Cyclopædia of Political Science, Political Economy, and the Political History of the United States
TERRITORIAL WATERS are all waters within the jurisdictional limits set by international law to an independent state. Such waters*137 comprise: 1, inclosed waters, which are, first, rivers, lakes and other inland waters wholly within the boundaries of a state; second, if the boundaries of a state are rivers or lakes or other inland waters, unless one of the riparian states has a good title to the whole bed of the same, bounding non-navigable rivers to the middle of such streams, bounding navigable rivers to the middle of their deepest channel, and bounding lakes and other inland waters to the middle of the same; and third, ports, bays, straits, sounds or arms of the sea within (intra fauces) headlands belonging to the same state not more than two marine leagues apart; 2, uninclosed waters, or the open sea to the distance of one marine league outward from the line of low-water mark; and, when bays, straits, sounds or arms of the sea are inclosed by headlands belonging to the same state not more than two marine leagues apart, the open sea to a distance of one marine league outward from a line drawn between the two headlands.
—The law relating to inclosed waters is well settled. The state inclosing them within its naturally extended territory has a right of ownership, as well as a right of jurisdiction, over them; and in order that the passageways of commerce and navigation may be subject to public authority and control, the title to the land under water, and to the shore below ordinary high-water mark, in navigable rivers and lakes (in England, and in states which have adopted the form rather than the substance of the English rule, tide waters) and in ports, harbors, bays, straits, sounds or arms of the sea inclosed as above described, is vested in the state for the public use and benefit. Although a state is entitled to exclusive jurisdiction both civil and criminal, over its inclosed waters, usage gives a concurrent criminal jurisdiction over offenses committed on foreign vessels in such waters to the states to which such vessels belong, and the state entitled to exclusive criminal jurisdiction will not exercise it in such cases, the parties being exclusively foreign, unless its authority is invoked, or unless the peace of the country is disturbed.
—The law relating to uninclosed waters is not thoroughly settled. It is the historical result of the assertion by different states at different times of conflicting claims of ownership or jurisdiction over the same or different parts of the open sea. It is a compromise by which all states have practically abandoned the claim of ownership over any part of the open sea, upon the express or tacit assent of all the states that each state is allowed an artificial extension of its territory over the open sea adjacent to its coast, to such a distance as is necessary for its defense and security.
—When modern international law had its rise, few parts of the sea were free from the claims of some European state. England asserted a right of ownership over the sea surrounding Great Britain as far as the coasts of neighboring countries; Spain declared its exclusive right to navigate the gulf of Mexico and the Pacific ocean; Portugal sought to bar the rest of the world from the gulf of Guinea and the Indian ocean; Venice claimed the Adriatic, Genoa the Ligurian, and Denmark the North seas. Sailing without license upon some of these waters was prohibited under penalty of death, and forfeiture of all the offender's goods. Whether originating in capricious assertions of brute force or in substantial services done in policing these seas, many of which were then infested by pirates, some of these claims were so far admitted, that a right of control became established and was recognized by the payment of toll, the furling of flags and other salutes, from which even kings were not exempt.
—From this right of control, as "a dissociation of the ideas of control and property was not then intelligible, the step to the assertion of complete rights of property was almost inevitable." During the sixteenth and seventeenth centuries assertions of proprietary rights based upon prescription, or discovery, or police services, or papal grant, over the open sea, were general, and were maintained with varying success. The physical impossibility of obtaining and keeping exclusive possession of any part of the open sea, the growth of commerce and the consequent recognition of the necessity of the free navigation of the ocean, led to a contest between the advocates of mare clausum and those of mare liberum, which was begun in 1609 by Grotius, and which was ended in 1824-5 by the complete abandonment of the last of these "vain and extravagant pretensions"—the claim of Russia to the Pacific ocean north of fifty-one degrees north latitude. It is now universally admitted that the open or high seas—the ocean and all connecting arms and bays or other extensions thereof not within the territorial limits of any nation—are not the subject either of property or of exclusive jurisdiction, and that the right to navigate these seas is common to all nations and their members, and can be abridged or renounced only by actual consent.
—The first germs of the modern doctrine of uninclosed territorial waters are discoverable in a proclamation 1 of James I. of 1604, which contains the two principles which now limit territorial jurisdiction over the open sea, confining it, 1, to a reasonable distance, and 2, to a distance within which the state can prohibit violence. Grotius, while advocating the freedom of the open sea, admitted that portions of it might be occupied by the state possessing the adjacent land. Bynkershoek, in 1702, formulated the modern rule, which is based upon the necessity of securing peace and protection to the lives, property and industries of the subjects of states who live upon their coasts, and which extends the territorial waters of a state over so much of the open sea as can be defended from its coasts. This, according to Bynkershoek's formula, was as wide a belt of open sea as could be effectively commanded from the coast by cannon, a distance which subsequent writers fixed as one marine league, although to the present time it is often described as a distance of a marine league or as far as cannon shot will reach from the coast. To continental jurists this suggestion of Bynkershoek seemed to afford a reasonable basis for the settlement of conflicting claims over the open sea, and, though widest disagreement regarding the extent of territorial waters continued for a century, the principle has gradually gained recognition that any control over the open sea to be valid must be effective. No mention of a marine league belt of territorial waters appears to have been made in any English court until 1801, and no exhaustive examination of the nature of the rights of a state over such waters, and their extent, was made in any English court till 1876, when a case arose (The Franconia)2 involving the right of England to punish a foreigner for an offense committed while on a foreign vessel on a foreign voyage within a marine league of the English coast. The critical review of the opinions of authoritative writers upon international law, then made, showed that: 1. All these writers acknowledge the right of a maritime state to an extension of its territory, in a qualified sense of the word, over some portion of the adjacent sea beyond low-water mark; 2. Though there is found a great variety of opinion among these writers, as to the distance to which such maritime territory should be allowed, that distance varying (setting aside even more extravagant claims) from 100 to three miles, the present limit, not one of them puts such distance at less than three miles; 3. All the earlier writers, and many of the later writers, maintained, that within the zone of three miles the state had, without qualification, a proprietary as well as a territorial right, so that it might at its pleasure exclude foreign ships from passing along the same; but that others of the later writers contended that the state had a territorial, but not a proprietary, right over the zone, or that, at all events, the innocent use of the zone by foreign ships for the purpose of navigation could not without wrong be interfered with. (2 L. R., Ex. Div., 71, 122, 123.)2—But, as the opinions of publicists, even if there were no disagreement among them, are, at best, only secondary evidence of what international law is, the primary evidence of the fact which these writers assert—the existence of an international agreement to treat any part of the littoral sea as belonging to or under the control of the adjacent state—must be sought in treaties and usage. What these disclose is most authoritatively expressed in the opinion, delivered in the leading case above named, by the late Lord Chief Justice Cockburn, who said: "1. Treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the state shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in the ships of other nations, has never been made the subject-matter of any treaty, or, as a matter of acknowledged right, has formed the basis of any treaty, or has ever been the subject of diplomatic discussion. It has been entirely the creation of the writers on international law. It is true that the writers who have been cited constantly refer to treaties in support of the doctrine they assert. But when the treaties they refer to are looked at, they will be found to relate to two subjects only: the observance of the rights and obligations of neutrality, and the exclusive right of fishing. In fixing the limits to which these rights should extend, nations have so far followed the writers on international law as to adopt the three-mile range as a convenient distance. There are several treaties by which nations have engaged, in event of either of them being at war with a third, to treat the sea within three miles of each other's coasts as neutral territory, within which no warlike operations should be carried on. Again, nations, possessing opposite or neighboring coasts, bordering on a common sea, have sometimes found it expedient to agree that the subjects of each shall exercise an exclusive right of fishing to a given distance from their own shores, and here also have accepted the three miles as a convenient distance. Such, for instance, are the treaties made between this country and the United States in relation to the fishery off the coast of Newfoundland, and those between this country and France, in relation to the fishery on their respective shores; and local laws have been passed to give effect to these engagements. 2. Usage. The only usage found to exist is such as is connected with navigation, or with revenue, local fisheries or neutrality, and it is to these alone that the usage relied on is confined. Usage as to the application of the general law of the local state to foreigners on the littoral sea, there is actually none. No nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of navigation, or has assumed the power of making foreigners in foreign ships passing through these waters subject to its law, otherwise than in respect of the matters to which I have just referred. Nor have the tribunals of any nation held foreigners in these waters amenable generally to the local criminal law in respect of offenses."
—So far, then, as it is settled, the law applicable to uninclosed territorial waters is as follows: 1. The rights, whatever may be their description, of an independent state over such waters, are created by international law, and are evidenced by the assent of nations which "may be expressed by treaty or the acknowledged concurrence of governments, or may be implied from established usage," and in the absence of such proof of assent the opinions of writers on international law are relevant only as tending to show what claims*138 one independent state may exercise over such waters without interference from other independent states. 2. The rights of an independent state over such waters, so derived and so evidenced, are, first, a right of jurisdiction limited to the protection of its coasts from the effects of hostilities between other states which may be at war, the prevention of frauds upon its customs laws, and the regulation of fisheries; and second, a usufructuary right to fisheries. Modern writers who affirm any proprietary right over uninclosed marginal waters unite in basing it upon the fact that the adjacent "state has admittedly an exclusive right to the enjoyment of the fisheries" in such waters. But this seems to be more accurately classed as a usufructuary right, for, if a state has any proprietary right over such waters, it would seem to have the exclusive right to set law over them, and to close them to foreign vessels, as it may close its ports, whereas it is universally admitted that foreign ships have a jus transitus over such waters. 3. The internationally valid exercise of the rights above enumerated by an independent state is limited to a distance of one marine league from low-water mark on its coast.
—There are a few apparent exceptions to this rule. 1. Local pilot laws, which require that a pilot shall be taken on board all vessels entering certain territorial waters at a distance of more than three miles from the coast. Such laws are no real exception to the rule, being based upon the principle that a state has a perfect right to say to foreign ships voluntarily seeking its ports, that they shall not, without complying with its law, enter into its ports, and that if they do enter, they shall be subject to penalties unless they have previously complied with the requisitions ordained; whether these requisitions be, as in former times, certificates of origin, or clearances of any description from a foreign port. or clean bills of health, or the taking on board a pilot at any place in or out of its jurisdiction before entering its waters.3 Other local laws containing provisions affecting foreign ships, or foreigners within such ships, in respect to acts committed or omitted beyond the marine league belt, are referable to the same principle. 2. Customs laws and hovering acts, which authorize municipal seizures beyond the marine league. "It will not," says Dana,4 "be found that any consent of nations can be shown in favor of extending what may be strictly called territoriality, for any purpose whatever beyond the marine league or cannon shot. Doubtless states have made laws, for revenue purposes, touching acts done beyond territorial waters; but it will not be found, that, in later times, the right to make seizures beyond such waters has been insisted upon against the remonstrance of foreign states, or that a clear and unequivocal judicial precedent now stands sustaining such seizures, when the question of jurisdiction has been presented. The revenue laws of the United States, for instance, provide, that, if a vessel bound to a port in the United States, shall, except from necessity, unload cargo within four leagues of the coast, and before coming to the proper port for entry and unloading, and receiving permission to do so, the cargo is forfeit, and the master incurs a penalty (Act March 2, 1797, sec. 27); but the statute does not authorize the seizure of a foreign vessel when beyond the territorial jurisdiction. The statute may well be construed to mean only that a foreign vessel coming to an American port, and there seized for a violation of revenue regulations committed out of the jurisdiction of the United states, may be confiscated; but that, to complete the forfeiture, it is essential that ths vessel shall be bound to, and shall come within, the territory of the United States, after the prohibited act. The act done beyond the jurisdiction is assumed to be part of an attempt to violate the revenue laws within the jurisdiction. If foreign vessels have been boarded and seized on the high sea, and have been adjudged guilty, and their governments have not objected, it is probably either because they were not appealed to, or have acquiesced, in the particular instance, from motives of comity." Phillimore and Twiss both substantially agree with Dana, and hold that judgments affirming the legality of municipal seizures beyond one marine league could not have been sustained if the foreign state whose subject's property had been seized had thought proper to interfere, unless, perhaps, when that state had put in force or at least enacted, for its own benefit, a similar municipal law. 3. The waters in the centre of certain straits, gulfs and bays, which central waters lie outside the limit of a marine league from any of the adjacent coasts, are claimed to be territorial waters, and certain gulfs are in actual practice so treated. France appears to claim inlets whose entrance is not more than ten miles wide. England long claimed the "Queen's Chambers," these being waters within headlands as distant as Orfordness from the Foreland. The bay of Conception, in Newfoundland, which penetrates forty miles into the land, and is fifteen miles in mean breadth, was recently decided to be territorial water by the privy council. The United States claimed Delaware bay in 1793. "Of practice." says Hall,5 "there is a curious deficiency, and there is nothing to show how many of the claims to gulfs and bays which still find their place in the books, are more than nominally alive. It is scarcely possible to say anything more definite than that, while on the one hand it may be doubted whether any state would now seriously assert a right of property over broad straits or gulfs of considerable size and wide entrance, there is, on the other hand, nothing in the conditions of valid maritime occupation, to prevent the establishment of a claim either to basins of considerable area, if approached by narrow entrances, such as of the Zuyder Zee, or to large gulfs which, in proportion to the width of their month, run deeply into the land even when so large as the bay of Fundy, or, still more, to small bays, such as that of Cancale."
—The United States, being an independent state, has the international rights and is under the international obligations above described, in respect to the open sea which washes its coast; but, being a federal Union, jurisdiction and ownership over these waters, as between its constituent members, are regulated, not by international law, but by the terms of that Union. Thus it has been decided6 that the article of the constitution which describes the judicial power, and extends it to cases of admiralty and maritime jurisdiction, does not make a cession of territory or of general jurisdiction, so as to vest in the United States the shores of the sea, below low-water mark, and that whatever soil below low-water mark, within the ebb and flow of the tide, is the subject of exclusive property and ownership, belongs to the state within whose territory it lies, subject to any lawful grants to that soil by the state or sovereign power which governed its territory before the declaration of independence. Massachusetts, for instance, expressly asserts,7 that, "The territorial limits of this commonwealth extend one marine league from its seashore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width, between its headlands, a straight line from one headland to the other is equivalent to the shore line. The boundaries of counties bordering on the sea shall extend to the line of the state, as above defined." So the counties and towns in the state of New York which are bounded generally on Long Island sound, comprehend8 within their limits, for the purpose of ordinary civil and criminal jurisdiction, the waters between their respective shores and the exterior water line of the state. Subject, then, to the paramount right of navigation, the regulation of which in relation to foreign and inter-state commerce has been granted to the United States, each state owns9 the beds of all tide waters within its jurisdiction, unless they have been granted away, and may appropriate them, to be used by its citizens as a common for taking and cultivating fish, if navigation is not thereby obstructed. In like manner, the state owns the tide waters themselves and the fish in them, so far as they are capable of ownership while running. The right which the citizens of the state thus acquire is a property right, and not a mere privilege or immunity of citizenship, and a law of a state, as Virginia, prohibiting citizens of other states from planting oysters in the soil covered by her tide waters, is neither a regulation of commerce nor a violation of any privilege or immunity of inter-state citizenship.
—See Phillimore's Commentaries upon International Law, vol. i., chaps. 4-8, Philadelphia, 1854; Kent's Commentaries, 12th ed., vol. i., pp. 26-36; Twiss' The Law of Nations (Time of Peace), London ed., 1861, chap. 10; Woolsey's International Law, 5th ed., secs. 56-63; Holland's Jurisprudence, pp. 297, 298; 1Twiss' Arts. in Law Magazine, 1877; 2The Queen vs. Keyn, 2 L. R., Ex. Div., pp. 63-240; 3Lush., Adm., 295; 4Wheaton's International Law, chap. iv., secs. 177-206; 5Hall's International Law, pp. 104-130, Oxford, 1880; 6United States vs. Bevans, 3 Wheaton, 336; 7Pub. Stats. of Mass., title 1, chap. 1, sec. 1, and title 6, chap. 22, sec. 1; 8Mahler vs. Transportation Co., 35 N. Y. 352; 9McCready vs. Virginia, 94 U. S., 391; Territorial Waters Jurisdiction Act, 1878, 41 and 42 Vict., cap. 73; Foreign Relations of U. S., 1878, pp. 245-251.
JAMES FAIRBANKS COLBY.
Notes for this chapter
Different writers use the terms jurisdictional waters, water territory, maritime territory.
End of Notes
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