Transportation, in the constitutional provision, says the Court, "comprehends any real carrying about or from one place to another."

Importation, "consists in bringing an article into the country from the outside. If there be an actual bringing in, it is importation, regardless of the mode in which it is effected. Entry through a customs house is not of the essence of the Act."

Territory, in the phrase "the United States and all territory subject to the jurisdiction thereof," and this is the word that involved a definition of the extent and character of jurisdiction over the Territorial Sea-territory "means the regional areas of land and adjacent waters over which the United States claims and exercises dominion and control as a sovereign power." No distinction is made, therefore, between land and adjacent waters, and the Court declares with a positiveness that borders on the dogmatic that: "It now is settled in the United States and recognized elsewhere, that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays and other enclosed arms of the sea along its coast, and a marginal belt of the sea extending from the coastline outward a marine league or three geographic miles.”

May I direct your attention, at this point, to the fact that this definition is a judicial and not a legislative one. It is not to be found in the Constitutional Amendment nor in the Enforcement Act. It is not taken from any general or statutory construction statute. In fact it may be doubtful that Congress has any power to define the territorial limits of the United States. I am not considering at

If the law were "settled" prior to the announcement by the Supreme Court in the case cited, it was by Justice Story on circuit in The Ann. 1 Fed. Cas. 926; (Case No. 397); 1 Gall, 62; Circuit Court District of Mass., May Term, 1812, in which he said: "All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot or marine league over the waters adjacent to its shores. Indeed such

waters are considered as a part of the territory of the sovereign." Chief Justice Marshall's language in Church v. Hubbart, 2 Cranch, 187, as follows: "The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory and is a hostile act which it is its duty to repel," upon which both Justice Story in The Ann, and Justice Van Deventer in the Sea Stores cases rely, seems hardly to go so far as to extend the territorial Sovereignty of the littoral state for all purposes throughout the marginal sea. Neither of these cases involved the applicability of the criminal law of the littoral state in the marginal sea beyond the question of prohibitions against illicit commerce. Fifty-two years after the decision of The Ann, Mr. Justice Field on Circuit in California, regarded the question as so far unsettled as to hold as follows of the jurisdiction of Mexico: "The jurisdiction of that country over all offences committed within a marine league of its shore, not on a vessel of another nation, was complete and exclusive." This was in United States v. Smiley, 27 Fed. Cas. 1132 (Case No. 16317); 6 Sawy. 640, a case also cited in Sea Stores cases. The significant qualification "not on a vessel of another nation," seems to have been ignored in the latter opinion.

California only claims maritime jurisdiction to the extent of three English miles, i.e., approximately half a mile less than a marine league. It is possible that one of the seaboard states may claim jurisdiction to cannon range as indeed an old case would seem to indicate that the State of New York might do (Mahler v. Transportation Co., 35 N. Y. 352, where Long Island

this point the extensile power that a nation may exercise in its own defence, but only the extent of territory subject to the exclusive and absolute jurisdiction of the nation susceptible of no limitation not imposed by the nation itself. The definition is, therefore, the Supreme Court's understanding of what is comprised within the territory of the United States.

The Supreme Court's opinion transfers the boundary of the marginal sea out of the realm of debatable things into the realm of the absolute, and likewise determines the nature and extent of the authority of the littoral sovereignty. It applies an unvarying standard of measurement to the area and certain terms of precise meaning to the jurisdiction to be exercised within that area. The marginal belt of the sea, extending from the coast line outward a marine league or three geographic miles, is as much a part of the territory of the United States, under this decision, as the State of Kansas. In the interest of accuracy, there is one qualification to be applied in connection. with this statement. The marginal sea is subject to a servitude, resulting from the common ownership by all nations of the seas beyond the three-mile limit, of the right of innocent passage through territorial waters." The qualification is expressed in the opinion of the United States Supreme Court in the case of Manchester v. Massachusetts (139 U. S. 240, at page 257), as follows:

"The open sea within this limit is, of course, subject to the common right of navigation."

However, it is doubtful, to say the least, whether the common right of navigation or the doctrine of innocent passage as international jurists call it, permits the carriage within our territorial waters of intoxicating liquors. The Attorney-General's opinion of October

Sound was held to be territorial water because the entrance could be commanded by cannon). The question may well be asked whether Congress can add a federal strip outside the limits to which California has sought to withdraw and refuse to another State what it claims under international law. The answer to such a question is beyond the scope of the present article and it may be hoped will never become a practical one, but it introduces some further confusion into the subject by raising a distinction between territorial sovereignty and the extent of specific rights and duties such as customs inspection and neutrality which are national in nature.

This right, which is recognized by practically all writers on the subject, is thus phrased in Article 5 of the Rules adopted by the Institute of International Law at Paris in 1894:

"All ships without distinction have the right of innocent passage through the territorial sea saving to belligerents the right of regulating such passage and, for the purpose of defense, of forbidding it to any ship, and saving to neutrals the right of regulating the passage of ships of war of all nationalities through the said sea."

Trans. of H. B. Crocker, The Extent of the Marginal Sea, Government Printing Office, 1919.

Bluntschli: Le Droit International Codifié 1895, says: "The jurisdiction of the adjacent sea only extends over the littoral sea within the limits considered necessary by the police and military authorities. The ship in all other respects is as free as if it were in the open sea; that is, it is regarded as a floating part of the territory of the State whose flag it flies." (Sect. 322,

6th, 1922, declared that it is unlawful for any ship, whether domestic or foreign, to bring into territorial waters of the United States, or to carry while within such waters, intoxicating liquors intended for beverage purposes. This would seem to be as plain a declaration as language permits against the entry into our territorial waters of ships with intoxicating liquors aboard.

The doctrine of territorial ownership of the marginal belt of sea to the distance of a marine league from low water mark on shore was in the year 1909 declared by a federal judge to be applicable in determining the extent of the territory of one of the States of the United States. New Jersey adopted a statute extending its border to a space of one marine league from low water mark, and the validity of this enactment was upheld by the United States Circuit Court for the Southern District of New York. Referring to the opinion of the United States Supreme Court in Manchester v. Massachusetts, the circuit Judge held that the Court had there "declared that it must be regarded as established that as between nations the minimum limit of the territorial jurisdiction of a nation over tide waters is a marine. league from its coast. Both from the language quoted and from the nature of the decision in the Manchester case," he continues: "it seems to me to follow that New Jersey may, in the exercise of its sovereignty, extend its own borders for the space of one marine league from low water mark and make the region so annexed as much a portion of the State as any other part of its territory." And in the same case, the circuit Judge declared that the existence of territorial jurisdiction must imply territorial ownership."

The doctrine announced by the Supreme Court of the United States and subordinate federal courts will be scrutinized elsewhere in the light of international law principles, and in speaking to an association of lawyers of another country, the decision should undoubtedly be discussed in its relation to the opinions held by international jurists regarding the Territorial Sea.

The London Morning Post, shortly after the rendition of the opinion by the Supreme Court, contained a contribution from a British jurist, who had been associated with Sir Charles Russell in the Behring Sea Arbitration in 1896. The article directed attention particularly to the opinion of Sir Alexander Cockburn, Lord Chief Justice, in

Trans. H. G. Crocker, p. 10). A distinction may of course be made between carriage of liquor for the purpose of smuggling into the country and carriage from one foreign port to another, which might reasonably be regarded as innocent. Carriage of liquor in either case is apparently forbidden by the Volstead Act as interpreted. It is difficult to see how the latter case might arise without the complicating element of the ships entering a United States port. U. S. v. Newark Meadows Imp. Co., 173 Fed Rep. 426, at p. 429.

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the case of The Franconia reported as Queen v. Keyn, 2 Exch. Div. 63, as expressing the correct legal conception of territorial waters as the writer believed it to be understood by the greatest English lawyers. The views therein expressed do not differ substantially from those maintained by de Lapradelle,10 who is probably the foremost champion of the opinion maintained by those writers on international law who emphatically deny the territorial character of the maritime belt and concede to littoral states in the interest of safety of the coasts only certain powers of control, jurisdiction, policing and the like, but not sovereignty.

The views of Sir Alexander Cockburn, as expressed in his opinion. in The Franconia case, were adopted and advanced by Mr. Choate in his argument in the Manchester case. He contended there that the marine league distance had prominence merely because of its adoption as a boundary in certain agreements and treaties and from its frequent mention in text-books, but had never been established in law as a fixed boundary. It is apparent from the language of the Supreme Court in the Manchester case and from the character of its reference to the opinion of the Court of Crown Cases Reserved in The Franconia case, that the views of Sir Alexander Cockburn were not then adopted by our Supreme Court, and the insistence in the Sea Stores cases of complete sovereignty in the Territorial Sea brings into sharp relief and contrast the conflict between the views of that great jurist and those of our Supreme Court.

In view of this diversity of opinion, is the decision of the United States Supreme Court in the Sea Stores cases out of harmony with the views of recognized authorities on international law?

There are really two questions involved:

First: What is the area within which the littoral state exercises jurisdiction? and,

Second: What is the nature of that jurisdiction? Is it territorial ownership, complete sovereignty or merely a series of servitudes of definite character?

First: As to the area of the Territorial Sea.-The Institutes declared that the sea is "communis omnium naturali jure." Examples,

1 De Lapradelle is here taken as the type of those who deny the full extent of territorial sovereignty merely because he has gone further in that direction than any others. In a sense, however, he is not typical. His novel and ingenious theory of coastal servitudes in favor of the littoral State in the sea which is the property of all nations is against the general trend of authorities and of international usage. The majority of those writers of whom he is here regarded as representative, assert a much less definite "jurisdiction" in the littoral State. For the views of de Lapradelle, see Le Droit de L'Etat sur la Mer Territoriale, in Revue Générale de Droit International Public, Vol. 5, 1898; Crocker's Collection, p. 183; for criticism of his views, see Westlake International Law, Part I., Peace [Second Edition, Crocker's Collection, p. 469] and Du Vigneaux, Le Droit de l'Etat sur la Mer Territoriale, p. 24, seq.

however, of certain states having prescribed rules of navigation to other states may be found in ancient history. The city of Tyre claimed the adjoining seas; the Romans gave directions to the Carthaginians; the Athenians prohibited the Median ships of war from entering their seas and also dictated to the Lacedæmonians.11

It was not until the early middle ages, however, that extensive claims to sea jurisdiction were made. The origin of such claims is attributed to the necessity of protecting maritime and commercial nations from piracy, and the idea of protection is still frequently invoked by writers on public international law as the basis of sea sovereignty. In 1229 Venice began to demand dues from all vessels sailing in the north Adriatic. Bologna and Ancona resisted, but Venice, by force of arms, established her sovereignty. In 1299 procurators of merchants and marines of Genoa, Spain, Germany, Holland, Iceland, Denmark and Norway, presenting a memorial to certain commissioners sitting in Paris to redress injuries inflicted on merchants of various countries by a French Admiral in English waters, recognized in England "the exercise of sovereign dominion."

Soon after the assertion of jurisdiction over the sea, attempts were made, especially in the writings of the early Italian jurists, to assign legal limits to maritime jurisdiction. One whose authority in the middle ages was very great, declared the law to be that jurisdiction extended to a distance of one hundred miles from the coast or less than two days' journey from it. Within this space the ruler had power to apprehend and punish delinquents just as he had on land. Another Italian jurist, a pupil of the first, allotted a wide limit to the maritime rights of the Prince of the adjoining territory, but reduced the space from one hundred to sixty miles, a distance which was supposed to be equal to one day's journey from the coast.

In the bulls of Alexander VI. of May 3rd and 4th, 1493, after the discovery of the new world, the lands and seas were divided between the Spaniards and Portuguese. The pretensions of these nations, based upon the papal bulls, were denied by England; and Queen Elizabeth refused to admit any right in Spain to deprive her subjects from freely navigating the waters of the Indies. A similar attitude on the part of England was maintained against the pretensions of Denmark at the Conference at Bremen in 1602.

Seven years later, in 1609, Grotius published his famous Mare Liberum. It was a time when some nations were asserting a wide maritime dominion. In the basin of the Mediterranean the Adriatic was treated as a part of the dominion of Venice; the Ligurian Sea

"Halleck, International Law, Fourth Edition, Vol. 1, p. 134, foot-note (Crocker's Collection, p. 83).