Treaty of Utrecht and subsequent treaties; but retained the right of fishing on a footing of equality with British subjects in the territorial waters (i) of Newfoundland passing by the north between Cape St. John and Cape Ray, during the ordinary fishing season, with a right to enter any port or harbour, and to obtain supplies on the same conditions as the inhabitants of Newfoundland, subject to the local regulations. In consideration of this Great Britain agreed to pay an indemnity in respect of any loss thereby occasioned to French fishermen; the amount of such indemnity to be determined by arbitration. The Right of Fishing on the High Seas.-The right of fishing on the high seas is open to all; each State having jurisdiction only over its own subjects and own vessels. Nevertheless, in the common interest, provision is sometimes made by international convention for the mutual enforcement of certain restrictions and police regulations, in the case of fishing grounds frequented by fishermen of various nationalities. So, by the North Sea Fisheries Conventions of 1882 and 1889, the Powers abutting on the North Sea adopted a variety of regulations designed to secure the maintenance of peace and order amongst vessels engaged in fishing in the North Sea outside territorial waters; whilst by the conventions of 1887, 1893 and 1894, the sale of spirituous liquors is also prohibited (k). Moreover, by municipal law, the engagement by the subjects of one State in fisheries outside the territorial limits is sometimes subjected to certain restrictions. Thus, as has already been pointed out, the award of the arbitrators in the Behring Sea controversy of 1893 imposed on the parties the duty of enforcing certain restrictions and regulations on their subjects and citizens, as regards the seal fisheries in the Behring Sea; an obligation which has now, so far as British subjects are concerned, been given effect to by the Behring Sea Award Act, 1894. At the same time, it would seem that the claim to exercise jurisdiction and control even over foreigners, in relation to fisheries outside territorial limits, has not been wholly abandoned. The provisions in this respect of the Commonwealth of Australia Constitution Act, s. 51, sub-s. 10, have already been noticed (1). A similar extra-territorial jurisdiction has also been asserted with respect to the pearl fisheries of Ceylon and in the Persian Gulf (m). But, in general and except where sanctioned by convention and in relation to the subjects of the signatory Powers, it would seem doubtful whether any such jurisdiction can be validly claimed or exercised, even by prescription. Special interests in such cases must be deemed to be subordinate to that larger interest which is involved in the preservation of the freedom of the sea, and the common right to its products. (i) Other than the mouths of rivers, this subject, see the Sea Fisheries beyond a straight line drawn between the extremities of the two banks. (k) For a more detailed account of this and other conventions, see Oppenheim, i. 442-4; and Lawrence, p. 182. As to British municipal legislation on Acts of 1868 and 1883. See also (1) Supra, p. 135. (m) But see Westlake, i. 186. EXTRA-TERRITORIAL ACTION-SELF-PROTECTION. THE CASE OF THE "CAROLINE." [1843; Parl. Papers, vol. lxi.; Wharton, Digest, i. § 50.] Case.] IN 1838, during the Fenian raids on Canada, a body of insurgents having armed and organised in American territory, and having occupied a small island on the American side of the Niagara river, proceeded to make preparations for a descent on British territory, by means of a small steamer called the "Caroline." Thereupon the officer in command of the British. forces determined on attacking the "Caroline." Caroline." At the time when the attack was proposed it was expected that the vessel would be found moored in British territory, near Navy Island, in the Niagara river; but after the expedition had started it was found that she had altered her usual moorings, and had shifted to the United States side of the river. Notwithstanding this, the attack was made; with the result that the vessel was boarded, and after a short resistance sent down the Niagara. The United States Government, in complaining of this violation of its territory, called on the British Government to show a necessity for self-defence, instant, overwhelming;-leaving no choice of means and no time for deliberation;-and also that nothing was done in excess of the requirements of self-defence. In the negotiations which ensued Great Britain complained that a hostile expedition had been permitted by the United States Government to organise on American territory without any effort being made to suppress it; and that American citizens had supported the seditious movements directed against the safety of Canada. The United States Government, on the other hand, complained that the attack on the "Caroline was not such as was warranted by the necessity of self-defence; that it was made upon a passenger ship at night; that it was an invasion of United States territory; and that though the case had been brought to the notice of the British Secretary for Foreign Affairs, unnecessary delay had taken place in the communication of his decision in the matter. The negotiations lasted over five years, but the matter was in the end settled amicably. The British Government expressed its regret for what had occurred, and also that an apology had not been made at the time. At the same time, so far as related to the violation of the United States territory, it maintained (1) that there was no choice of means, for the reason that the American Government had already shown itself powerless in the matter; (2) that there was no time for deliberation, for the reason that invasion was imminent; and (3) that nothing had been done in excess of what the necessities of the occasion required, for the reason that the British forces had confined their action to the cutting adrift of the vessel, and so depriving the invaders of their means of access. The United States Government ultimately accepted these explanations. There are cases in which even the violation of the territory of another State may be excused, on the grounds of necessity and selfdefence. But for this it must be shown that injury of a very grave character was threatened; that there was no other means of avoiding it; and that nothing was done in excess of the requirements of selfpreservation. In the case of The Caroline, the Government of the United States virtually admitted the existence of this principle; but called on Great Britain to show that such instant and overwhelming necessity as would alone excuse the violation of the territory of another State existed. The British argument was all the more effective, for the reason that the United States Government was itself in fault in allowing such enterprises against the safety of Canada to be undertaken on American soil (n). Another instance in which the same principle was relied on occurred in 1817, when the United States Government took upon itself the destruction of a band of buccaneers who, under pretence of being engaged in rebellion against the Spanish Government, had established themselves on Amelia Island, in Florida, then belonging to Spain, and thence made depredations on commerce and adjoining territory of the United States (o). the GENERAL NOTES.-The Alleged Right of Self-preservation.— Although it may be true that "in the last resort almost the whole of the duties of States are subordinated to the right of self-preservation," yet it would seem that this so-called right cannot, generally, and in so (n) As to the grave breaches of international duty of which the United States Government was guilty in 1838, and again in 1866, see Hall, 221 n. (0) See Wharton, Digest, i. 222. far as it relates to the preservation of the national existence, be made the foundation of legal rules. As Westlake insists, self-preservation is limited by justice. There are some acts a State must not commit even for its preservation from destruction (p). It is a fact of international life which has to be reckoned with, and by which all international rules are conditioned or limited; but, like intervention (q), of which it is commonly put forward as one of the chief grounds, it belongs rather to the domain of political action than that of law. The seizure, for instance, by Great Britain, in 1807, of the Danish fleet, in order to frustrate the designs of Napoleon, was in fact not the assertion of a legal right resting on usage, which other States were in strictness bound to recognise or uphold, but an act of violence rendered necessary in fact by the requirements of self-preservation (r). Nevertheless, for certain purposes, and within certain limits, the principle of self-protection or self-defence is recognised in international law, as in municipal law, as a justification or excuse for certain forms of extra-territorial action which would otherwise be unlawful; and to this extent it may be said to possess the character of a legal rule or principle. Self-defence as a Justification for certain Forms of Extra-territorial Action. Amongst the more important applications of this principle we may include: (1) the right of a State to protect itself against an impending injury of a grave character, which is immediately threatened from the territory of another State, in circumstances where an appeal to the latter would be of no avail the limits of which have already been considered in the case of The Caroline; (2) the right of a State to protect itself in the case where a similar injury is threatened from the high seas, by a vessel flying a foreign flag-the limits of which will be discussed subsequently in connection with the case of The Virginius; and (3) the right of all States to exercise a jurisdiction over vessels reasonably suspected of piracy, even though purporting to fly a foreign flag, to the extent of ascertaining their true character-the limits of which will be considered in connection with the case of The Marianna Flora (s). To the same principle are sometimes also referred such rights as the right of belligerents in time of war to protect themselves against certain acts done by neutrals which are likely to prejudice the conduct of their military or naval operations (t); the right of a State in certain cases to vindicate an infraction of its territorial laws by immediate pursuit and arrest even on the high seas (u);—and the right of a State to intervene for the protection of the persons, property, and interests of its nationals outside the limits of its own territory (x);all of which will be considered hereafter in connection with the various topics to which they are appropriate. (p) Hall, 279; Westlake, i. 296-9. (q) Save, perhaps, when resorted to as a matter of international police; see p. 362, infra. (r) See Hall, 281; Taylor, 411. (s) Infra, p. 275. (t) This subject belongs to the law of war, and will be dealt with in vol. ii. But as to the counter-right of self-preservation in such cases as against the belligerent, see The Ship Rose v. U.S. (36 Court of Claims, 291; Scott, at p. 881). (u) Infra, p. 175. SELF-DEFENCE AND PROTECTIVE JURISDICTION ON THE HIGH SEAS. THE CASE OF THE " VIRGINIUS." [1873; Parl. Papers, 1874, vol. lxxvi.] Case.] THE "Virginius was a steamer which had been registered in 1870 in the port of New York as an American vessel and had received a certificate in the usual form; but for some time prior to July, 1873, she had really been owned by and employed in the service of the Cuban insurgents. In July, 1873, when so employed, she left Kingston, in Jamaica, nominally for Limon Bay, in Costa Rica, but really for the coast of Cuba, and on being chased by a Spanish warship put into Port-au-Prince, in Hayti; thence she proceeded again to the coast of Cuba, but whilst still on the open sea she was again chased and eventually captured on the 1st of November by the Spanish warship 'Tornado." At the time of capture she had on board a large quantity of arms and ammunition, as well as a large number of passengers, many of whom intended, as there was reason to believe, to join the insurgent forces in Cuba, and some of whom were, indeed, alleged to be leaders of the insurrection; although others, including some of the British subjects, had shipped in the belief that the vessel was really bound for Costa Rica. At the same time the Virginius" offered, and was capable of offering, no resistance to search or capture; and her passengers were not at the time of capture armed or organised or capable, in their then position, of engaging in immediate hostilities. The vessel was thereupon taken into Santiago de Cuba, and the passengers and crew were detained on a charge of piracy and aiding rebels. Four of her passengers were tried by court-martial on the 3rd of November, and were shot on the 4th; later, sixteen British subjects, part of the crew, were similarly tried and shot, in spite of the protests of the British Consul; whilst seven others were detained in prison. Amongst those who were executed were also nine citizens of the United States. Great Britain then declared that she would hold the Spanish Government responsible for any further executions; reserving for the time |