Other publicists, jurists and authorities for this doctrine are: Neyron, Azuni, Heffter, Sir Travers Twiss, Fiore, Gessner, FunckBrentano & Sorel, Hall, Ferguson, Rivier, Despagnet, Liszt, Nys, Oppenheim, Supreme Court of Massachusetts, Supreme Court of the United States."

The position of Great Britain in the Fur Seal Arbitration in 1893 and before the Alaskan Boundary Tribunal in 1903 is inconsistent with its present position."

It being determined that, in the absence of any assertion of jurisdiction based upon long-continued usage with the acquiescence of other powers, or some agreement by treaty extending the territorial jurisdiction of the adjacent state, the power to defend was the sole test of a territorial bay, there remains only to be determined what distance was the limit of defense in 1818.

It is a matter of common knowledge that the limit of cannon range in 1818 was approximately three marine miles and cannon-shot and three marine miles came to be identified as the rule of measurement. Azuni, writing in 1795 (citing from the American edition of 1806of his work, The Maritime Law, p. 205), stated:

It would be reasonable then, in my opinion, without inquiring whether the nation in possession of the territory has a castle or battery erected in the open sea, to determine definitively that 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.

Neyron: Principes du Droit des Gens Européen Conventionnel et Coutumier, published at Brunswick, 1783, p. 239; G. F. de Martens: Précis du Droit des Gens Moderne de l'Europe, published in 1785, French edition of PinheiroFerreira, 1864, sections 40-42, 153; Azuni: The Maritime Law of Europe, part 1, ch. 2, art. 3, sec. 17, published in 1796, American edition (1806), vol. 1, pp. 221-2; part 1, ch. 2, art. 2, sec. 15, p. 205; part 1, ch. 3, art. 1, sec. 5, p. 225; Heffter: Le Droit International de l'Europe, published in 1844, French edition 1883, secs. 75-76, p. 171 et seq.; Sir Travers Twiss: Law of Nations, published in 1861, edition of 1884, p. 292 et seq., p. 295; Fiore: Nouveau Droit International Public, published in Italian, 1865, French translation by Antoine of second edition, 1885, secs. 801-3, 808-9; Gessner: Le Droit des Neutres sur Mer, published in 1865, p. 16 et seq.; Funck-Brentano and Sorel: Précis du Droit des Gens, published in 1877, edition of 1900, p. 375; Hall: International Law, published in 1880, fifth edition 1904, p. 150 et seq.; Ferguson: Manual of International Law, published in 1884, vol. 1, p. 397; Pradier-Fodéré: Traité de Droit International Public, published in 1885, vol. 2, sec. 661; Rivier: Principes du Droit des Gens, published in 1896, vol. 1, p. 153; Despagnet: Cours de Droit International Public, published in 1894, second edition, 1899, secs. 413, 415; Liszt: Das Völkerrecht, published in 1898, edition of 1907, p. 91; Westlake: International Law, published in 1904, vol. 1, p. 184 et seq.; Nys: Le Droit International, published in 1904, vol. 1, p. 446; Oppenheim: International Law, vol. 1, pp. 246, 241, 247, 333; Manchester vs. Massachusetts, Supreme Court of the United States, vol. 139, U. S. Reports, p. 240; Commonwealth vs. Massachusetts, Supreme Court of Massachusetts Reports, vol. 152, p. 230.

b British Case, Fur Seal Arbitration; British Counter Case, Alaskan Boundary Tribunal.

Lord Stowell, in 1801, in the case of the Twee Gebroeders, 3 Rob., 336-9, held:

In the sea, out of the reach of cannon-shot universal use is presumed. * * * Portions of the sea are prescribed for; so are * * But the gen

*

rivers flowing through contiguous states. eral presumption certainly bears strongly against such exclusive rights and the title is a matter to be established, on the part of those claiming under it, in the same manner as all other legal demands are to be substantiated by clear and competent evidence.

The same authority, in delivering the opinion in 1800, in the Twee Gebroeders, Alberts, Master, 3 Rob., 162-3, said:

She was lying in the eastern branch of the Eems, within what may I think be considered as a distance of three miles at most from East Friesland. * ** I am of opinion that the ship was lying within those limits, in which all direct hostile operations are by the law of nations forbidden to be exercised,

Heffter: Le Droit International de l'Europe, published in 1844, French edition of 1883, section 75:

Common usage has established the range of cannon as the distance within which it is not lawful to trespass, except in exceptional cases; a line of limitation which not only has obtained the support of Grotius, Bynkershoek, Galiani, and Klüber but has likewise been established by the laws and regulations of many nations. * * * Now it is considered ordinarily as three marine miles.

Sir Robert Phillimore in his Commentaries upon International Law, first published in 1854 (citing from edition of 1879, vol. I, page 274), stated:

But the rule of law may be now considered as fairly established-namely, that this absolute property and jurisdiction does not extend, unless by the specific provisions of a treaty or an unquestioned usage, beyond a marine league (being three miles), or the distance of a cannon shot from the shore at low tide:-" quousque e terra imperari potest,"" quousque tormenta exploduntur," or "terrae dominium finitur ubi finitur armorum vis,"is the language of Bynkershoek. "In the sea, out of the reach of cannon shot (says Lord Stowell), universal use is presumed." This is the limit fixed to an absolute property and jurisdiction.

Sir Travers Twiss in his work on The Law of Nations, published in 1861 (citing from the edition of 1884, page 292), said:

Upon this principle a neutral nation is held to be entitled to preclude belligerent powers from carrying on mutual hostilities upon the open sea within a certain distance of its coast. That distance as between nation and nation is held to extend as far as the safety of a nation renders it necessary and its power is adequate to assert it; and, as that distance can not with convenience to other nations, be a variable distance depending upon the presence or absence of an

armed fleet, it is by practice, since the introduction of firearms, identified with that distance over which a nation can command obedience to its empire by the fire of its cannon. That distance, by consent, is now taken to be a maritime league seaward along all the coast of the nation. Beyond the distance of a sea league from its coasts the territorial laws of a nation are, strictly speaking, not operative.

Calvo: Le Droit International Theorique et Pratique, published in 1868, French edition of 1896, section 356:

From these general principles it is easy to draw the conclusion that territorial waters should include only the space capable of being defended from the mainland or as serving as a base for attacks on the adjacent coast. Since the invention of fire arms this space has generally been limited to three nautical miles from the shore line at low tide. In this zone the exercise of territorial sovereignty is absolute, uncontested and exclusive of the rights of all other nations.

Hall, in his Treatise on International Law, published in 1880 (citing from the fifth edition, 1904, page 154), said:

In any case the custom of regarding a line three miles from land as defining the boundary of the marginal territorial waters is so far fixed that a state must be supposed to accept it in the absence of express notice that a larger extent is claimed.

Pradier-Fodéré: Traité de Droit International Public, published in 1885, vol. 2, section 631:

As a matter of fact, the question of the extent of the territorial sea is established by the usage of states and by conventions. Thus, a common usage has established the range of cannon shot as denoting the space designated by the name territorial sea, and this custom has been fixed by laws and regulations of many states as well as by conventional law. We may, therefore, consider the formula of Bynkershoek that the sovereignty of the land ends where the force of arms ends as having to-day become the general rule of international law. SEC. 633. If the distance of three geographical miles, calculated from low-water mark, in a way forms accepted law, nothing prevents states from fixing, among themselves, by treaty, a different limit to the territorial sea. But the extent thus fixed is clearly only obligatory upon the contracting parties, and other powers not parties to the treaty, or who have not admitted it, remain subject to the common law.

Fiore: Le Droit International Codifié, published in 1890, sec

tion 205:

The territorial sea embraces the waters washing the coast of a state to a distance determined by the necessities of defense, by the need of guaranteeing the security of the territory and safeguarding the interests of the commerce of the state. By customary law the territorial sea extends to three miles from low water mark.

Professor L. Oppenheim, Whewell Professor of International Law at Cambridge, in his work on International Law, vol. 1, page 241, says:

Since at the end of the 18th century the range of artillery was about three miles or one marine league, that distance became generally recognized as the breadth of the maritime belt.

It is certain that, whether the customary law of nations in 1818 was that the range of cannon or three marine miles was the limit of the territorial sea, Great Britain and the United States had identified before 1818 the cannon-shot rule with the three-mile rule."

AUTHORITIES AND PRECEDENTS REFERRED TO IN THE BRITISH

CASE.

The opinions of jurists and publicists, relied upon in the British Case to establish that the usage of nations is inconsistent with the position of the United States, including Phillimore, Hall, Azuni, Bluntschli, Vattel, and Hautefeuille, have been cited, with many others, in this argument as supporting the view of the United States. An examination of these authorities will disclose that their opinions support the position of the United States.

The United States does not deny that special agreements between various powers have been entered into providing that all bays which do not exceed ten miles in width are territorial bays; and that such treaties or agreements are binding upon the nationals of the signatory powers. The convention of August 2, 1839, between Great Britain. and France; the convention of 1867, between the same powers; the agreement between Great Britain and Germany in 1874; the similar agreement between the German and the Danish Governments in 1880; the North Sea Fisheries Convention of May 6, 1882, were all extensions of the territorial sea, and were so regarded.

The proceedings of the Institute of International Law in 1894, show that the opinion of that learned body, that the maritime belt

a Lord Stowell: Twee Grebroeders, 3 Rob., 162-3; 336-9; The Anna, 5 Rob., 373; Unratified Treaty of 1806, U. S. Counter Case Appendix, 22; Note from Mr. Jefferson to M. Genet, Minister of France in United States, British Case Appendix, 56; Note from Mr. Jefferson to Mr. Hammond, British Minister in the United States, British Case Appendix, 57; Extract from note of Mr. Adams to Mr. Monroe, stating conversation with Lord Bathurst, British Case Appendix, 65; Note from Mr. Adams to Lord Bathurst, British Case Appendix, 67; Note from Lord Holland and Lord Auckland to Lord Howick, British Case Appendix, 61; Note from Messrs. Monroe and Pinkney to Mr. Madison, Secretary of State, U. S. Counter Case Appendix, 96; Treaty between United States and Great Britain, February 29, 1892, U. S. Compilation of Treaties in Force, 1904, 355; Award of Tribunal of Arbitration under treaty of February 29, 1892, U. S. Compilation of Treaties in Force, 1904, 357.

should be extended to six miles and the width of territorial bays to twelve miles, was in effect a proposal to extend the generally recognized limits of territorial jurisdiction and was based upon changed conditions in the power to defend."

The British Case cites, from Hall on International Law, his references to more extensive claims to maritime jurisdiction by other nations. The present submission does not involve the examination of those exceptional cases "where continuous and established usage has sanctioned a greater width " of the territorial sea. The fact is well established that there are exceptions, based upon long continued assertion of jurisdiction acquiesced in by other powers, but such exceptions require no examination in this arbitration. There is no evidence before this Tribunal of any claim based on long continued assertion of jurisdiction over bays on the non-treaty coasts of the British Dominions in North America against the fishing vessels of the United States, with the acquiescence of the United States.

STATUTES.

In this connection the statutes cited in the British Case will be examined.

Only three of the statutes referred to were enacted prior to 1818. The Act, 47 Geo. III, c. 12, s. 15, was enacted by the legislature of Lower Canada in 1807. This statute does not assume to assert jurisdiction over the Bay of Chaleurs. In any event, in 1807 the fishing vessels of the United States were at liberty to fish in the Bay of Chaleurs, under the terms of the treaty of 1783. The statute does not refer to foreigners and the presumption is that the act has no extraterritorial application to foreigners.

In Regina vs. Keyn (L. R., 2 Ex. Div., p. 210) Chief Justice Cockburn said:

For where the language of a Statute is general, and may include foreigners or not, the true canon of construction is to assume that the Legislature has not so enacted as to violate the rights of other nations.

The Act, 50 Geo. III, c. 5, was enacted by the legislature of New Brunswick in 1810, and was an act for the security of navigation and authorized the erection of beacons and buoys in Miramichi Bay.

a Annuaire de l'Institut de Droit International, Tome XII1, 1894.
British Case, 114.

C British Case, 113-114.