811.114/900
Senator Thomas Sterling to the Secretary of State
My Dear Mr. Secretary: I have been very much interested in the newspaper account of the conversations with the representative of Great Britain relative to territorial jurisdiction over maritime waters; this in view of the proposed extension of our national jurisdiction to a distance of from twelve to eighteen miles from the shore for the purpose of preventing the violation of our National Prohibition Act.
I think you realize the very great difficulty encountered in enforcing this Act if foreign vessels can come to the three-mile limit and station themselves there for the purpose of dispensing intoxicants to our citizens, to be thereafter used or transported within undisputed territory of the United States in violation of law. I have no doubt but that you and the legal advisers of the State Department have been giving close attention to the consideration of our right to [Page 565] extend jurisdiction as above stated and have already found and examined all the authorities available. But both because the question is a tremendously interesting one viewed from the legal and international law standpoint and because I am interested in it from the standpoint of one who has sponsored prohibition legislation in the Senate, I have been led to make some review of the authorities myself. Will you kindly indulge me these few observations with some quotations from the authorities.
I note, first, this statement from Vattel in his Law of Nations, b. 1, Section 237: “Every nation has a right to appropriate to her own use a portion of the sea around her shores; and to legislate respecting vessels coming within that line. A vessel coming within that line contrary to the municipal laws of the country may be lawfully seized.” This, it will be seen, has no reference to what may be termed the commonly accepted rule or doctrine that the distance of three miles, or a marine league, is the limit of the State’s jurisdiction.
There has always been more or less uncertainty as to what should constitute the maritime belt over which any State could exercise its jurisdiction in punishing for a violation of its own laws. Evidently the old idea of the three-mile limit, or distance of a cannon shot, was founded on the principle that a State was entitled to exercise jurisdiction within the limits of its physical power, and that was supposed to be the distance to which a cannon shot would go. Of course, we know that the cannon shot in more modern times will ordinarily carry from five to seven times that distance, perhaps more; and this has been true for many years last past. I quote from Bouvier’s Law Dictionary, volume 3, page 3260, as follows:
“It is difficult to draw any precise conclusion as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbors, etc., over which it has unquestioned jurisdiction. All that can reasonably be asserted is that it extends as far as may be requisite for the state’s safety and for some lawful end. Until recent years it was generally recognized as extending as far as a cannon shot would reach—i. e. a marine league; 1 Kent 29; this limit was fixed when that was the range of a cannon; Hogg v. Beerman, 41 Ohio St. 81, 52 Am. Rep. 71; it is said that it can be extended as the range of cannon increases; Hall Int. L. 157. It may be extended for protection in time of war, or for revenue purposes; Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159; [The Hungaria, 41 Fed. 109;] Congress has recognized the customary limit by legislation as to captures made within a marine league of the shore; 1 Kent 29. It is three miles from low-water mark; Behr. Sea Case.”
The italics are mine.
[Page 566]But can there be any question as to the lawfulness of the end which is sought to be reached by extending our national jurisdiction for the purpose of preventing the unlawful sale of intoxicating liquors? The end is the enforcement of the supreme law—the Eighteenth Amendment to the Constitution.
If the reason for fixing the distance of a cannon shot as the limit in the old days was because that was apparently the limit of the State’s physical power, why should that limit now be regarded as the rule? The old maxim, the reason for the rule having failed the rule itself does not prevail, would seem to apply.
To this same purport is the discussion in Oppenheim, Page 241, volume 1, he says:
“With regard to the breadth of the maritime belt various opinions have in former times been held, and very exorbitant claims have been advanced by different States. And although Bynkershoek’s rule that terrae potestas finitur ubi finitur armorum vis is now generally recognised by theory and practice, and consequently a belt of such breadth is considered under the sway of the riparian State as is within effective range of the shore batteries, there is still no unanimity on account of the fact that such range is day by day increasing. Since at the end of the eighteenth century the range of artillery was about three miles, or one marine league, that distance became generally recognised as the breadth of the maritime belt. But no sooner was a common doctrine originated than the range of projectiles increased with the manufacture of heavier guns. And although many States in Municipal Laws and International Treaties still adhere to a breadth of one marine league, the time will come when by a common agreement of the States such breadth will be very much extended.”
In a note he refers to the Institute of International Law as voting in favor of six miles, or two marine leagues, as the breadth of the belt.
Terrae potestas finitur ubi finitur armorum vis, or liberally translated, “the power over territory ends where the power of arms ends” is now “generally recognized by theory and practice,” etc., etc.
It would seem to me that in view of the exigencies of the situation and that the extension of our territorial jurisdiction is necessary in order to protect our citizens and enforce the provisions of our municipal law and national Constitution, Great Britain, or any other nation, ought to see the reasonableness of our claim or right to extend our jurisdiction beyond the three-mile limit.
Of course we have some precedent for this extension in Sections 2811, 2812, 2813, 2814, 2867 and 2868 of the Revised Statutes under which certain control in customs matters was extended to four marine leagues from the shore in order to prevent frauds upon our customs revenue.
[Page 567]In 50 Federal, page 108, the case of United States v. The James G. Swan (a seals fishery case) the court say: “National dominion and sovereignty may be extended over the sea as well as over the land. Should circumstances render it necessary, a nation having the power to do so may assert its dominion over the sea beyond the limits heretofore admitted by the powers of the earth to be lawful.” The opinion then quotes from Hall’s International Law, 127, as follows: “It is probably safe to say 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 on the subject should be arrived at by common consent.” I grant that it would be more satisfactory if such an arrangement could be made by common consent of Great Britain or other nations, but in view of the manifest and vital importance of the subject it would seem that if no such consent can be obtained that then our Government would be quite warranted in exercising the right which these leading authorities on international law plainly indicate it possesses.
I might cite other authorities bearing upon the question which I believe maintain my view that the United States can by law extend its jurisdiction to a reasonable distance beyond the three-mile limit without the consent of any other nation, but it is probable that the attention of your office has already been called to them as well perhaps as to those I have taken the liberty to refer to herein.
The amendment to the tariff bill which I introduced and which will be brought forward when it comes to offering individual amendments extends the limit to a distance of eighteen miles, but the distance provided for is tentative rather than a fixed idea of mine, although I think the distance should be at least twelve miles. I am credibly informed that Norway has recently extended her jurisdiction to a distance of twelve miles, and this for the very purpose of preventing smuggling into Norway of intoxicating liquors.
Yours very respectfully,