whatever country he may have originally belonged, he is justiciable everywhere, being reputed out of the protection of all laws and privileges whatever12 Concurren- § 171. There are however portions of the sea, upon ralty with which if offences be committed, they are not merely Jurisdic- regarded as offences against the Peace of the Sea, but cy of Admi National tion. National jurisdiction over the offences against the Peace of a Nation. Thus although the jurisdiction of the Admiralty travels everywhere with the flow of the tide, yet when the Sea approaches the territory of a Nation or passes within the headlands of its coast, an offence committed upon tidal waters may become an offence not merely against the Peace of the Sea, but against the Peace of the Nation, and accordingly will be cognisable by the Civil Courts of the Nation as well as by the Admiralty Court. By practice, indeed, the Admiralty Jurisdiction over tidal rivers is restricted to such portions of them as are below the first bridges 13 (infra primos pontes) seawards. Above the first bridges, which are effective impediments to free passage to or from the sea, the Civil Law of the Nation is of exclusive force: below that point, until we reach the High Seas, the Civil Law of the Nation operates concurrently with the Maritime Law of Nations. § 172. It becomes necessary therefore to inquire what portion of the open sea is by the practice of open sea. Nations, held to be within the operation of the Territorial Law of a Nation. "It is of considerable importance," writes Vattel1, "to the safety and welfare of States, that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of 12 Life of Sir Leoline Jenkins, Tom. II. p. 714. 13 Spelman's Reliquiæ. Godol phin, Adm. Jurisd. p. 134. cf. 15. Rich. II. c. 3. 14 Droit des Gens, L. I. § 288. trading Nations, and molest their navigation." 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 cannot, with convenience to other Nations, be a variable distance, depending on 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 14. That distance, by consent, is now taken to be a Maritime League seawards along all the coasts of a Nation. Beyond the distance of a sea-league from its coasts, the Territorial Laws of a Nation are, strictly speaking, not operative. It may happen that a Nation chooses to extend its own Laws over its National vessels wherever they may be navigated on the High Seas, but however general and comprehensive the phrases used in the Municipal Law may be, they must be always restricted in their construction to the citizens of the State to which the vessel belongs 15, and to the mutual relations between such citizens, and cannot be extended to the vessels of other Nations, or to the persons on board of them. § 173. Writers on Public16 Law have spoken of the Maritime jurisdiction open sea (mare vastum) within the distance of a Maritime League along the coasts of a Nation as its tion. Maritime Territory (See-Gebiet). If the Law of Nations be held to be a portion of the Law of each Nation Territorial guished dictional waters. in such matters as are within its scope, then there may be no valid objection to the use of the phrase Maritime Territory in the sense of Territory subject to the Law of the Sea, but inasmuch as the term territory in its proper sense is used to denote a district within which a Nation has an absolute and exclusive right to set Law, some risk of confusion may ensue if we speak of any part of the open sea over which a Nation has only a concurrent right to set Law, as its Maritime Territory. It would tend to greater clearness, if Jurists were to confine the use of the term Maritime Territory to the actual coasts of a Nation, or to those portions of sea over which a Nation by practice is entitled to exclusive jurisdiction, and over which its Territorial Law has paramount force and operation, and were to designate the extent of tidal waters over which the Territorial Law of a Nation operates concurrently with the Law of Nations. as its Jurisdictional Waters17. $174. If a sea is entirely enclosed by the Territory of a Nation, and has no other communication from Juris with the Ocean than by a channel of which that Nation may take possession, it appears that such a sea is no less capable of being occupied and becoming property than the land, and it ought to follow the fate of the country that surrounds it 18. The Black Sea, whilst its shores were in the exclusive possession of the Ottoman Porte, was an instance of a Territorial Sea of this character. So likewise Straits, which serve as a communication between two seas, and of which the shores on both sides are the Territory of one and the 17 Vattel, L. I. § 292. Wolff, ment in the Schooner Fame, § 128. 3 Mason's American Reports, p. 152. 18 Mr. Justice Story has adopted this expression in his judg same Nation, are capable of being reduced into the possession of that Nation. of that Nation. In the same manner a bay of the Sea, the shores of which are the Territory of one and the same Nation, and of which the entrance may be effectively defended against all other Nations, is capable of being reduced into the possession of a Nation. "By this instance," writes Grotius 19, "it seems to appear that the property and dominion of the Sea might belong to him who is in possession of the lands on both sides, though it be open above as a gulf, or above and below as a strait, provided it be not so great a part of the Sea, as when compared with the lands on both sides, it cannot be supposed to be a portion of them." Puffendorf 20, to the same effect, says, "that gulfs and channels or arms of the Sea are, according to the regular course, supposed to belong to the people with whose lands they are encompassed." Whenever a Nation has an exclusive right over an entire sea, or over a bay, or over straits, no other Nation can claim a right of navigation therein against its will. But in case the opposite sides of a bay or strait are inhabited by different Nations, then under the general principle of the Law of Nations, each Nation has a right to go to the central line, drawn at low water mark, as the limit of its maritime territory". But although the territorial limit of either Nation for purposes of absolute jurisdiction may not extend beyond the central deep-water line, yet the right of innocent use of the entire bay or strait for the purposes of navigation or passage may be common to both Nations. Such a right does not destroy the territorial jurisdiction of each Nation as far as the middle of the stream, but it 19 De Jure Belli et Pacis, L. II. c. 3. § 8. 20 Law of Nature and of Nations, L. IV. c. 5. § 8. 21 Ibid. Prescriptive right is in the nature of an easement, as it is called in English Law, or a servitude, as it is termed in the Roman Law 21. It is in fact analogous to the right of private way over the land of another. This right of passage and navigation must exist as a common right in all those cases, where such passage or navigation is ordinarily used by both Nations, and is indispensable for their common access to their own shores. A river or bay may be so narrow, or so irregular, or so liable to difficulties from winds, waves and currents, that it cannot be navigated by either Nation, without each having a right of passing over the whole waters at all times. If in such a case no exclusive right is recognised in either Nation, the constant use by both is a conclusive proof of a common right of passage and navigation in both. § 175. In the case of portions of the Sea, a Nation over por may have a peculiar possession of them, so as to tions of the exclude the universal or common use of them by Sea. other Nations 22. Lord Stowell held that portions of the Sea might be prescribed for23; and Mr. Justice Story deemed it possible that a Nation might have an exclusive use founded on the acquiescence or tacit consent of other Nations. There is no inconsistency between these views and those of Grotius, who says, "that he who has occupied any part of the Sea cannot lawfully hinder the navigating therein of ships that are unarmed, and give no room to apprehend danger;" for Grotius must be understood as speaking of the natural right of a Nation, and not of an instituted right founded on the tacit consent of other 21 Instit. II. Tit. 3. De Servitutibus. Hugo, Histoire de Droit Romain, T. I. § 202. Klüber, § 137. 22 Klüber, $133. 23 The Schooner Fame, 3 Mason's Repts., p. 150. The Twee Gebroeders, 3 Rob. p. 339. |