ities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy, this court ought not to take cognizance of a case entirely between foreigners, than from any positive incapacity to do so. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court, that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it."

But, although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris, that is, where they arise under the common law of nations, special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be, whether it is expedient to exercise it. See 2 Parsons Ship. and Adm., 226, and cases cited in the notes. In the case of The Jerusalem, 2 Gall. 191,

Justice Story examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an Admiralty Court can take jurisdiction on the principle of the civil law, that in proceedings in rem the proper forum is the locus rei sita. He added: "With reference, therefore, to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy."

Justice Story's decision in this case was referred to by Dr. Lushington with strong approbation in the case of The Golubchick, 1 W. Rob., 143, decided in 1840, and was adopted as authority for his taking jurisdiction in that case.

In 1839, a case of collision on the high seas between two foreign ships of different countries (the very case now under consideration) came before the English Admiralty. The Johann Friederich, 1 W. Rob. 35. A Danish ship was sunk by a Bremen ship, and on the latter being libelled, the respondents entered a protest against the jurisdiction of the court. But jurisdiction was retained by Dr. Lushington who, amongst other things, re

marked: "An alien friend is entitled to sue [in our courts] on the same footing as a British-born subject, and if the foreigner in this case had been resident here, and the cause of action had originated infra corpus comitatus, no objection could have been taken." Reference being made to the observations of Lord Stowell in cases of seamen's wages, the judge said: "All questions of collision are questions communis juris; but in case of mariners' wages, whoever engages voluntarily to serve on board a foreign ship, necessarily undertakes to be bound by the law of the country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most important distinctions, therefore, respecting cases where both parties are foreigners is, whether the case be communis juris or not.

If these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost, for she might never return, and, if she did, there is no part of the world to which they might not be sent for their redress."

In the subsequent case of The Griefswald, 1 Swabey, 430, decided by the same judge in 1859, which arose out of a collision between a British barque and a Persian ship in the Dardanelles, Dr. Lushington said: "In cases of collision, it has been the practice of this country, and, so far as I know, of the European States and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable."

The subject has frequently been before our own Admiralty Courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases. and that they will exercise it unless special circumstances exist. to show that justice would be better subserved by declining it. Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts. Neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one communis juris, and can generally be more impartially and satisfactorily adjudicated by the court of a third nation having jurisdiction of the res or parties, than it

could be by the courts of either of the nations to which the litigants belong. As Judge Deady very justly said, in a case before him in the district of Oregon: "The parties cannot be remitted to a home forum, for, being subjects of different gor. ernments, there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found." Bernhard v. Creene, 3 Sawyer, 230, 235.

As to the law which should be applied in cases between parties, or ships, of different nationalities, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted. .

The decree of the Circuit Court is affirmed.

NOTE. It was a principle of the Roman law that the seas are free and incapable of appropriation. The Mediterranean, however-the only sea which was of much importance to the Romans-came ultimately to be surrounded by Roman territory and was dominated by Roman fleets. Until comparatively recent times, pirates were a serious danger to maritime commerce, and for their suppression, as well as for other reasons, the states which succeeded the Roman empire asserted jurisdiction not only over their marginal waters but over vast areas of the high seas. Venice claimed jurisdiction over the whole of the upper Adriatic and her claim to exact toll from vessels navigating therein was defended by the famous Paul Sarpi. The King of Denmark and Norway claimed the Sound and all the waters lying between Denmark and Iceland. The pretensions of both Venice and Denmark were based on the fact that they controlled the opposite shores and hence should control the intervening waters. More extravagant than any of these claims were those put forward by Spain and Portugal who in the sixteenth century divided the great oceans between them,-Spain taking under her exclusive jurisdiction the western portion of the Atlantic, the Gulf of Mexico, and the Pacific, while Portugal asserted similar authority in the eastern portion of the Atlantic south of Morocco and in the Indian Ocean Such absurd claims inevitably provoked protest, and England was in a favorable position to oppose them, for, prior to the accession of James I in 1603, she had never asserted for herself any exclusive rights over any but adjacent waters. Even when Henry V, after the conquest of France and the recognition of himself as the heir to the French Crown, was urged by Parliament to levy tribute on all foreign ships in the English Channel, he refused. Hence when the Spanish Ambassador came to protest against Sir Francis Drake's plundering of Spanish merchantmen on the coast of South America, the reply of Queen Elizabeth was a statement both of the practice of her prede

cessors as well as of the doctrine which now prevails. She said:

All are at liberty to navigate that vast ocean, since the use of the sea and the air is common to all. No nation or private person can have any title to the ocean, for neither the course of nature nor public usage permits any occupation of it.

Camden, Annales Rerum Anglicarum, 309.

The doctrine here stated was the basis of Grotius' well-known essay Mare Liberum, which was published in 1609. This in turn provoked John Selden to write Mare Clausum, not published, however, until 1635, which is the classic exposition of the doctrine that the high seas can be appropriated.

May a state protect itself by taking defensive measures on the high seas? In Church v. Hubbart (1804), 2 Cranch, 187, a claim to such a right was sustained, but the doctrine of that case has been subjected to severe criticism. See especially Wheaton (Dana), note 108. But the decision has the weighty support of Lord Stowell in Le Louis (1817), 2 Dodson, 210, and of Chief Justice Cockburn in The Queen v. Keyn (1876), L. R. 2 Ex. Div 63, 214. "Higher judicial authority to support a principle of international law could not be found," Piggott, Nationality, II, 49. The action of Spain in 1873 in seizing the Virginius on the high seas while it was employed in aid of an insurrection in Cuba against Spanish authority was an act of self-defense which was justified by facts ascertained after the capture of the vessel, and which was no less an act of self-defense because committed on the high seas. The Virginius was carrying an American register fraudulently obtained, but even if the register had been valid the employment of the vessel on an errand hostile to Spain justified the Spanish authorities in seizing it. The brutal slaughter of the persons found on board presents considerations of another character. See Cobbett, Cases and Opinions, I, 171; Hyde, I, 114; Moore, Digest, II, 895. See also Rose v. Himely (1808), 4 Cranch, 241; Hudson v. Guestier (1810), 6 Ib. 281; The Apollon (1824), 9 Wheaton, 362; In re Cooper (1892), 143 U. S. 472; Cucullu v. Louisiana Insurance Co. (1827), 5 Martin, N. S. (La.) 464; United States v. Swan (1892), 50 Fed. 108; United States v. The Kodiak (1892), 53 Fed. 126; The Alexander (1894), 60 Fed. 914. Sir Travers Twiss, in The Law of Nations Considered as Independent Political Communities, sec. 190, Sir Robert Phillimore in Commentaries, I, 276, Westlake, I, 175, and Pitt Cobbett, Cases and Opinions, I, 144, deny that any right to take defensive measures on the high seas is admitted in international law, although they concede that nations may through comity acquiesce in its exercise. But Oppenheim, I, 261, holds that long continued practice unopposed by the nations concerned has resulted in the incorporation of the principle in the body of international law. This seems a sound view. If the right to adopt defensive measures beyond a country's own jurisdiction be admitted at all, and the discussion provoked by such cases as the destruction of the Caroline in American waters by British forces in 1837 and the seizure of the Virginius on the high seas by Spain in 1873 shows that it is admitted, the legitimacy of such mild preventive measures as that involved in Church v. Hubbart should not

be questioned. For an extended discussion of the British Hovering Acts, see Piggott, Nationality, II, 40-60. For the French practice, see Mérignhac, Traité de Droit International, II, 387. For the American practice see Moore, Digest, I, 725.

A situation which well exemplified the principles laid down in Church v. Hubbart arose in 1864 when the Kearsarge appeared off Cherbourg, France, in pursuit of the Alabama, then lying in that harbor. When a battle was seen to be impending which might take place just beyond the three-mile limit, the French Minister of Foreign Affairs protested to the American Minister in this statement:

That a sea fight would thus be got up in the face of France, and at a distance from their coast within reach of the guns used on shipboard in these days. That the distance to which the neutral right of an adjoining government extended itself from the coast was unsettled, and that the reason of the old rules, which assumed that three miles was the outermost limit of a cannon shot, no longer existed, and that, in a word, a fight on or about such a distance would be offensive to the dignity of France and they would not permit it.

The American Minister replied that the three-mile rule was the only recognized rule, and in this stand he was supported by Secretary Seward. The protest of the French Government seems, however, to have been entirely reasonable, and had any shots from the Kearsage caused damage on the adjacent coast the United States would have been responsible. In fact, the fighting began when the two vessels were about seven miles out, and the Alabama sank when about five miles from land. See Moore, Digest, I, 723.

It is admitted that an offending vessel may be pursued beyond a state's territorial limits and taken upon the high seas, provided the pursuit be instant and continuous, The King v. The Ship North (1905), 11 Exchequer Court of Canada, 141. See also Annuaire de l'Institut de Droit International (1894-95), XIII, 329. Such pursuit, however, may not be prosecuted into the territorial waters of another state, The Itata (1892), Moore, Int. Arb. III, 3067, 3070.

SECTION 5. JURISDICTION OVER MERCHANT SHIPS IN TERRITORIAL WATERS.

REGINA v. ANDERSON.

COURT OF CRIMINAL APPEAL OF ENGLAND. 1868.

11 Cox, Criminal Cases, 198.

Case reserved by Byles, J., at the October Sessions of the Certral Criminal Court, 1868, for the opinion of this court.