Papers Relating to the Foreign Relations of the United States, 1922, Volume I

811.114/900

The Secretary of State to Senator Thomas Sterling

Washington, August 16, 1922.

Dear Senator Sterling: I beg to acknowledge the receipt of your letter of July 28, 1922, in which you call attention to a bill (H. R. 7456), to be proposed as an amendment to the Tariff Act, relating to the extension of statutory provisions with regard to intoxicating liquors to a distance of six marine leagues from the coast, and in which you make certain observations with regard to the right of the Government to extend its jurisdiction in this manner.

In view of your request in our recent interview for an expression of my views concerning the proposed legislation, I deem it proper to offer certain suggestions respecting it because of the importance of this subject and your interest in it.

I appreciate of course the serious situation with which the authorities of the Government are confronted as a result of the methods employed to bring liquor into the United States in violation of law. The matter has received very careful consideration by the Department. I am constrained to say, however, that I consider that any attempt on the part of this Government to extend its domestic legislation to the high seas, as that term is understood in international law, in the manner contemplated by the bill under consideration would be in contravention of an established rule of international law and practice.

Although a nation may give effect to its laws with regard to its own vessels wherever they may be navigated, in my opinion the long observed rule with regard to the three mile limit of territorial waters stands in the way of the application of domestic legislation over vessels of other nations beyond that limit. Irrespective of what the origin of that rule may be, I consider the rule so well established that the United States cannot properly depart from it, until a general agreement respecting its alteration shall have been reached among the nations of the world in the manner indicated in the extract which you quote from the work on international law by the noted publicist Dr. Oppenheim. Of course, an exception might be made by agreement with a particular nation as to its vessels. I beg to point out to you in particular that this Government has consistently adhered to the three mile rule. Without entering into any detailed discussion of statements of authorities that might seem to some extent at variance with this general rule, I may invite attention to diplomatic discussions, decisions of international arbitral tribunals, and statements of writers on international law, from which I think it clearly appears that the rule with respect to the three mile limit is generally observed by nations as a rule of international law, and that this Government could not legally nor in a manner consistent with its attitude in the past disregard that rule.

In 1856 a long drawn out controversy began with Spain concerning the right of that Power to extend jurisdiction beyond the three mile limit in waters surrounding the Island of Cuba. The United States promptly took the position that it could not concede such an extension of Spanish sovereignty. In a note to Mr. Tassara, Spanish Minister at Washington, dated December 16, 1862, Secretary of State Seward informed the Minister that “the United States are not prepared to admit that Spain, without a formal concurrence of other nations, can exercise exclusive sovereignty on the open sea beyond a line of three miles from the coast, so as to deprive them of the rights common to all nations upon the open sea.” (Moore’s Digest, I. pp. 707–708). In a further note respecting the same subject, addressed to the Spanish Minister under date of August 10, 1863, Secretary Seward restated his position in the following language:

“… it cannot be admitted nor indeed is Mr. Tassara understood to claim that the mere assertion of a sovereign by an act of legislation, however solemn, can have the effect to establish and fix its external maritime jurisdiction. His right to a jurisdiction of three miles is derived not from his own decree but from the law of nations …

In view of the considerations and facts which have been thus presented, the undersigned is obliged to state that the Government of the United States is not prepared to admit that the jurisdiction of Spain in the waters which surround the Island of Cuba lawfully and rightfully extends beyond the customary limit of three miles.” (Moore’s Digest, I. pp. 710–712).

Under date of August 11, 1880, Secretary Evarts instructed Mr. Fairchild, American Minister to Spain, as follows:

“This Government never has recognized and never will recognize any pretense or exercise of sovereignty on the part of Spain beyond the belt of a league from the Cuban coast over the commerce of this country in time of peace. This rule of the law of nations we consider too firmly established to be drawn into debate, and any dominion over the sea outside of this limit will be resisted with the same firmness as if such dominion were asserted in midocean.” (Foreign Relations, 1880, p. 926).

On January 21, 1911, Secretary of State Knox in reply to a despatch from the American Ambassador at St. Petersburg,¹ informing the Department of the promulgation of a law purporting to extend the area of customs supervision by the Russian authorities from three to twelve miles, instructed the Ambassador to inform the Russian Minister for Foreign Affairs that “with reference to the general operation of the law over the marginal seas beyond the generally recognized three mile limit and particularly as affecting American commerce, the United States is constrained to reserve all rights of whatever nature”.

On November 28, 1914, the then Acting Secretary of State in response to a note from the Italian Ambassador at Washington,² informing the Department that by a royal decree the limit of territorial waters had been fixed at six nautical miles for the purpose of enforcing rights in relation to neutrality, said:

“An examination into the question involved leads to the conclusion that the territorial jurisdiction of a nation over the waters of the sea which wash its shore is now generally recognized by the principal nations to extend to the distance of one marine league or three nautical miles, that the Government of the United States appears to have uniformly supported this rule, and that the right of a nation to extend, by domestic ordinance, its jurisdiction beyond this limit has not been acquiesced in by the Government of the United States.”

Numerous declarations similar to those above quoted might be cited. However, the foregoing quotations doubtless suffice to show the extent to which this Government has committed itself to the rule of the three mile limit, and that it could not consistently assert a right to make seizures of foreign vessels beyond the three mile limit for the purpose of enforcing laws respecting the importation of liquor.

International arbitral tribunals have repeatedly condemned the interference by public vessels of a nation with private vessels of another nation beyond the three mile limit, and damages have been awarded in cases of such interference.

The so-called Fur Seal Arbitration of 1893 involved this subject. This arbitration grew out of a long standing controversy between Great Britain and the United States concerning sealing in the vicinity of the Pribilof Islands in the Bering Sea. Subsequent to the cession of Alaska by Russia to the United States, this Government enacted legislation with a view to the protection of the fur seal. American revenue cutters having seized British vessels engaged in sealing operations on the high seas and a controversy with the British Government having arisen with respect to such seizure, the matter was submitted to a special arbitral tribunal which met at Paris in 1893. The United States contended that it had the right to seize British vessels engaged in sealing beyond the three mile limit, first, because the United States had a property right in the seals and, secondly, because the United States had for itself and its people an interest in an industry derived from the proper use of the seal herd in the vicinity of American territories which entitled it to take protective measures against wanton destruction by individuals. The British Government denied both contentions and was sustained by the arbitral tribunal, which held that the United States had not the rights for which it contended with respect to fur seals frequenting islands belonging to the United States in the Bering Sea, when such seals were found outside of the ordinary three mile limit. (Fur Seal Arbitration, Vol. I, p. 78). Subsequently an arbitral commission established under an agreement concluded in 1896³ awarded compensation to Great Britain in behalf of the owners, masters, officers and crew of the ship Sayward, which had been seized by American authorities.

In a decision rendered under date of December 2, 1921, by the arbitral tribunal established under the special arbitration agreement concluded August 18, 1910, between the United States and Great Britain,⁴ damages were awarded in favor of the British Government because of the action of an officer of the United States Revenue Cutter Service in boarding in 1909 British schooners engaged in hunting sea otters in the North Pacific Ocean. The tribunal in its opinion said:

“It is a fundamental principle of international maritime law that, except by special convention or in time of war, interference by a cruiser with a foreign vessel pursuing a lawful avocation on the high seas is unwarranted and illegal, and constitutes a violation of the sovereignty of the country whose flag the vessel flies.

It is not contested that at the date and place of interference by the United States naval authorities there was no agreement authorizing those authorities to interfere as they did with the British schooners, and, therefore, a legal liability on the United States Government was created by the acts of its officers now complained of”.

Support for the view that domestic legislation may be extended beyond the three mile limit in the manner contemplated by the bill in question does not appear to be found in the works of the leading modern writers on international law. It is worth while to quote at length from the interesting comments of Dana in his edition of Wheaton’s International Law. He says with reference to the question under 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 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 2d March, 1797 [1799], Sec. 27);⁵ 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.’ Church v. Hubbart (Cranch, ii. 187) was an action on a policy of insurance, in which there was an exception of risks of illicit trade with the Portuguese. The voyage was for such an illicit trade, and the vessel, in pursuance of that purpose, came to anchor within about four leagues of the Portuguese coast; and the master went on shore on business, where he was arrested, and the vessel was afterwards seized at her anchorage and condemned. The owner sought to recover for the condemnation. The court held, that it was not necessary for the defendants to prove an illicit trade begun, but only that the risks excluded were incurred by the prosecution of such a voyage. It is true, that Chief Justice Marshall admitted the right of a nation to secure itself against intended violations of its laws, by seizures made within reasonable limits, as to which, he said, nations must exercise comity and concession, and the exact extent of which, was not settled; and, in the case before the court, the four leagues were not treated as rendering the seizure illegal. This remark must now be treated as an unwarranted admission. The result of the decision is, that the court did not undertake to pronounce judicially, in a suit on a private contract, that a seizure of an American vessel, made at four leagues, by a foreign power, was void and a mere trespass. In the subsequent case of Rose v. Himely (Cranch, iv. 241), where a vessel was seized ten leagues from the French coast, and taken to a Spanish port, and condemned in a French tribunal under municipal and not belligerent law, the court held that any seizures from [for] municipal purposes beyond the territory of the sovereign are invalid; assuming, perhaps, that ten leagues must be beyond the territorial limits, for all purposes. In Hudson v. Guestier (Cranch, iv. 293), where it was agreed that the seizure was municipal, and was made within a league of the French coast, the majority of the court held, that the jurisdiction to make a decree of forfeiture was not lost by the fact that the vessel was never taken into a French port, if possession of her was retained, though in a foreign port. The judgment being set aside and a new trial ordered, the case came up again, and is reported in Cranch, vi. 281. At the new trial, the place of seizure was disputed; and the judge instructed the jury, that a municipal seizure, made within six leagues of the French coast, was valid, and gave a good title to the defendant. The jury found a general verdict for the defendant, and exceptions were taken to the instructions, The Supreme Court sustained the verdict,—not however, upon the ground that a municipal seizure made at six leagues from the coast was valid, but on the ground that the French decree of condemnation must be considered as settling the facts involved; and, if a seizure within a less distance from shore was necessary to jurisdiction, the decree may have determined the fact accordingly; and the verdict in the Circuit Court did not disclose the opinion of the jury on that point. The judges differed in stating the principle of this case and of Rose v. Himely; and the report leaves the difference somewhat obscure.

“This subject was discussed incidentally in the case of the Cagliari,⁶ which was a seizure on the high seas, not for violation of revenue laws, but on a claim somewhat mixed of piracy and war. In the opinion given by Dr. Twiss to the Sardinian Government in that case, the learned writer refers to what has sometimes been treated as an exceptional right of search and seizure, for revenue purposes, beyond the marine league; and says that no such exception can be sustained as a right. He adds: ‘In ordinary cases, indeed, where a merchant-ship has been seized on the high seas, the sovereign whose flag has been violated waives his privilege; considering the offending ship to have acted with mala fides towards the other State with which he is in amity, and to have consequently forfeited any just claim to his protection.’ He considers the revenue regulations of many States, authorizing visit and seizure beyond their waters, to be enforceable at the peril of such States, and to rest on the express or tacit permission of the States whose vessels may be seized.

“It may be said that the principle is settled, that municipal seizures can not be made, for any purpose, beyond territorial waters. It is also settled, that the limit of these waters is, in the absence of treaty, the marine league or the cannon-shot. It cannot now be successfully maintained, either that municipal visits and search may be made beyond the territorial waters for special purposes, or that there are different bounds of that territory for different objects. But, as the line of territorial waters, if not fixed, is dependent on the unsettled range of artillery fire, and, if fixed, must be by an arbitrary measure, the courts, in the earlier cases, were not strict as to standards of distance, where no foreign powers intervened in the causes. In later times, it is safe to infer that judicial as well as political tribunals will insist on one line of marine territorial jurisdiction, for the exercise of force on foreign vessels, in time of peace, for all purposes alike.” (Dana’s Wheaton, 8th Edition, pp. 258–9).

It has been suggested that the seizure of vessels on the high seas for the purpose of preventing smuggling might be justified under the so-called right of self-preservation. This right on the part of a nation, says Mr. Hershey, in his work on international law includes “the right to preserve the integrity and inviolability of its territory with the corresponding duty of respecting that of other states”. (p. 144). In order to maintain that right a nation may, say the authorities, in extreme cases commit what would ordinarily be an infraction, of the law of nations and violate the territorial sovereignty or the international right of another state. (Westlake I, 299; Taylor, 405; Hall 5th ed., 269; Moore II, 402). Operations of this kind are described by Halleck as “imperfect war”. (I, p. 113). From an examination of the instances in which this principle of self-preservation has been invoked, it would appear that they are limited to efforts to thwart acts of a military character. A serious question is involved in any attempt to extend the application of this so-called right of self-preservation, which has given rise to much controversy in the past, to interference with foreign vessels on the high seas with a view to the prevention of smuggling.

You refer to the statutory provisions enacted in 1799⁷ which have been called “hovering laws”. Similar laws were enacted by Great Britain in 1736 [1739],⁸ but it appears they have long since been repealed. I shall not discuss the application of the provisions of these laws further than to say that municipal legislation undoubtedly supplies the rule for municipal officers, but the rule of international law will remain the criterion of international obligation by reference to which our duties toward other nations are determined except as they may be modified by special agreements.

I am [etc.]

Charles E. Hughes

1. Despatch no. 363, Sept 30, 1910, Foreign Relations, 1912, p. 1287; Secretary Knox’s reply, ibid., p. 1298.
2. Note no. 1837, Nov. 6, 1914, from the Italian Ambassador, and Department’s reply, ibid., 1914, supp., p. 665.
3. Convention of Feb. 8, 1896, Malloy, Treaties, 1776–1909, vol. i, p. 766.
4. The agreement is printed in Foreign Relations, 1911, p. 266; it was confirmed by exchange of notes dated Apr. 26, 1912 (ibid., 1912, p. 494).
5. Ch. 22, sec. 27, 1 Stat. 648.
6. See British and Foreign State Papers, 1857–1858, vol. xlviii, pp. 326–557.
7. Act of Mar. 2, 1799, ch. 22, sec. 27, 1 Stat. 648.
8. Great Britain, Statutes, 12th George II, ch. 22.