The Secretary of State to the Chargé in Great Britain (Wheeler)

No. 961

Sir: The Department refers to your despatch No. 2585, of July 7, 1923,28 submitting a report concerning the general situation in Great Britain from the point of view of politics, economics, et cetera, for the period June 25, to July 1, inclusive. On pages 2 and 3 of your despatch you refer to the discussion in British circles of the United States ruling regarding the carrying of liquor on British ships and state that the obligation of the Federal Executive to comply with a decision of the Supreme Court regarding an interpretation of existing law is not very generally understood and that it is generally felt that the Executive might have taken a less extreme attitude in this matter had it wished to do so. You add that it is felt that some way out of these difficulties should not be too hard to find particularly in view of the part of the court’s decision which states that “the local sovereignty may, out of consideration of public policy choose to forego the execution of its jurisdiction or exert the same in only a limited way.” Your attention is called to the fact that your despatch does not correctly quote the language used by the Supreme Court in its opinion. The language used by the court is as follows:

“Of course, the local sovereign may out of considerations of public policy choose to forego the exertion of its jurisdiction or to exert the same in only a limited way, but this is a matter resting solely in its discretion.”

Reference is made in this connection to the Department’s telegram No. 164 dated June 30, 1923,28 stating the attitude of this Government toward the enforcement of the recent Supreme Court ruling concerning liquor on foreign ships. It was pointed out that the British Government apparently was mistaken in its understanding of the Supreme Court decision, that the misconception of the British Government was apparently based on Lord Birkenhead’s29 misconception of the above quoted extract from the decision. Lord Birkenhead apparently interpreted the word “sovereign” to mean the Executive branch of the Government. Actually, the term “sovereign” means the people of the United States and any discretionary power lies solely within the Congress which represents the sovereign people. Therefore, the only amelioration possible in the enforcement of the prohibition law would be through act of Congress by amendment of the Volstead Act or more simply by the ratification of treaties such [Page 173] as that suggested to the British Government which would take precedence over the specific provisions of the Act.

When this mistaken understanding of the Supreme Court decision is removed, it should be clear that the Administration has no choice except to enforce the law irrespective of international practice or embarrassments with foreign powers. It is, therefore, clear that the Executive cannot “take advantage of this part of the decision as far as foreign shipping is concerned.”

It is observed that you further state that “public opinion seems to be generally unfavorable to any extension of the 12 mile limit in so far as the right of search and seizure is concerned.” It is assumed that a typographical error was made when you referred to “an extension of the 12 mile limit.” The opinion of the Supreme Court of the United States in the case of Cunard Steamship Company, Ltd., vs Mellon contains the following statement concerning the jurisdiction of the United States:

“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 coast line outward a marine league, or three geographic miles. Church v. Hubbart, 2 Cranch 187, 234; The Ann, 1 Fed. Cas., p. 926; United States v. Smiley, 27 Fed. Cas., p. 1132; Manchester v. Massachusetts, 139 U. S. 240, 257–258; Louisiana v. Mississippi, 202 U. S. 1, 52; 1 Kent’s Com., 12th ed., *29; 1 Moore International Law Digest,§ 145; 1 Hyde International Law,§§ 141, 142, 154; Wilson International Law, 8th ed. § 54; West-lake International Law, 2d ed., p. 187, et seq; Wheaton International Law, 5th Eng. ed. (Phillipson), p. 282; 1 Oppenheim International Law, 3rd ed., § 185–189, 252. This, we hold, is the territory which the Amendment designates as its field of operation; and the designation is not of a part of this territory but of ‘all’ of it.”

The Government considered it desirable to obtain a special treaty arrangement with the British Government authorizing it to visit and search British vessels to a limit of 12 miles when it was believed they were engaged in smuggling liquor into the United States. A precedent for a treaty of this character is found in the Treaty of December 27, 1774, concluded between France and Spain whereby French and Spanish Customs authorities were permitted to seize, up to a distance of two leagues from the coasts, French and Spanish ships carrying forbidden goods. Article 8 of the Treaty, the French text of which (Martens, Recueil de traités, 2d ed., Vol. 1, p. 451), is translated in Crocker’s The Extent of the Marginal Sea, Page 521, reads as follows:

Article 8. The customs employees and officials of the two crowns, whose duty it is to prevent the introduction of smuggled goods, shall [Page 174] have the authority to stop all kinds of small boats of each nation weighing less than 100 ton, which they find laden wholly or partially with any contraband goods whatsoever, or with merchandise absolutely prohibited, at a distance of two leagues from the land, in the neighborhood of the ports, in the mouths of the rivers, the small bays, and anchoring places along the coasts.”

Reference is made to the French regulation regarding customs search of August 19, 1726, which is found in Léon Béquet, Répertoire du droit administratif (Paris, 1896), Vol. 13, p. 207, note 4. This regulation is translated in Crocker’s work, The Extent of the Marginal Sea, Page 520 as follows:

“Foreign and other small vessels, sailing along the sea coast within a distance of one or two leagues therefrom shall be stopped by the employees of custom-house tenders, barks, and sloops of contractors (adjudicataires), for verification and visit. We permit the said employees, in case of refusal or resistance, to compel by force the masters of the said vessels to allow them on board. We desire that in case of fraud or forged bills of lading, the said small seagoing craft which are laden with contraband goods or salt, in whole or in part, shall be confiscated, together with their cargoes, to the profit of the contractor; and that the masters of the said vessels, sailors, and others of the crews shall be condemned to pay the penalties provided by our ordinances, declarations and regulations for engaging in illicit salt trade or commerce in prohibited goods, in accordance with our Council’s decision of March 9, 1719.”

The Act of August 6–22, 1791, limited the extent of the coast waters to two leagues. Crocker translates this provision from the French text of Duvergier, Collection compléte des lois, décrets, ordonnances, réglemens, avis du Conseil d’Etat, 1791, Vol. 3, p. 197. The translation reads as follows:

Title XIII, Article 7. The officers of the said police boats shall be enabled to visit the boats below fifty ton, which are in the waters within a distance of two leagues of the shores, and shall be shown bills of lading regarding the cargo.”

By the law of March 24, 1794, the extent of coastal waters was fixed at four leagues. The French text, which is found in Duvergier, Vol. 7, p. 115, is translated by Mr. Crocker, Page 522, of his book above mentioned as follows:

  • Article 3. The captain, arriving within four leagues of the coast, shall, on request, display a copy of the manifest to the official who comes on board, who will visé the original.
  • Article 7. The captains and officers and other customs officials, the officers of commerce and of the military marine can visit all boats below 100 ton, anchored or hovering within four leagues of the coasts of France, except in the case of force majeure.”

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The following statement from the Columbia Law Review for May, 1923, page 475, is quoted for your information:

“France admits the three mile zone for fisheries’ control, but her customs and quarantine zone extends two myriameters (about twelve miles). She regulates the admission and sojourn of foreign vessels in war time within six miles and adopts a similar boundary for the enforcement of her neutrality laws. Germany seems to adopt the three mile rule. Italy requires customs manifests to be shown to her officers anywhere within ten kilometers (about six miles). The Court of Cassation in 1885 held that her territorial waters extend four or five miles. Her neutrality laws are enforced within a zone of six and her navigation laws within ten nautical miles. Norway and Sweden have always claimed four miles. Denmark in 1912 proclaimed a neutrality zone of four miles, Greece, in 1914, a zone of six miles, the Netherlands three miles, Uruguay five miles, Portugal six miles. Spain has sought to control fisheries within six miles, but actually enforces her laws only three miles out. Her laws against contraband trade and fraud apply to foreign ships, even when not destined for a Spanish port, two leagues out. Her neutral zone was set at six miles but was later changed to three. Belgium has a customs zone of six miles and a fisheries zone of three geographic miles. Argentine enforces her fishery laws within ten miles. Ecuador establishes her territorial waters for fiscal and police measures and as to neutrality at four naval leagues. Chile limits her territorial sea as a part of the national domain at one league but asserts a right of police to the distance of four leagues.”

The seizure of rum runners beyond the three-mile limit has been construed as legal in certain circumstances by lower Federal courts even in the absence of a treaty extending the right to visit and search up to 12 miles. Three cases dealing with this phase of the matter have been decided by the courts.

The case of United States vs. the British schooner Grace and Ruby (283 Fed. 475) was decided by the United States District Court for the District of Massachusetts on September 18, 1922. In this case it was found that “a dory belonging to the schooner was towed along, presumably for use in landing the liquor or to enable the men to return to the schooner after the liquor was landed.” At the time of seizure the ship was “about four miles from the nearest land.” The court upheld the seizure of the Grace and Ruby and an appeal from the decision is now pending before the Supreme Court of the United States. In this connection there are enclosed for your information copies of a note dated December 30, 1922, received from the British Ambassador and of the Department’s reply dated January 18, 1923, concerning this case.29a You will observe that the Department referred to the case of the British Columbian schooner Araunah, (Moore’s International Law Digest, vol. 1, page 908; British [Page 176] and Foreign State Papers, Vol. 82, page 1058), as a precedent for the action taken in this case.

The case of United States vs 1250 cases of liquor and the schooner Henry L. Marshall (286 Fed. 260) involved the seizure of this British registered vessel and her cargo outside the three mile limit. The seizure of the vessel was upheld by the District Court for the Southern District of New York on October 14, 1922. The decision of the District Court was affirmed by the Circuit Court of Appeals for the Second Circuit in June, 1923. Copies of the notes recently exchanged with the British Embassy concerning this case were forwarded to you with the Department’s instruction No. 941 of July 20, 1923.30 From that correspondence you will observe that the Henry L. Marshall peddled liquor while lying some nine or ten miles off Atlantic City and sent liquor on shore, pursuant to previous arrangements made in the United States, by motor-boats which were not a part of the schooner’s equipment and did not belong to her owner. The court held that the vessel was properly seized because it was engaged in an attempt to violate the laws of the United States by the introduction of liquor within its territory. Its judgment was not based on fraudulent British registry of the vessel. However, the British Chargé d’Affaires ad interim stated in his note of July 10, 1923, that his government would not intervene further with respect to this vessel since “owing to the circumstances in which she secured her British registry (she) was not recognized by His Majesty’s Government as entitled to British registry” and that “as far as His Majesty’s Government are concerned, the Henry L. Marshall remains an American vessel.” In the Department’s note of July 16, 1923, to the Embassy, inquiry was made whether the British Government considered that a vessel admittedly of valid British registry pursuing the course of conduct followed by the schooner Henry L. Marshall was making proper use of the British flag and whether the British Government would espouse the cause of a British merchant vessel engaged in an effort unlawfully to introduce intoxicating liquors into the territory of the United States in the manner adopted by the Henry L. Marshall. No reply has as yet been received to the Department’s note.

The remaining case involves the right of this Government to forfeit bonds given by the United States Fidelity and Surety Company on behalf of the owner of the British schooner Marion Mosher. The schooner was seized outside the three mile limit off New York. The British Embassy protested against the seizure of the vessel and its cargo and they were released when the bonds guaranteeing that the [Page 177] cargo would be delivered at St. John, New Brunswick, the destination named in the ship’s papers, were executed and filed. However, the cargo was not delivered at destination but was smuggled into the United States and proceedings were therefore brought on the bonds. A copy of the court’s charge to the jury is enclosed. You will observe that the court held that the requirement that bonds be given was not improper, since it appeared that the vessel was “in contact with the shore” and was “hovering close to our shore for the purpose and intent of violating our law”.

Referring again to the Department’s note of July 16, 1923, to the British Embassy and to the inquiry contained therein whether the British Government considered that a vessel admittedly of valid British registry pursuing the course of conduct followed by the schooner Henry L. Marshall was making proper use of the British flag and whether the British Government would espouse the cause of a British merchant vessel engaged in an effort unlawfully to introduce intoxicating liquors into the territory of the United States in the manner adopted by the Henry L. Marshall, the Department invites your attention to the following statements made by distinguished British authorities with regard to international law governing cases of this character:

Sir Charles Russell, later Lord Chief Justice of England, in the course of his argument before the Bering Sea Arbitral Tribunal in 1893 made the following statement:

“… take the case of the Revenue laws—the Hovering Acts. … Upon what principle do those Acts rest? On the principle that no civilized State will encourage offences against the laws of another State the justice of which laws it recognizes. It willingly allows a foreign State to take reasonable measures of prevention within a moderate distance even outside territorial waters: but all these offences, and all offences of the same class and character relating to revenue and to trade, are measures directed against a breach of the law contemplated to be consummated within the territory, to the prevention of an offence against the municipal law within the area to which the municipal law properly extends.” (Fur Seal Arbitration, Vol. XIII, Sec. 1076, page 298.)

Hall, in discussing the revenue laws of Great Britain says:

“Whether the law represents a custom or a pretention, foreign nations, insofar as they are practically affected by it, have conceded to it their acquiescence. The powers taken are not put forward as a right: they merely formulate consent. Against a state which resisted their exercise they would not be maintained. But in their present shape, used with moderation, they repose on an agreement which though tacit is universal. No civilized country encourages offences against the laws of a foreign state when it sees that the laws are just and necessary; and the justice and necessity of taking precautionary measures outside territorial waters, in order that infractions of revenue [Page 178] laws shall not occur upon the territory itself, is in principle uncontested. Under the Acts in question therefore no right to action is taken by Great Britain in the high seas, and no right to jurisdiction is assumed over subjects of foreign powers, apart from the acquiescence of the foreign state to which they belong.” (Foreign Jurisdiction of the British Crown, p. 244.)

And in discussing the quarantine laws, Hall makes the following statements:

It is admitted as a principle of international law that motives of self-preservation, sufficiently grave and urgent, warrant a nation in overstepping the usual limits of its rights, and in taking exceptional measures for its security. Though the legislation effected by the Quarantine Act is continuing, the occasions on which it is put in force are occasions of emergency when the attack of pestilence is to be fended off, and when in the view of the framers of the statute no measures less general than those prescribed would be adequate for the purposes of defence. If therefore jurisdiction were exercised in respect of acts completed on the high seas, but calculated to produce effects upon the territory, its imposition would conflict with no principle governing the relations of states.” (Ibid., p. 245).

Westlake, in discussing Hovering Acts, makes the following statement:

“… Questioned by one of the arbitrators as to what the executive authority of a state would do if it had notice that a foreign ship was crossing the ocean for the purpose of violating its revenue laws, Sir Charles said that it ‘would probably do something before the vessel got within the three-mile limit, if it was proved to be necessary, relying upon the non-interference of the state to which that fraudulent vessel belonged not to make any complaint or raise any question whether the strict territorial limits had been exceeded.’ He was attorney-general, and therefore, we may conjecture, did not speak without some knowledge of the practice.” (International Law, 2nd Edition, Part I, page 176.)

Sir Travers Twiss, in discussing the right claimed by Spain under its customs laws to search British vessels on the high seas, makes the following statement:

“If, indeed, the Revenue Laws or the Quarantine Regulations of a State should be such as to vex and harass unnecessarily foreign commerce, foreign Nations will resist their exercise. If, on the other hand, they are reasonable and necessary, they will be deferred to ob reciprocam utilitatem. In ordinary cases indeed, when a merchant ship has been seized on the open seas by the cruizer of a Foreign Power, when such ship was approaching the coasts of that Power with an intention to carry on illicit trade, the Nation, whose mercantile flag has been violated by the seizure, waives in practice its right to redress, those in charge of the offending ship being considered to have acted with mala fides and consequently to have forfeited all just claims to the protection of their Nation.” (The Law of Nations: Rights and Duties in Time of Peace, Sec. 190, 2d., 1884.)

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Although these statements furnished grounds for the contention that the seizure outside the three mile limit of British ships engaged in smuggling liquor was proper, nevertheless this Government in the desire to avoid controversies with respect to cases of a doubtful character has acquiesced in requests submitted by the British Embassy for the release of certain British vessels. In a note No. 338 dated May 1, 1923,32 the British Ambassador stated that he had “no feeling of sympathy for the owners, as such, of a ship engaged in violating the laws of any friendly power.” Nevertheless, the Embassy has protested whenever the officers of this Government have seized a British ship outside the three mile limit on the ground that it was engaged in smuggling operations. You will make it clear in any conversations you may have on this subject that this Government feels that persons engaged in smuggling operations of this character in violation of the laws of a friendly power should not receive the support of their Government, and you may emphasize the class of transactions similar to the Henry L. Marshall case and my observations in my note of July 16. You will report fully the views expressed during your discussion of the matter.

The Department notes that press statements from London report that the proposal of this Government for a treaty covering the matter will be rejected by the British Government but that suggestions will be made respecting methods for suppressing smuggling operations. You are instructed to telegraph promptly any information you may obtain indicating the nature of the reply of the British Government on this subject.

I am [etc.]

Charles E. Hughes
  1. Not printed.
  2. Not printed.
  3. Frederick Edwin Smith, Viscount Birkenhead, Lord High Chancellor.
  4. Foreign Relations, 1922, vol. i, pp. 591 and 592.
  5. Instruction not printed.
  6. Not printed.