ARTICLE V. All spirituous liquors, fire-arms, other arms, powder, and munitions of war of every kind, are always excepted from this same commerce permitted by the preceding article; and the two Powers engage, recip rocally, neither to sell, nor suffer them to be sold, to the natives by their respective citizens and subjects, nor by any person who may be under their authority. It is likewise stipulated that this restriction shall never afford a pretext, nor be advanced, in any case, to authorize either search or detention of the vessels, seizure of the merchandize, or, in fine, any measures of constraint whatever towards the merchants or the crews who may carry on this commerce; the high contracting Powers reciprocally reserving to themselves to determine upon the penalties to be incurred, and to inflict the punishments in case of the contravention of this article by their respective citizens or subjects. "This treaty excluded the right of the United States to make new settlements on the northwest shore of America, and the adjacent islands north of 54 degrees 40 minutes of latitude, and of Russia to make settlements south of that line. An analogous treaty was concluded in the same year between Great Britain and Russia. By these treaties the free navigation of the Pacific was recognized. As to new settlements, they bound only the contracting parties." Fiore, Droit Int. 2d ed. by Antoine, 1885, § 726. The territorial authority of a nation extends over the continguous seas, certainly within the range of cannon-shot, and perhaps further, according to the nature of the coast. Church r. Hubbart, 2 Cranch, 187, 235. (See the Ann, 1 Gall., 62.) There is no fixed rule prescribing the distance from the coast within which a nation can make seizures to prevent the violation of its laws. Church v. Hubbart, 2 Cranch, 187, 235. "The territorial jurisdiction of a nation over waters within its jurisdiction, and within the three-mile zone of the shore, does not extend to vessels using the ocean as a highway and not bound to a port of the nation. And a vessel may pass, in its voyage along the shore of another nation, without subjecting itself to the law of the littoral sovereign, and retain all the rights given by the law of its flag. This authority or claim of jurisdiction over the ocean within the three-mile zone of the coast is said and shown by Lord Chief Justice Cockburn to be a shrinkage of the claim of jurisdiction over the mare clausum, which was never acknowledged, and is now abandoned, and to exist only for the protection and defense of the coast and its inhabitants. Mr. Webster, in his tetter to Lord Ashburton, quoted in Wheaton's Law of Nations, infra, § 38, says: A vessel on the high seas, beyond the distance of a marine league from the shore, is regarded as part of the territory of the nation to which she belongs, and subjected, exclusively, to the jurisdiction of that nation. If against the will of her master or owner she be driven or carried nearer to the land, or even into port, those who have, or ought to have control over her, struggling all the while to keep her upon the high seas,' she remains within the exclusive jurisdiction of her Government.' This was written in the case of the Creole, an American vessel, carried into Nassau by persons who had been slaves in Virginia. The same reason which governs in the case of a vessel driven by weather or by S. Mis. 162-VOL. I-- -8 113 violence within the three-mile jurisdiction, applies to a vessel the neces sities of whose voyage compel her to pass within the same zone.” Henry on Adm. Jur. (1885), § 89. On the other hand, the sovereign of the shore has a right, by international law, to require that no action be taken by ships of other friendly nations by which his subjects should be injured, or the peace of the shore disturbed. That a sovereign has a police jurisdiction over all offenses committed by means of shot from a ship taking effect on shore is maintained by very high authority. "The extension," says Perels (Das Internationale öffentliche Seerecht der Gegenwart, § 13), "of the line depends on the range of cannon shot at the particular period. It is, however, at such period the same for all coasts." To this effect is cited Martens, Précis i, p. 144; Bluntschli, § 302; Heffter, § 75: Mr. Lawrence thus states the rule: "The waters adjacent to the coast of a country are deemed within its jurisdictional limits only because they can be commanded from the shore." Lawr. Wheaton, 846. According to Gessner: "Les droits des riverains ont été augmentés par l'invention des canons rayes." As far as a State can protect itself, so far does its jurisdiction extend. Kent, i, p. 158. "La plus forte portée de canon selon le progrès commun de l'art à chaque époque." "Inasmuch as cannon-shot can now be sent more than two leagues, it seems desirable to extend the territorial limits accordingly. The ground of the rule is the margin of sea within reach of the land forces or from which the land can be assailed." Field Int. Code, 2d ed., § 28. "It is probably safe to say," says Mr. Hall (Int. Law, 127), "that a state has the right to extend its territorial waters from time to time at its will, with the now increased range of its guns, though it would undoubtedly be more satisfactory that an arrangement upon the subject should be arrived at by common consent." See 32 Alb. Law. Jour., 104. The reason originally given for the three-mile limit was that cannonballs were, in those days, not known to exceed three miles in range, and that if the three-mile limit was secured, a sovereign would be fully able to protect his shores from marauders, or from belligerent cannonade at sea from which he, a neutral, might suffer. This position, as is mentioned by Mr. Seward, was taken by the French Government at the time of the sea-duel between the Kearsarge and the Alabama, in 1864. Nor does this reason apply exclusively to hostile operations. We can conceive, for instance, of a case in which armed vessels of nations, with whom we are at peace, might select a spot within cannonrange of our coast for the practice of their guns. A case of this character took place not long since in which an object on shore was selected as a point at which to aim, for the purpose of practicing, projectiles to be thrown from the cruiser of a friendly power. Supposing such a vessel to be four miles from the coast, could it be reasonably maintained that we have no police jurisdiction over such culpable negligence? Or could it be reasonably maintained that marauders, who at the same time would not be technically pirates, could throw projectiles upon our shores without our having jurisdiction to bring them to justice? The answer to such questions may be drawn from the reason that sustained a claim for a three-mile police belt of sea in old times. This reason authorizes the extension of this belt for police purposes to nine miles, if such be the range of cannon at the present day. This, it should be remem bered, does not subject to our domestic jurisdiction all vessels passing within nine miles of our shores, nor does it by itself give us an exclusive right to fisheries within such a limit, or within such greater limit as greater improvements in gunnery might suggest; nor would it authorize the Executive to warn off, within these extended limits, foreign ships by 2 proclamation similar to that of President Jefferson, in 1807, so as to prevent them from communicating with the shore. For the latter purposes the three-mile limit is the utmost that can be claimed. By the British territorial waters act of 1878 "an offense committed. by a person, whether he is or is not a subject of Her Majesty, on the open sea, within the territorial waters of Her Majesty's dominious, is an effense within the jurisdiction of the admiral, although it may have been committed on board or by means of a foreign ship;" and it was declared in the preamble of the statute that "the rightful jurisdiction of Her Majesty, her heirs and successors, extends, and has always extended, over the open seas adjacent to the coasts of the United Kingdom, and of all other parts of Her Majesty's dominions, to such a distance as is necessary for the defense and security of such dominions." It is, however, further provided that "the territorial waters of Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom or the coast of some other part of Her Majesty's dominion, as is deemed by international law to be within the territorial sovereignty of Her Majesty, and for the purpose of any offense declared by this act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast, measured from lowwater mark, shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." This statute in one place apparently makes the test to consist in the protection of subjects, in another place falls back on the marine league. So far as concerns persons injured on shore, the former is on principle the test; and it may also be argued to be the test in reference to belligerent cruisers undertaking to cannonade each other within cannon-shot of the shore. So far as concerns injuries at sea, inflicted by a foreigner on a subject, the question is still open. See 2 Steph. Hist. Cr. Law, ch. xvi; Perels, § 13. See, also, R. v. Keyn, L. R. 2 Ex. D., 63; 13 Cox., C. C., 403, cited and criticized, VIII. SHIP NATIONALIZED BY FLAG. $ 33. As to impressment, see infra, § 331. As to ship papers and sea-letters, see infra, § 408. As to jurisdiction over crimes at sea, see infra, § 41. "Every merchant vessel on the seas is rightfully considered as part of the territory of the country to which it belongs. The entry, therefore, into such vessel, being neutral, by a belligerent, is an act of force, and is prima facie a wrong, a trespass, which can be justified only when done for some purpose allowed to form a sufficient justification by the law of nations. But a British cruiser enters an American merchant vessel in order to take therefrom supposed British subjects, offering no justification therefor, under the law of nations, but claiming the right under the law of England respecting the King's prerogative. This cannot be defended. English soil, English territory, English jurisdiction, is the appropriate sphere for the operation of English law. The ocean is the sphere of the law of nations, and any merchant vessel on the seas is, by that law, under the protection of the laws of her own nation, and may claim immunity unless in cases in which that law allows her to be entered or visited." Mr. Webster, Sec. of State, to Lord Ashburton, Aug. 8, 1842. MSS. Notes, Great Britain; 6 Webster's Works, 317. For other portions of this letter, see infra, § 331. "In the letter of Mr. Webster to Lord Ashburton, of the 1st August, 1842, the principles of the law of nations which apply to the subject were discussed with great clearness and ability. To that letter I refer you. It will be perceived that Mr. Webster does not 'propose the introduction of any new principle into the law of nations.' He contends that 'a vessel on the high seas, beyond the distance of a marine league from the shore, is regarded as part of the territory of the nation to which she belongs, and subjected exclusively to the jurisdiction of that nation; and consequently, if those who have charge of her endeavor, in good faith, to keep her at sea, that is, within that exclusive jurisdiction, and if, contrary to their will, she be forced within another jurisdiction by stress of weather, by violence, or other necessity, she does not cease to be within the jurisdiction of her own country. In this case, however, such jurisdiction is not exclusive to all purposes. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there, by her master and owners, she and they must doubtless be answerable to the laws of the place.' "Mr. Webster further contends that by the comity of the law of nations, and the practice of modern times, merchant vessels entering open ports of other nations for the purpose of trade, are presumed to be allowed to bring with them and to retain, for their protection and government, the jurisdiction and laws of their own country.' These, of course, extend both over persons and things, subject always to the laws of the place, in cases of crimes, contracts, &c., as above mentioned. The right here claimed is not in derogation of the sovereignty of the place where the vessels may be, but is presumed to be allowed by that sov ereignty." Mr. Upshur, Sec. of State, to Mr. Everett, Nov. 28, 1843. MSS. Inst., Great "I claim a total immunity for the vessels of the United States' upon the common and unappropriated parts of the ocean,' to use the expres sion of Lord Stowell, in time of peace, under all circumstances. There is no case in which a forcible entrance into them can be justified by another power; that is, there is no case in which such entry is a lawful act. It may be an excusable one under peculiar circumstances, of entrance and of conduct, which might well induce the aggrieved party to renounce all claim for reparation. As, for instance, if a piratical vessel were known to be cruising in certain latitudes, and a national armed ship should fall in with a vessel sailing in those regions, and answering to the description given of the pirate, the visitation of a peaceable merchantman in such case, with a view to ascertain her true character, could give no reasonable cause of offense to the nation to which she might belong, and whose flag she carried." Mr. Cass, Sec. of State, to Mr. Osma, May 22, 1858. MSS. Notes, Peru. (See infra, § 327.) "The jurisdiction of every independent nation over the merchant vessels of other nations lying within its own harbors is absolute and exclusive. Nothing but its authority can justify a ship of war belonging to another nation in seizing or detaining a vessel thus situated for any cause or pretext whatever. There is no power on earth which would assert this principle with more determination and energy than the United States, and, therefore, there is no power which ought more carefully to avoid any violation of it in their conduct towards other nations." Mr. Buchanan, Sec. of State, to Mr. Wise, Sept. 27, 1845. MSS. Inst., Brazil. "Referring to the case of Albert Allen Gardner, master of the American ship Auna Camp, tried in the county court at Liverpool, in May last, copies of certain papers relating to which were forwarded to you by General Badeau, I desire to call your attention to the claim of jurisdiction put forth by the local common-law courts of Great Britain in this and other similar cases. "It seems to be claimed by the courts in question that their jurisdiction extends to the hearing and determining of causes arising upon complaints between masters and mariners of vessels of the United States, not only when the occurrences upon which the complaint may be founded took place within British ports or waters, but also when the offense which is made the ground of action was committed on board the vessel on the high seas. "The exercise of this jurisdiction by the local common-law courts at Liverpool has already been the cause of much annoyance and, in some instances, serious inconvenience to masters and owners of American vessels, and if persisted in may affect injuriously the interests of American shipping. “The courts of the United States, even those possessing admiralty jurisdiction, have repeatedly declined to take cognizance of cases of this nature when the parties to the action were seamen and masters of foreign vessels. The reasons assigned by the courts of the United States for refusing to entertain jurisdiction of such cases are believed |