File No. 861.0145/2.

Memorandum of the Solicitor’s office of the Department of State.

[Memorandum.]

municipal seizures beyond the three-mile limit.

The American Ambassador at St. Petersburg reports that the Emperor has approved a law promulgated January 1/14, 1910, whereby the area of supervision by Russian customs authorities has been extended twelve marine miles from low-water mark. Inasmuch as enforcement of this law may lead to seizures of American vessels beyond the ordinary limit of territorial waters, it is necessary to examine the question whether such seizures would be consistent with rules of international law.

The British “Hovering Act” of 1734 assumed for certain revenue purposes a jurisdiction of four leagues from the coast by prohibiting foreign goods from being transshipped within that distance without payment of duties. Boyd says this act has long since been repealed and the present legislation distinguishes as to extent of jurisdiction claimed for revenue purposes between British ships and foreign ships. There is no longer any authority under British law to visit foreign vessels beyond the three-mile limit. (Boyd’s Wheaton, 241). Hall, however, states that within 4 leagues any customs officer may board and demand the manifest of any ship. (Hall, For. Juris. 243.)

The United States in 1797 passed a similar law (probably suggested by the British Act) which has been incorporated in Revised Statutes, section 2760, which reads as follows:

They [officers of the revenue cutters] 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 [Page 1290] thereof, and shall 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 hold of any vessel, and shall remain on board such vessel until they arrive at the port or place of their destination.

The fact that the territorial limits have been in some cases fixed by treaty (for example, Treaty of Guadalupe Hidalgo, 1848, Art. V), or changes suggested by that method (1 Moore, 732), would seem to show how definite and fixed nations regard the three-mile limit of territorial waters. The question of municipal seizure on high seas appears to be left open by the conventions of The Hague Conferences and the London Naval Conference. As indicating the attitude of the political department of the American Government, the following expressions of Secretaries of State may be given:

Mr. Fish, Secretary of State, wrote to the British Minister in 1875, in regard to the treaty of Guadalupe Hidalgo, and the act of Congress on revenue seizures, that:

We have always understood and asserted that, pursuant to public law, no nation can rightfully claim jurisdiction at sea beyond a marine league from its coast. * * *

It is believed, however, that in carrying into effect the authority conferred by the act of Congress referred to, no vessel is boarded, if boarded at all, except such a one as, upon being hailed, may have answered that she was bound to a port of the United States. At all events, although the act of Congress was passed in the infancy of this Government, there is no known instance of any complaint on the part of a foreign Government of the trespass by a commander of a revenue cutter upon the rights of its flag under the law of nations. (1 Moore, 731.)

In 1879, Secretary of State Evarts instructed Mr. Foster, American Minister to Mexico, that—

An attack by Mexican officials on merchant vessels of the United States, when distant more than three miles from the Mexican coast, on the ground of breach of revenue laws, is an international offense, which is not cured by a decree in favor of the assailants, collusively or corruptly maintained in a Mexican court. (1 Moore, 731.)

Secretary of State Evarts in 1881, writing to the Minister to Spain concerning the visitation and firing upon four American vessels near the Island of Cuba in 1880, said:

This Government must adhere to the three-mile rule as the jurisdictional limit, and the cases of visitation without that line seem not to be excused or excusable under that rule.

This Government frankly and fully accepts the disclaimer of the Government of His Majesty that any intention of discourtesy existed in these proceedings. It insists, however, on the importance of a clear understanding of the jurisdictional limit. It insists, likewise, on the distinction between the verification (according to the usual procedure of revenue cruisers), within a reasonable range of approach of vessels seeking Spanish ports in the due pursuit of trade therewith, and the arrest by armed force, without the jurisdictional three-mile limit, of vessels not bound to Spanish ports. (1 Moore, 732.)

The validity of seizures under the above and similar municipal acts has been the subject of comment by various writers on international law. Mr. Dana in his notes to his edition of Wheaton says:

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.

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He criticises the statute of the United States, which, he says—

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. * * * If the foreign vessels have been boarded and seized on the high seas, 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.

After reviewing the cases Church v. Hubbart, 2 Cranch, 187 and 234; Rose v. Himely, 4 Cranch, 241; Hudson v. Guestier, 4 Cranch, 293, 6 Cranch, 281; The Louis, 2 Dods, 245, Dana concludes:

It may be said that the principle is settled that municipal seizures can not be made for any purpose beyond territorial waters,

that is, beyond the marine league.

These and other cases will be briefly reviewed:

Church v. Hubbart (1804), 2 Cranch, 187, appears to be the earliest American case. The plaintiff took out two policies of insurance on the cargo of the Aurora, bound on a voyage from New York to Portuguese ports in Brazil. In one policy was the exception “not liable for seizure by Portuguese for illicit trade,” and in the other, “insurers do not take risk of illicit trade with the Portuguese.” The Aurora cleared from New York for the Cape of Good Hope, but went directly to Rio de Janeiro, where she remained fifteen days, and openly sold $700 worth of goods. Thence she went to Pará on the Brazilian coast, falling in on the way with a schooner. Both anchored four or five leagues from land, off the mouth of the Pará river, and in Para bay. A longboat was put off to speak a boat inshore for the purpose of securing a pilot to carry the two vessels up the river, in order that they might get wood and water, and, if permitted, sell their cargo. Shortly afterward the captain went aboard the schooner and sailed in towards the shore, and brought to, by two shots, a Portuguese schooner and compelled her master to come aboard, but he was later taken ashore in a longboat. The crew of this boat were imprisoned upon shore, and two days later three armed boats came out from Para and seized the Aurora and her companion and imprisoned the crews for attempting to trade in violation of the Portuguese laws prohibiting foreigners from trading with Portuguese colonists. These laws do not state any certain distance from shore within which they apply. Action was brought by the plaintiff to recover on the policy of insurance for the loss of his cargo. Held that no recovery was due because of the exception expressed in the policies, and, it would seem, because the application of the Portuguese law beyond the three-mile limit is not contrary to international law. The court admitted that illicit trade was such only as was contrary to some law. Chief Justice Marshall in delivering his opinion said:

* * * A nation has a right to prohibit any commerce with its colonies, Any attempt to violate the laws made to protect this right is an injury to itself which it may prevent, and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. If they [Page 1292] are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to.

In different seas and on different coasts a wider or more contracted range in which to exercise the vigilance of the government will be assented to (2 Cranch, 234).

Of this decision Mr. Dana said:

It is true that Chief Justice Marshall (in Church v Hubbart) 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.

Rose v. Himely, 4 Cranch, 241, was the case of the American ship Sarah, which after trading at several ports of Santo Domingo sailed with a cargo purchased there for the United States. At ten leagues from the Santo Domingo coast she was seized by a French privateer (February 23, 1804) and taken to Barracoa, a Spanish port in Cuba. There she and her cargo were sold by the captors (March 18, 1804) before condemnation, but under the authority of the French “Agent of Santo Domingo,” and the greater part of the cargo was bought by the master of an American vessel, transshipped, and taken to Charleston, South Carolina. The plaintiff, Rose, supercargo of Sarah, libeled the cargo in the United States on behalf of the original owner. After sufficient time had elapsed to have heard of these libel proceedings, the French captors began proceedings in the Santo Domingo court, which entered a decree of condemnation (about July 15, 1804), on the ground of trading with Santo Domingo contrary to an arrest of March 1, 1804, forbidding trade with Santo Domingo ports, except the port of Santo Domingo, and providing for the seizure of “generally every vessel * * * found at a less distance than two leagues from the coast.” Held, restoration to Rose (that is, decision of Santo Domingo court reversed) by opinion of five judges: two judges, including Chief Justice Marshall, on the ground that it was a seizure under a municipal law, which has effect only within the territory of the sovereign, and not on the high seas as in war; hence possession thus gained by the captor is unlawful, and is therefore possession by the captor alone, and not by the sovereign, and such illegal possession by the captor confers no jurisdiction on the court of the sovereign in Santo Domingo to condemn the property lying in another country; three judges, on the ground that the vessel, crew and supercargo never having been brought within the jurisdiction of the Santo Domingo court or the dominion of the sovereign, that court never had jurisdiction and its sentence is to be disregarded. Two justices dissented. No point is made in the decision of the fact that the arrest was issued after the date of seizure, and no mention appears to be made either in the argument or opinion of the case of Church v. Hubbart, supra.

Hudson v. Guestier, 1808, 4 Cranch, 293, was similar to the case of Rose v Himely, except that the seizure of the vessel Sea Flower was made within the territorial jurisdiction of Santo Domingo and [Page 1293] carried into a Spanish port, of Cuba. While lying there, proceedings were regularly begun in the French court at Guadaloupe, which condemned both cargo and vessel. Held by a majority of the judges, including Chief Justice Marshall, that the decision of the circuit court below for the plaintiff should be reversed (that is, no restoration for the claimant, and the decision of the Guadaloupe court upheld) on the ground that the seizure being made within territorial jurisdiction was indisputably a valid seizure and vested lawful possession in the sovereign (not in the captor, as in Rose v. Himely), and on the ground that while the sovereign has possession of the res the sentence of his court can be executed; hence this possession is an essential fact on which the jurisdiction of the court depends, The court added that while the sovereign has possession the courts of the country where the res is taken have no authority to decide the cause or divest the authority of the sovereign’s courts, at least unless there be such delay in proceeding to condemnation as to justify the opinion that no such proceedings were intended, and thus convert seizure into a trespass. Two judges dissented from this opinion on the ground that the vessel must be brought into a port of the captor’s court before the court of that country had jurisdiction.

The same case came before the United States Supreme Court again (6 Cranch, 281) after a new trial in the lower court, and the question was thus stated in the words of J. Livingston delivering the opinion:

Considering it, then, as settled that the French tribunal had jurisdiction of property seized under a municipal regulation, within the territorial jurisdiction of the Government of Santo Domingo, it only remains for me to say whether it will make any difference if, as now appears to have been the case, the vessel were taken on the high seas, or more than two leagues from the coast.

Held by the majority of the judges that the decision of the circuit court for defendant be affirmed (that is, no restitution to the claimant, and the decision of the Guadaloupe court upheld), on the ground that the sovereign acquired lawful possession through the seizure by the captor though made on the high seas, or in the words of the court:

If the res can be proceeded against when not in the possession or under the control of the court (as decided in Hudson v. Guestier, 4 Cranch, 293), I am not able to perceive how it can be material whether the capture were made within or beyond the jurisdictional limits of France, or in the exercise of a belligerent or municipal right. By a seizure on the high seas she interfered with the jurisdiction of no other nation, the authority of each being there concurrent. It would seem also that if jurisdiction be at all permitted where the thing is elsewhere, the court exercising it must necessarily decide, and that ultimately, or subject only to the review of a superior tribunal of its own state, whether in the particular case she had jurisdiction, if any objection be made to it. * * * Even if the reasons of his judgment (judge of Guadaloupe court) should not appear satisfactory, it would be no reason for a foreign court to review his proceedings, or not to consider his sentence as conclusive on the property. (6 Cranch, 284–285.)

One judge, Chief Justice Marshall, dissented, it would seem, on the ground that the sovereign had ho lawful possession because the ship was taken on the high seas. He observed:

that he had supposed that the former opinion delivered in these cases upon this point (Rose v. Himely) had been concurred in by four judges, but in this he was mistaken.

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The opinion was concurred in by one judge. He was still of the opinion that the construction then given was correct. * * *

However, the principle of that case (Rose v. Himely) is now overruled.

In the face of this statement of Chief Justice Marshall, Dana says, “the judges differed in stating the principle of this case and of Rose v. Himely, and the report leaves the difference somewhat obscure.”

Williams v. Armroyd, 1813, 7 Cranch, 423. The schooner Fortitude, owned by the plaintiff, an American citizen, while on a trading voyage from New London, Connecticut, to Martinico, a British colony, during the war between France and England was seized on high seas by a French privateer for trading with the enemy contrary to the French decree (Milan decree) and taken to St. Martins (French) to await trial. Later the prize master left St. Martins for Guadaloupe with the ship’s papers on the pretense of beginning proceedings. Two weeks later she and her cargo were sold by order of the Governor of St. Martins. Part of the cargo was then transshipped and taken to Philadelphia, consigned to the defendant. Three weeks after the sale the Guadaloupe court condemned both ship and cargo for trading contrary to the Milan decree. The plaintiff libeled the Governor upon arrival in the United States. Held, no restoration, on the ground that the sentence of a competent court in rem is conclusive and passes an absolute change of property. No court of coordinate jurisdiction (as a court of another country) can examine the sentence, consequently its conformity to public or municipal law cannot be inquired into by such court. Hudson v. Guestier, it was said, fully established this principle.

It was contended that the sentence of the Guadaloupe court did not change the property because: (1) The sale was made before the decree of the court, and thus possession passed over to the purchaser, but the court held that the purchaser held possession through and for the captor, and the sentence reverted back to time of capture and affirmed it. (2) Because the Milan decree was contrary to international law, but the court held that it cannot revise the sentence under the decree, even if erroneous or if Congress had said without more that the decree was a violation of international law. The conclusion of the court seemed to be that the sentence of the Guadaloupe court bound the property concerned, whatever might be the opinion of coordinate courts as to the sentence or as to the laws under which it was rendered.

Le Louis, 1817, 2 Dods., 210. This was a French-owned ship with a French register pass, etc., on a voyage from Martinique to Africa, which was captured ten or twelve leagues off of Cape Mesurada, Africa, by a British cutter for carrying on slave trade. The crew resisted capture, some sailors on both sides being killed. An act of the British Parliament enabled the governors or colonies to authorize ships to seize and prosecute vessels engaged in the slave trade or found on or near the coast of Africa and within the limits of any of the colonies. (51 George 3 C., 23.) The captor took the vessel to Sierra Leone, where the admiralty court condemned both vessel and cargo. Held (Sir William Scott), restoration, on the ground that there was no law of France forbidding slave trade at the time of the capture; that the treaty between England and France did not [Page 1295] forbid it; that the British statute of 51 George 3 applied only to British ships and British subjects, for a nation has a right to enforce its laws only so far as it does not interfere with the rights of others; that if there was a French law it could not be enforced by England without a treaty; and that slave trading is not a crime under international law. The court assumed the fact of resistance and of jurisdiction of the lower court, though neither was perfectly shown, and also assumed that the ship had a “contingent intention” to trade in slaves, as she had on board manacles, platforms, large quantities of stores, etc.

Dana, however, says “the arrest was held unjustifiable because made in time of peace for a violation of municipal law beyond territorial waters.”

In re Cooper, 1891, 143 U. S. 473. The British schooner Sayward while sealing in the Behring Sea, seventeen miles from land, was seized by an American revenue cutter and taken to Sitka, Alaska, and libeled and condemned for the violation of Revised Statutes 1956, which prohibited killing seals within the limits of Alaskan territory. The 477 sealskins on board were also condemned. The answer of the claimants before the lower court denied that the ship was sealing within Alaskan territorial waters, and the case came before the United States Supreme Court on an application for a writ of prohibition to restrain the United States Supreme Court in Alaska from enforcing its decree of forfeiture and condemnation. Held, application refused on the ground that the courts are bound by the action of Congress or the Executive within the limits of the Constitution or laws; that the courts are given jurisdiction by Revised Statutes 1954, 1956, 734, and 563, section 3 of the act of March 2, 1889 (25 Stats. 1009), and the treaty with Russia of 1867; that from the record of the lower court it does not appear that the seizure was made outside of the three-mile limit, so the legal inference is that it was made within the limit; that the master raised no question of jurisdiction in the lower court; and that, inasmuch as the lower court had power to inquire into its jurisdiction, its maintenance of same involved the conclusion necessary to sustain it. Hence upon the face of the libel, the facts found below, and the final decree, the district court clearly had jurisdiction. The petitioner had a remedy by appeal from that decree which is rendered of no effect because of his neglect to have included in the findings the exact locality of the seizure.

The Sylvia Handy, 1891, 143 U. S. 513. This was a case of libel in the United States district court in Alaska against this ship for sealing in the Behring Sea in violation of Revised Statutes, section 1956, for which she was seized by a United States revenue cutter. The district court decreed forfeiture of ship, tackle, etc., and 1,679 sealskins on board. Motion in arrest of judgment was overruled, and an appeal taken to the United States Supreme Court. Held, the decree of the district court affirmed on the ground of in re Cooper (143 U. S. 472).

I do not find that this case came before the Behring Sea Claims Commission, but the case of the Sayward was presented to that commission. The Paris tribunal of arbitration which sat under the treaty of 1892 between the United States and Great Britain, held in [Page 1296] effect that the United States had no jurisdiction in the Behring Sea beyond the ordinary three-mile limit, and had no right to protection of property in the fur seals frequenting the islands of the United States in the Behring Sea when such seals are found outside the three-mile limit. With the point of jurisdiction thus decided the question of the damages for seizures of British sealing vessels was decided by another commission under the treaty of 1896. This commission awarded the amount of compensation to be paid to Great Britain on behalf of the owners, master, officers and crew of the Sayward, at a total of $20,262.

To summarize the above cases, it may be said that in Church v. Hubbart, Chief Justice Marshall in effect held that the facts made out a case of illicit trade within the exception in the policy, so that there could be no recovery for loss of ship resulting from such illicit trade. This, however, is quite a different thing from saying that the seizure of the ship was legal or illegal. The trade may have been illegal whether the seizure Avas legal or illegal. The exceptions in the policy do not qualify the word “seizure.” If the trade was illicit, it does not appear whether it was illicit from what was done beyond or within the three-mile limit, hence it is difficult to see how this case either upholds or denounces municipal seizure beyond the three-mile limit. The case of Rose v. Himely is not a strong one as the grounds of the decision were not concurred in by a majority of the judges. Hudson v. Guestier, decided on the same day as Rose v. Himely, is not in point, for then the seizure was considered as made within territorial waters. When this case came up again, however, the seizure was considered as made upon the high seas, and the court held that the jurisdiction of the Guadaloupe court was not affected by seizure on the high seas, and that, anyway, the Guadaloupe court was the one to determine its own jurisdiction and may have done so in this case, and its decision could not be reviewed by a coordinate court. But to hold that a court has jurisdiction of a case is not to hold that the decision of such court as to the legality of the seizure is correct. (See Dana’s similar conclusions.) This view of the United States Supreme Court is significant, however, in showing how foreign judgments in cases of municipal seizures on the high seas arc considered when the foreign court has jurisdiction and acts fairly. In Williams v. Armroyd, the court practically followed Hudson v. Guestier, and held that the sentence of a competent foreign court in rem is conclusive. The case of Le Louis is a case in point, being a seizure on the high seas for a supposed violation of a British law, but Sir William Scott held that the British law applied only to British ships, and British subjects, and for this and other reasons restored the French ship. The cases in re Cooper and Sylvia Handy are also cases in point where the United States District Court in Alaska condemned British vessels for violation of municipal law on the high seas. This court and the Supreme Court were bound by the municipal law as would have been Sir William Scott in Le Louis had the offender been a British subject. (See Regina v. Heyn, 13 Cox C. C. 403; Conception Bay case, 2 App. Cas. 394.) The decision of the Arbitral Tribunals, however, reversed in effect the cases of [Page 1297] in re Cooper and Sylvia Handy, and no doubt many others which never got to the United States Supreme Court. The case of Marianna Flora, 11 Wheat. 1, has not been mentioned, as it was later considered in Palmyra, 12 Wheat. 1, as a case of seizure jure belli.

Thus it would seem that the question whether municipal seizures beyond the three-mile limit are legal has been decided affirmatively by the municipal courts, bound by municipal law, and negatively by international tribunals governed by international law. This last was the general view contended for by Chief Justice Marshall in the earlier cases above reviewed.

L. H. W. [Woolsey].

Note.—In the North Atlantic Coast Fisheries Arbitration, Great Britain did not contend that she had jurisdiction beyond the three-mile limit outside of “bays.” This is shown on page 25 of the British countercase where it is stated that the action of the British brig Jaseur, in seizing an American vessel on the high seas, “could not be justified.” Great Britain contended, however, that she had jurisdiction in bays beyond the three-mile limit, and that seizures made in such bays, but beyond three miles from the shore, were legal, not because they were made on the high seas for violation of the municipal law, but because they were made in territorial waters for violation of treaty rights. Mr. Cartwright states that inasmuch as the United States wished to show that Great Britain had not asserted jurisdiction in bays beyond the three-mile limit, seizures in such localities were not exhaustively treated in the United States case.

The main cases, however, cited by either country are three in number.

The Bay of Fundy case was a seizure of the American vessel Washington, 10 miles from the shore of the bay, for fishing in-violation of the British-American treaty of 1818. The question was whether this was fishing within “three miles of the coasts, bays etc.” An award was granted to the claimants. (Claims Commission 1853, Moore Arb. 4342.)

The Argus case was a seizure of the American vessel Argus 28 miles from land, and not in any bay, by a British ship, for fishing in violation of the same treaty of 1818. An award was made to the claimants because, being 28 miles from shore, there was no violation of the treaty of 1818. (Claims Commission 1853, Moore Arb. 4344.)

The Moray Firth case, referred to at the beginning in Mr. Warren’s argument for the United States, is a recent Scottish case which is not readily available. This appears, however, to be the case reprinted in American Journal of International Law, 526. In this case a Norwegian boat was seized 5 miles from shore in Moray Firth, a bay whose mouth is 13 miles wide, and the master fined 50 pounds, for trawling in violation of a Scottish act and regulations thereunder, forbidding trawling in this firth. The court held it was bound by municipal statutes; that therefore this case became a question of construction of the statute; that the statute covered not only the firth but aliens fishing therein.

L. H. W.