shall be liable to a fine and the forfeiture of his fishing apparatus.

The legislation of several of the colonies of Great Britain also abounds in instances of the exercise of extraterritorial jurisdiction upon the high seas for the protection of different species of marine life. The pearl fisheries of Ceylon extend into the open sea for a distance of twenty miles, and they have been the subject of a series of ordinances and regulations from 1811 down to the present time, which for certain purposes define the limit of marine jurisdiction to be twelve miles, and for other purposes a distance which varies from six to twenty miles.

The right of self-defence by a nation upon the sea, and the right of municipal jurisdiction over a limited part of the sea adjacent to the coast, are not to be confounded, for the two are totally distinct. The littoral jurisdiction, indeed, is only a branch of the general right of self-defence, accorded by usage and common consent: first, because it is always necessary for self-protection, and next, because it is usually sufficient for it. Upon no other ground was it ever attempted to be sustained. That jurisdiction must be limited by an ascertained or ascertainable line, is its necessary condition. That the right of self-defence is subject to no territorial line, is equally plain. All rights of self-defence are the result of necessity. They are coextensive with the necessity that gives rise to them, and can be restricted by no other boundary. As remarked by Chief Justice Marshall, "all that is necessary to this object is lawful, all that transcends it is unlawful."

Precisely what is the limit of jurisdiction upon the littoral sea, and precisely what are the nature and extent of the jurisdiction that can be asserted within it, whether it is absolute or qualified, territorial or extraterritorial, are questions that have been a subject of grave difference of opinion among jurists. Nor have they ever been entirely settled. They will be found to be discussed with a fullness of learning, a depth of research, and a masterly power of reasoning, to which nothing can be added, in the opinions of the English judges in the important and leading case of the Queen v. Kehn (2 Law Rep. Exch. Div., 1876–77, pp. 63 to 239). These learned and eminent judges were not fortunate enough to agree upon all the questions involved, and every view that can be taken of them, and every consideration that is pertinent, are exhaustively presented in their opinions.

Upon these vexed questions it is not at all necessary to enter in the present case, for they have little to do with it. Whether the conclusions of one or the other of these conflicting opinions are to be accepted, is immaterial here. All authorities agree that the sole reason upon which a certain right of jurisdiction upon the sea, and within a limit that is variously stated, has been conceded to Maritime nations, is found in the necessities of self-defence. This part of the Dominion over the sea, whether it be greater or less, has never been surrendered. It is a remnant of the former more extended dominion, retained for the same reason for which that was asserted. Lord Chief Justice Cockburn, in his opinion in the case just cited, reviews the history of this subject, quoting the language of every previous writer of repute, and referring to every judicial decision respecting it which then existed. He points out very clearly the different views that have prevailed and which then prevailed as to the nature of the jurisdiction, and as to the distance over which it could be extended. This limit has been variously asserted by writers of distinction and authority, at two days' sail, one hundred miles, sixty miles, the horizon line, as far as can be seen from the shore, as far as bottom can be found with the dead line, the range of a cannon shot, two leagues, one league, or so far as the Government might think

necessary.

On the other point, the character of the jurisdiction, it may be assumed that by the controlling opinion of the present time, and by the usage of nations, it is not regarded as so far absolute that nation may exclude altogether from within the range of cannon shot the ships of another country, innocently navigating, and violating no reasonable regulation of the municipal law. But the power which may be exerted within that limit is only coextensive with the just requirements of the self-protection for which it exists, although undoubtedly the nation exercising the jurisdiction must be allowed, so long as it acts in good faith, to be its own judge as to the regulations proper to be prescribed, and the manner of their enforcement.

This somewhat indefinite area of a greater or less jurisdiction over the marginal sea, which has thus come to be recognized and conceded, though accorded for the purposes of national self-protection, is by no means its boundary. It illustrates the right of which it is an example, but does not exhaust it. It is but one application of the principle out of many. The necessity which gave rise to it justifies

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likewise the larger power, and further means of defence, which may from time to time be required. No nation, in whatever Statute or Treaty it may have assented to the threemile or cannon-shot limit of municipal jurisdiction, has ever agreed to surrender its right of self defence outside of that boundary, or to substitute for that right the contracted and qualified power which is only one of the results of it, and which must often prove inadequate or inapplicable. On the contrary, as will be seen hereafter, many nations have been compelled to assert, and have successfully asserted, much wider and larger powers in the defence of their manifold interests.

It is under the operation of the same principle on which jurisdiction is awarded to nations over the sea within the 3-mile or cannonshot limit, that a similar jurisdiction is allowed to be exercised not only over navigable rivers, bays, and estuaries, which may be fairly

regarded as lying within territorial boundaries, but over those larger portions of the ocean comprised within lines drawn between distant promontories or headlands, and often extending much more than three miles from the nearest coast. Such waters were formerly known in English law as "the King's Chambers."

Chancellor Kent remarks on this subject (1 Com., pp. 30, 31):

Considering the great extent of the line of the American coasts, we have a right to claim for fiscal and defensive regulations a liberal extension 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 included within lines stretching from quite distant headlands, as for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that Point to the Capes of the Delaware, and from the South Cape of Florida to the Mississippi.

The principle upon which this exercise of maritime jurisdiction reposes is only that of self-defence. As Chancellor Kent further observes (1 Com., p. 26):

it

Navigable rivers which flow through a territory, and the seacoast adjoining *** belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation and to the undisturbed use of the neighbouring shores.

That the right of self-defence is not limited by any physical boundary, but may be exerted wherever and whenever necessity requires it, upon the high sea or even upon foreign territory, is not only the inevitable result of the application of just principles, but is established by the highest authorities in the law of nations. Vattel says upon this subject (p. 128, sec. 289):

*

*

It is not easy to determine to what distance the nation may extend its rights over the sea by which it is surrounded. Each state may on this head make what regulation it pleases so far as respects the transactions of the citizens with each other, or their concerns with the Sovereign; but, between nation and nation, all that can reasonably be said is that in general the dominion of the state over the neighbouring seas extends as far as her safety renders it necessary, and her power is able to assert it.

Chancellor Kent observes (1 Com., p. 29):

It is difficult to draw any precise or determined conclusion amidst the variety of opinions as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends. All that can reasonably be asserted is, that the dominion of the Sovereign of the shore over the contiguous sea extends as far as is requisite for his safety and for some lawful end.

And states may exercise a more qualified jurisdiction over the seas near their coast for more than the three (or five) mile limit for fiscal and defensive purposes. Both Great Britain and the United States have prohibited the transhipment within four leagues of their coasts of foreign goods without payment of duties. (Kent, Com. 1, p. 31.)

*

[Extract from the oral argument of Mr. James C. Carter, one of the United States' Counsel.]

*

But there is nothing in this Ukase of 1821 importing that the intention of Russia was to make any such pretension as that in the way of authority over the sea. She said this:

SEC. 1. The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs, including the whole of the northwest

coast of America, beginning from Bering's Straits to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Bering's Straits to the South Cape of the Island of Urup, viz., to the 45° 50' northern latitude, is exclusively granted to Russian subjects.

That was a grant of colonial trade, and of colonial trade alone; that is all. And that is what Russia, according to the doctrine of that age, had a perfect right to do. Nothing was more clearly admitted at that time, than that every nation had a right to arrogate to itself the exclusive benefits of trade with its colonies, and to pro

hibit every other nation from engaging in such trade, and to 488 take such measures as might be necessary to enforce the exclusion of other nations. What did Russia next do? Did she assert anything of the nature of Sovereign dominion over the sea? Nothing of the kind.

SEC. 2. It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia as stated above, but also to approach them within less than a hundred Italian miles. The transgressor's vessel is subject to confiscation along with the whole cargo.

Mr. Justice HARLAN. That is not an absolute doctrine now. Mr. CARTER. It is an admitted doctrine now. Every nation has a right to claim for itself the benefits of its colonial trade. Now all that Russia undertook to do was to protect an exclusive grant of its colonial trade; and it adopted the measure-a familiar one in that age of interdicting the approach of a foreign vessel within a certain line of the coast. *

*

[Extract from the reasons for his opinion given by the Hon. Senator Morgan, one of the Arbitrators named by the United States.]

The right of dominion in a sea like Bering Sea or the sea of Okhotsk does not depend on its being separated from water communication with the ocean. If the configuration of the land surrounding it is such as to make it necessary to the peculiar commerce of the country within which it is embayed, or to the defence of such country, or to the proper administration of its powers of government over its own people, it is a right ex debito justitiæ that there should be dominion over such sea.

This is the right that is now the foundation of the exclusive right of several nations to dominion over seas that are not inclosed by the land on their shores, as stated by Sir Robert Phillimore, page 225, as follows:

The exclusive right of the British Crown to the Bristol Channel, to the Channel between Ireland and Great Britain (Mare Hibernicum, Canal de St. George), and to the Channel between Scotland and Ireland is uncontested. Pretty much on the same category are the three straits forming the entrance to the Baltic, the Great and Little Belt, and the Sound, which belong to the Crown of Denmark; the straits of Messina (il faro di Messina, fretum Siculum), once belonging to the Kingdom of the Sicilies; the straits leading to the Black Sea, the Dardanelles and Hellespont; the Thracian Bosphorus, belonging to the Turkish Empire. The narrow sea which flow between separate portions of the same kingdom, like the Danish and Turkish straits, as to other seas common to all nations, like the straits of Messina and, perhaps the St. George's Channel, the doctrine of innocent use is, according to Vattel, strictly applicable.