l'Huys, and added: "Under such circumstances I do not suppose that they would have, on principles of international law, the least right to interfere with you if three miles off the coast; but if you lose nothing by fighting six or seven miles off the coast instead of three, you had best do so. You know better than I ... whether the pretense of the Alabama of a readiness to meet you is more than a pretense, and I do not wish you to sacrifice any advantage if you have it. I suggest only that you avoid all unnecessary trouble with France; but if the Alabama can be taken without violating any rules of international law, and may be lost if such a principle is yielded, you know what the Government would expect of you. You will, of course, yield no real advantage to which you are entitled, while you are careful to so act as to make, uselessly, no unnecessary complications with the Government." This letter was duly delivered to Captain Winslow, but the messenger, by whom it was sent, found, on his arrival at Cherbourg, that the prefect had already made known the wishes of the French Government as to the distance within which a fight should not occur. The fight took place on the morning of June 19, 1864. When the Alabama left the harbor she was accompanied by a French man-of-war, apparently for the purpose of seeing that the battle was not begun too near the shore. It began soon after the man-of-war left the Alabama. The Kearsarge was then lying probably from seven to nine miles off shore. The fight lasted an hour and a half, and the Alabama, when she began to fill, made for the coast, from which she was five miles distant when she sank. In acknowledging the receipt of Mr. Dayton's report of the transaction, Mr. Seward said: "I approve of your instructions to Captain Winslow. It. will be proper for you, nevertheless, while informing M. Drouyn de l'Huys that I do so in a spirit of courtesy towards France, to go further, and inform him that the United States do not admit a right of France to interfere with their ships of war at any distance exceeding three miles. Especially must we disallow a claim of France so to interfere in any conflict that we may find it necessary to wage in European waters with piratical vessels like the Alabama, built, armed, manned, and equipped, and received as a belligerent in opposition to our persistent remonstrances to commit depredations on our commerce." c

a Mr. Dayton, min. to France, to Capt. Winslow, of the Kearsarge, undated, Dip. Cor. 1864, III. 104-105.

Dip. Cor. 1864, III. 106–109, 111–112.

Mr. Seward, Sec. of State, to Mr. Dayton, min. to France, July 2, 1864, Dip. Cor. 1864, III. 120-121.

Wharton, in his Int. Law Dig. I. § 32, p. 114, referring to the position of the French Government, says:

"Nor does this reason apply exclusively to hostile operations. We can con

(8) REVENUE ACTS.

$151.

"The British 'hovering act,' passed in 1736 (9 Geo. II., cap. 35), assumes, for certain revenue purposes, a jurisdiction of four leagues from the coasts, by prohibiting foreign goods to be transshipped within that distance without payment of duties. A similar provision is contained in the revenue laws of the United States, and both these provisions have been declared by judicial authority in each country to be consistent with the law and usage of nations."

Wheaton, Int. Law (Dana's ed.), § 179.

The provision in the revenue laws of the United States, embodied in the act of March 2, 1797, § 27, reads, as incorporated into the Revised Statutes, as follows:

"SEC. 2760. The officers of the revenue cutters shall respectively be deemed officers of the customs, and shall be subject to the direction of such collectors of the revenue, or other officers thereof, as from time to time shall be designated for that purpose. They shall go on board all vessels which arrive within the United States or within four leagues of the coast thereof, if bound for the United States, and search and examine the same, and every part thereof, and shall

ceive, for instance, of a case in which armed vessels of nations, with whom we are at peace, might select a spot within cannon range of our coast for the praetice 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 remembered, 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 a 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."

So far as these observations relate to criminal acts, it may be remarked that it is universally admitted that jurisdiction of offences may be derived from the locality either of the act or of the actor. The distinction really sought to be made is that between preventive police and the claim of territorial jurisdiction, and, in case of an offence actually committed, between the right to punish the offender, if he comes within the jurisdiction or is brought there by extraditon, and the right to arrest him outside of it.

demand, receive, and certify the manifests required to be on board certain vessels, shall affix and put proper fastenings on the hatches and other communications with the hold of any vessel, and shall remain on board such vessels until they arrive at the port or place of their destination.”

"The statement in the text [of Wheaton, above quoted] requires further consideration. It has been seen that the consent of nations extends the territory of a state to a marine league or cannon-shot from the coast. Acts done within this distance are within the sovereign territory. The war right of visit and search extends over the whole sea, but it will not 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 4 leagues from 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 2d March, 1797, § 27); but the statute does not authorize a 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 the 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. Under the previous sections of that act it is made the duty of revenue officers to board all vessels for the purpose of examining their papers within four leagues of the coast. 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.

"The cases cited in the author's note do not necessarily and strictly sustain the position taken in the text. In the Louis (Dodson, ii, 245), the arrest was held unjustified, because made in time of peace for a violation of municipal law beyond territorial waters. The words of

Sir William Scott, on pages 245 and 246, with reference to the hovering acts, are only illustrative of the admitted rule that neighboring waters are territorial; and he does not say, even as an obiter dictum, that the territory for revenue purposes extends beyond that claimed for other purposes. On the contrary, he says that an inquiry for fiscal or defensive purposes, near the coast, but beyond the marine league, as under the hovering laws of Great Britain and the United States, has nothing in common with the right of visitation and search upon the unappropriated parts of the ocean;' and adds, ‘a recent Swedish claim of examination on the high seas, though confined to foreign ships bound to Swedish ports, and accompanied, in a manner not very consistent or intelligible, with a disclaimer of all right of visitation, was resisted by the British Government, and was finally withdrawn.'

Dana, note 108, Wheaton's Int. Law. § 179, p. 258.

Two policies of insurance were obtained on the cargo of the brig Aurora, from New York to one or two Portuguese ports in Brazil. In each policy there was an exception of the risk of seizure for illicit trade with the Portuguese. The vessel was cleared out for the Cape of Good Hope, but proceeded to Rio de Janeiro, where she disposed of part of her cargo. Sailing then for Para, she fell in with the American schooner Four Sisters, bound for the same port, and the two vessels agreed to keep company. In due time they came to anchor about four or five leagues from land, off the mouth of the river Para, and certain members of the crew of each vessel went off in the schooner's long boat to speak to a Portuguese boat seen inshore, with a view, as they alleged, to procure a pilot to take the vessels up the river, in order that they might obtain a supply of wood and water, and, if permitted, sell their cargo. After the long boat had put off, the master of the brig went on board the schooner, and the latter proceeded toward the shore, in the hope of finding a pilot, and while so doing compelled, by firing, a Portuguese schooner to come to ad her master to come on board, greatly to the alarm of the latter, who supposed that the vessels were French and enemies. Meanwhile, the persons who had gone ashore in the long boat were seized and imprisoned, and a day or two afterwards both the brig and the schooner were taken possession of by a body of armed men in boats, and carried into Para, where, with their cargoes, they were condemned on the ground that they were attempting to trade in violation of the laws of Portugal.

An action on the case on the two policies on the cargo of the brig was brought in the circuit court of the United States for the district. of Massachusetts and a verdict was found for the defendant, Mr.

Justice Cushing, who charged the jury, saying that, while it was contended that the brig was not within the Portuguese dominions and therefore not violating any of their laws, it appeared that she was hovering on the coast of Para and anchored upon that coast, and that the plaintiff, with others from the vessel, went on shore in the boat among the inhabitants."

66

Before the Supreme Court it was argued for the plaintiff that as the vessel was "seized five leagues from the land, at anchor on the high seas," she was not within the territorial jurisdiction of Portugal and not liable to seizure, and that though the supercargo went ashore he went for water, which was legal, and did not bring the vessel into port.

For the defendant it was argued that the vessels, though four or five leagues from Cape Baxos, were in the Bay of Para, within the jurisdiction of Portugal; that, besides, the rule of cannon shot did not apply to the right to cause the revenue laws to be respected, as was shown by the laws of the United States; that the act of the supercargo in going ashore really for the purpose of trading, and the forcing the Portuguese schooner to come to, would have given a right to seize the vessels, even if they had not been within the territorial jurisdiction.

Marshall, C. J., delivering the opinion of the court, said that the right of a nation to secure itself from injury might "certainly be exercised beyond the limits of its territory;" that a nation had a right to prohibit commerce with its colonies, and to use the necessary means to prevent the violation of the laws made to protect that right; that these means did not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations;" that in "different seas and on different coasts, a wider or more contracted range would be assented to; that in the channel, for example, where a great part of the commerce with the north of Europe passes through a very narrow sea, the seizure of vessels suspected of attempting an illicit trade must necessarily be restricted to very narrow limits, while on the coast of South America. seldom frequented by vessels but for purposes of illicit trade, the vigilance of the Government might " be extended somewhat further;" and that the fact that such vigilance was not always restricted to cannon shot was shown by the act of Congress giving revenue cutters the right to visit vessels four leagues from the coast. The seizure of the brig, therefore, was not an act of lawless violence.

Church . Hubbart (1804), 2 Cranch, 187, 234.

"It is true, that Chief Justice Marshall [in Church v. Hubbart] admitted the right of a nation to secure itself against intended viola