Chapter III is made subject to the same power of the Secretary of State. In this the Act diminishes the ancient jurisdiction of the Courts ; for if the offence were committed on the high sea, the Courts have in such cases jurisdiction in virtue of the laws which affect British ships on the high seas. This question will be fully examined in the second Part of this book.

In the result, therefore, both British subjects and foreigners on board British or foreign ships in the territorial waters of England, are out of the jurisdiction, save only in respect of Summary of offences committed on board and within those territorial waters: the law as to the territo- for such offences, they are to be arrested tried and punished in rial waters. the same way as for other offences within the jurisdiction of the

tween terri

on waters.

Admiral. From this it follows that the process of the civil Courts does not run within the territorial waters; it seems more than doubtful whether extradition warrants can be executed: and ships are, for all purposes not within the Act, on the high seas. But so much of the high sea legislation as relates to matters not falling within the purview of the Act, applies within the territorial waters, and the common law is in force on British ships therein as it is on the high seas.

There is one important question of detail which is omitted from the Act. The limit is defined to be "a marine league from Conflict be- the coast, measured from low-water mark". This apparently torial belt brings the territorial waters into conflict with the dominion and domini- waters. But on closer examination of the definition of territorial waters, it will be found that the dominion waters are probably. themselves included, the 3-mile belt being created expressly in the open sea ". This question will also be examined at greater length hereafter, but for the present it is important to note that the belt should run outside the realm, including the waters of the realm. But then there is a difficulty as to the measurement of the marine league from low-water mark; and it is difficult to predict how the Courts would deal with it.

gested.

66

The practical solution would be to allow the territorial A practical solution sug- waters to merge into the dominion waters where the 3-mile limit strikes the outer line of these waters; for it might reasonably be supposed that all the purposes of the territorial belt would be fulfilled by the dominion waters. It is doubtful whether the Courts would be free to create such a principle. The declaration

of the exclusive fishery limits in the Hague Convention is so Chapter III worded that warrant might be found in it; but, as we shall presently see, this is not free from doubt.

There is, however, to be found in the books a principle which has some analogy to this solution, which is known as

the "Headland doctrine." This, as I understand it, is some- Headland what as follows-If the line of the 3-mile limit were to follow doctrine. too accurately the sinuosities of the coast-line it would be difficult, if not impossible, to keep it traced with certainty. There would be little loops and lakes of high sea at all the indented points of the coast; and, as in the case of the [f. p. 30.] dominion waters, so in the case of the territorial waters, it is manifestly to the advantage of all concerned that so artificial a boundary to the jurisdiction exercised within it should be as definite as it is possible to make it without buoying, so that the point of transition from the known law governing those who are on board ship to the unknown law of some foreign State should be recognisable to mariners without much difficulty. Therefore, although the trend of the shore is followed by this imaginary belt, the headland doctrine. straightens it as much as possible on its outer edge by allowing it to leap from headland to headland, making within these leaps broad expanses of territorial waters. The leap, it will be understood, is not, strictly speaking, from headland to headland, but between two imaginary points lying 3 miles to sea from low-water mark off the headlands. The doctrine. must therefore in practically all cases in which it applies, extend the limits of the belt beyond 3 miles at all points of the coast-line within the headlands.

this doctrine.

The difficulty in accepting this doctrine is twofold. First, Difficulties the Act contains no warrant for it: secondly, it is, within the in applying limits of its own application, as much in conflict with the principle of the dominion waters as the simple 3-mile limit.

The headland doctrine probably owes its existence in the books to the declarations in the sea-fishery conventions with France and the North Sea Powers. These declarations were Declaration made in both cases in respect of "exclusive fishery limits; " but as to territhe question of the territorial waters is involved, for the object in the Hague of the Hague Convention is to "regulate the police of the fisheries in the North Sea outside territorial waters,"

I.

torial waters

Convention.

Chapter III

[cf. 46 & 47 Vict. c. 22, sched. art. 1.]

The second article of the Convention is as follows:

"The fishermen of each country shall enjoy the exclusive right of fishery within the distance of 3 miles from low-water mark along the whole coasts of their respective countries, as well as of the dependent islands and banks.

As regards bays the distance of 3 miles shall be measured from a straight line drawn across the bay in the part nearest the entrance at the first point where the width does not exceed 10 miles.

The present article shall not in any way prejudice the freedom of navigation and anchorage in territorial waters accorded to fishing boats, provided they conform to the special police regulations enacted by the Powers to whom the shore belongs."

If there is any warrant in law for the headland doctrine, it must be found in the confirmation of this provision by the Sea Fisheries Act, 1883. But this is part of a larger question, whether this Act has in any other way amplified the definition of territorial waters in the Territorial Waters Act, for in this the not unimportant sandbanks and coral reefs are omitted. There is indeed a still more important question to be considered whether the effect of the Sea Fisheries Act has not created for all purposes the belt of territorial waters round the British dominions, and so supplemented the Territorial Waters Act under which criminal jurisdiction alone can be exercised in those waters. But the discussion must be postponed until [see Part II, Chapter IX.] the intricate questions involved in the sea-fishery legislation have been examined.

NOTE ON WARLIKE OPERATIONS IN TERRITORIAL

WATERS.

I have, on p. 35, adopted the proposition which is commonly accepted, that warlike operations by belligerents in the territorial waters of a neutral state is a violation of neutrality. This statement proceeds on the assumption that the State in question has created for itself such a protective belt of waters. But, if the basis on which this chapter proceeds is sound, Great Britain stands in the peculiar position of having no territorial waters for general purposes, but only for the special purposes declared by the Territorial Waters Act and a few other isolated statutes. If this be so, it seems more than doubtful whether the above proposition can hold good in the case of Great Britain. The importance of the suggestion made in the last paragraph with regard to the possible effect of the Sea Fisheries Act on the question becomes apparent.

There is yet another point of importance-whether the belligerent right of search can be exercised in territorial waters which in fact exist. As they still remain high seas, it seems probable that this right can be exercised in them, though not, of course, within dominion waters,

Chapter IV

Of Nationality.

A

NATIONALITY AT COMMON LAW.

The common law of England recognised as the test of En- Chapter IV glish nationality, birth within the realm—jus soli—and not descent Common from English ancestors-jus sanguinis. Every person born within law rule as the realm was a British subject, and every person beyond the realm was an alien. To this hard and fast rule there were but few exceptions.

(i)-The Children of the King.—

to nationali

ty.

to the com

The children of the King born abroad are not within the Exceptions operation of the rule, but are British subjects. The statute of 25 mon law. Edward III, which will be considered presently, is declaratory of [cf. p. 47.] the common law so far as the children of the King are concern- Children of Sovereigns. ed; the prelates and nobles of the realm had said eight years previously

"that there was no manner of doubt that the children of our Lord the King, in whatsoever part they might be born, whether within the sea or beyond, would bear the inheritance of their ancestors."

And the prelates, earls, barons and other wise men of the Council repeated this in 1552, with one assent declaring that this is the law of England and always had been, and approving and affirming it for ever.

Sir Alexander Cockburn has doubted whether the statute was declaratory of the common law; but it is probable that the doubt relates only to the remaining provisions.

There also can be no manner of doubt that the rule extends to the children of foreign Sovereigns born within the British dominions, as part of the immunity from the operation of the law which hedges the kingship.

Lord Coke laid down, in Calvin's case, the doctrine which underlies this first exception-the dignity of King is universal: "for if a king of a foreign realm come into England, by the leave of the [Rul. Ca. II: pp. 604, King of this realm (as it ought to be), in this case he shall sue and 605.1

Chapter IV be sued by the name of a King": and again "though the King be in a foreign kingdom, yet he is judged in law a King there."

Children of ambassadors.

quence of

exterritoriality of the King's representative.

(ii)-Children of the King's Ambassadors.-

It is also agreed that the children of British ambassadors, although born abroad, are British subjects: and the converse of the rule holds good; the children of a foreign ambassador accredited to Great Britain, are held to be the subjects of the King whose ambassador he is. There is no definite decision on the subject, but it is always assumed, and was referred to by Lord Coke in Calvin's case. The only difficulty about the rule is one which is common to all rules which are assumed and not expressly enunciated: its extent has never been worked out.

It seems clear that it is the natural consequence of the personal exterritoriality of the ambassador, and does not need so narrow a reason to support it as that given by Westlake, and The rule a apparently approved by Sir A. Cockburn, "that an ambassador's direct conse- house is reputed part of his Sovereign's realm", for that is but the personal an incident of his exterritoriality. Indeed the suggested reason is unsound: for the ambassador's children are not necessarily born in the Embassy, and the exterritorial privilege of the house extends to all who are actually present though not resident in it. It is not necessary to go beyond the fact that the ambassador is the actual representative of his Sovereign, and he is therefore invested personally with a privilege which is essentially a kingly privilege. If this is accepted as the true reason it settles other Rule does questions which do not seem so far to have been considered. It would not extend to the staff, although they are included in some of the other privileges, such as immunity from arrest: nor would it extend to consuls to whom sometimes by convention, sometimes by comity, a somewhat similar privilege is extended; nor to any officials who are not personal representatives of their Sovereign. But it would probably apply to ministers and chargés d'afOfficers in- faires, who in some sort occupy the same position of representing the Sovereign at a foreign court. But again it would not apply to an ambassador journeying in a country to which he is not accredited. From the nature of the case, the rule has no application to Viceroys or Governors under any circumstances.

not extend to the staff.

cluded in the rule.

(iii)-Children of the King's Soldiers.—

Children born abroad whose fathers are in the military service