第10章 ITS AUTHORITY AND SANCTION.(4)

The principle on which these American doctrines of International Law reposeisI thinktolerably plainThe statesmen and jurists of the United Statesdo not regard International Law as having become binding on their countrythrough the intervention of any legislatureThey do not believe it to beof the nature of immemorial usage'of which the memory of man runneth notto the contrary.They look upon its rules as a main part of the conditionson which a state is originally received into the family of civilised nations.

This viewthough not quite explicitly set forthdoes not really differfrom that entertained by the founders of International Lawand it is practicallythat submitted toand assumed to be a sufficiently solid basis for furtherinferencesby Governments and lawyers of the civilised sovereign communitiesof our dayIf they put it in another way it would probably be that the statewhich disclaims the authority of International Law places herself outsidethe circle of civilised nations.

There ishoweverone community which on one occasion went near to dissentingfrom the American opinion and from the assumptions which it involvesThiswas our own countryGreat BritainIn one celebrated caseonly the otherdaythe English judgesthough by a majority of one onlyforged their decisionon a very different principleand a special Act of Parliament was requiredto re-establish the authority of International Law on the footing on whichthe rest of the world had placed itThe case was one of great importanceand interestand it was argued before all the English judges in the Courtof Criminal AppealIt is known as the Queen vKeynbut is more popularlycalled the 'FranconiaCase (ExDiv63)The 'Franconia,a German ship,was commanded by a German subjectKeynOn a voyage from Hamburg to theWest Indieswhen within two and a half miles from the beach at Doverandless than two miles from the head of the Admiralty pierthe 'Franconia,'through the negligenceas the jury foundof Keynran into the Britishship 'Strathclyde,sank herand caused the death of one of her passengers.

Keyn was tried for manslaughterand was convicted at the Central CriminalCourtbut the question then arose whether he had committed an offence withinthe jurisdiction of English tribunals.

The point on which that question turned was thisAll the writers on InternationalLaw agree that some portion of the coast water of a country is consideredfor some purposes to belong to the country the coasts of which it washes.

There is some difference of opinion between them as to the exact point towhich this territorial waterwhich is considered as part of a country'ssoilextendsThis doctrinehoweverif it were soundmust at some timeor other have been borrowed by the English courts and lawyers from internationalauthorityPrevious to the appearance of International Lawthe law followedin England was differentThe great naval judicial authority was then theAdmiral of Englandwhose jurisdiction was over all British subjects andother persons on board British ships on the high seasIf the doctrine ofthe international jurists prevaileda change mustat some time or other,have taken place in the lawand the point arose as to whether any such changecould be presumedand by what agency it could have been effectedThe judgeswere very nearly equally divided on the pointwhich is a fundamental oneaffecting the whole view to be taken of the authority of International Lawin this countryIn the end it was decided by the majority of the judgesthat no sufficient authority was given for the reception in this countryof the so-called International doctrinebut there was no question that thisdoctrine was the doctrine of the majority of statesand the inconvenienceof having one rule for England and another for the rest of the civilisedworld was palpably so great that Parliament finally stepped inand in theyear 187passed what is called the 'Territorial Waters Act,by which thejurisdiction of the English Courts which had succeeded to the jurisdictionof the Admiral of England was declared to extend according to the Internationalrule to three miles from the coast line of EnglandIn the course of thejudgments which were givenwhich are extremely learnedcuriousand interesting,Lord Coleridgewho was with the minority of the judgesused the followinglanguage:

'My brothers Brett and Lindley have shown that by a consensus of writers,without one single authority to the contrarysome portion of the coast watersof a country is considered for some purposes to belong to the country thecoasts of which they washI concur in thinking that the discrepancies tobe found in these writers as to the precise extent of the coast waters whichbelong to a country discrepanciesafter allnot serious since the timeat least of Grotius are not material in this questionbecause they all agreein the principle that the watersto some point beyond low-water markbelongto the respective countries on grounds of sense if not of necessitybelongto them as territory in sovereigntyor propertyexclusivelyso that theauthority of France or Spainof Holland or Englandis the only authorityrecognised over the coast Raters which adjoin these countriesThis is establishedas solidly as by the very nature of the case any proposition of InternationalLaw can beStrictly speaking"International Law is an inexactexpressionand it is apt to mislead if its inexactness is not kept in mind.