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Published online by Cambridge University Press: 12 April 2017
288 U. S. 102 (Preliminary print).
1 The view that the treaty modified the limits within which British vessels might be seized for violation of the laws prohibiting alcoholic liquors is supported by the following eases: The Frances Louise, 1 F. (2d) 1004; The Marjorie E. Bachman, 4 F. (2d) 405; The Sagatind, 11 F. (2d) 673, 675; The Over the Top, 5 F. (2d) 838, 844; Ford v. United States, 10 F. (2d) 339,347, affirmed, 273 U. S. 593; Hennings v. United States, 13 F. (2d) 74, 75; United States v. Ferris, 19 F. (2d) 925, 926; United States v. Schouweiler, 19 F. (2d) 387; compare United States v. Cargo ex British Schooner Patara, 40 F. (2d) 74. In other cases the view has been expressed that the treaties did not restrict, at all events, the right of seizure. The Vinces, 20 F. (2d) 164,174, affirmed sub nom. Gilliam v. United States, 27 F. (2d) 296 (compare id., p. 301); The Panama, 6 F. (2d) 326,327; The Resolution, 30 F. (2d) 534, 537-538; The Pescawha, 45 F. (2d) 221, 222. Compare, also, the following cases in which seizure was made within twelve miles but in which it does not appear whether it was made within an hour's sailing distance or whether the question of the effect of the treaties was raised. The Mistinguette, 27 F. (2d) 738; United States v. 63 Kegs of Malt, 27 F. (2d) 741; The Newton Bay, 30 F. (2d) 444, affirmed, 36 F. (2d) 729; The Amaranth, 35 F. (2d) 872; The Marion PhiUis, 36 F. (2d) 688; The Deauville, 49 F. (2d) 372; The Thorndyke, 53 F. (2d) 239; The Miss C. B., 59 F. (2d) 744.
2 Similar treaties have been entered into with fifteen other countries: Norway, July 2,1924 (43 Stat. 1772); Denmark, July 25,1924 (43 Stat. 1809); Germany, August 11,1924 (43 Stat. 1815); Sweden, August 18, 1924 (43 Stat. 1830); Italy, October 22, 1924 (43 Stat. 1844); Panama, January 19, 1925 (43 Stat. 1875); Netherlands, April 8, 1925 (44 Stat. 2013); Cuba, June 19, 1926 (44 Stat. 2395); Spain, November 17, 1926 (44 Stat. 2465); France, March 12,1927 (45 Stat. 2403); Belgium, January 11, 1928 (45 Stat. 2456); Greece, February 18,1929 (45 Stat. 2736); Japan, January 16,1930 (46 Stat. 2446); Poland, August 8,1930 (46 Stat. 2773); Chile, November 26,1930 (46 Stat. 2852). The only substantial difference in these treaties is in Article One, dealing with the general principle of a three-mile limit; in the treaties with Great Britain, the Netherlands, Germany, Cuba, Panama and Japan, the principle is declared to be accepted, while in the others rights and claims in that regard are declared to be reserved.
3 The argument was advanced by the Solicitor General as representing the view not of the Department of Justice but of other lawyers for the Government.
4 Reenacted by Act of March 2, 1799, c. 22, § 71, 1 Stat. 627, 668; and see Kev. Stat. §3067.
The model for the American statutes was the British Hovering Act of 1736,9 Geo. II, c. 35, § 23, which provided for the forfeiture of vessels under 100 tons into which foreign goods were taken within four leagues of the coast. Compare the earlier British Hovering Acts of 1709 and 1718:8 Anne, c. 7, § 17; 5 Geo. I, c. 11. In 1876 all existing hovering acts were repealed by the Customs Consolidation Act, 39 & 40 Viet., c. 36, which provides in Section 159 for the forfeiture of vessels belonging in whole or in part to British subjects or having half the persons on board British subjects, where the vessel is found, or discovered to have been, within three leagues of the coast; and for the forfeiture of other vessels found, or discovered to have been, within one league of the coast. For the development of the British law, see William E. Masterson, Jurisdiction in Marginal Seas, pp. 1-173.
5 For those acts, see Maul v. United States, 274 U. S. 501, 517, note 18.
6 The note of the Secretary of State of June 26, 1922, to the British Ambassador, recites “ that many of the ships engaged in the illegal smuggling of liquor into the United States are registered under the British flag and that large quantities of liquor are carried by such vessels” from British possessions. Dept, of State Press Release, February 16, 1927.
7 The Henry L. Marshall (286 Fed. 260, 262) was seized August 12, 1921; the Orace and Ruby (283 Fed. 475) on February 23, 1922; the Marion L. Mosher on July 27, 1923 (United States v. United States Fidelity & Surety Co., unreported, decided August 13, 1923, in the District Court for the Eastern District of New York); the Louise F. (293 Fed. 933), on November 5, 1923; the Island Home (13 F. (2d) 382), on November 24, 1923; the Muriel E. Winters (6 F. (2d) 466), on January 6, 1924. For notices of other seizures of this kind, not resulting in adjudication, see Jessup, Philip C.,The Law of Territorial Waters and Maritime Jurisdiction, pp. 254-256.Google Scholar
In reply to a question in the House of Commons on June 6,1923, concerning the number of British vessels seized, the Under Secretary of State for Foreign Affairs replied: “ Broadly speaking, some 20 or 25 cases are known to His Majesty's Government where vessels, mostly of Canadian registry, have been seized. The seizures have occurred at varying distances from the shore, some within and some without the three-mile limit. The crews have nearly always been detained for varying periods. His Majesty's Embassy at Washington have acted repeatedly, and in the strongest possible manner, to secure the release of vessels seized outside the three-mile limit, or inside it when a genuine case of distress seemed to be made out.” 164 Parliamentary Debates (Commons), 5th series, col. 2212.
8 See Congressional Record, Vol. 62, Part 11, 67th Cong., 2d Sess., p. 11,593. An amendment to § 581, as reported, was proposed and withdrawn; the amendment would have made the section applicable specifically to searches and seizures for violation of the laws prohibiting alcoholic liquors. As enacted, however, the section did not fall short of the powers which the amendment would have granted in more particular terms. See Jessup, Philip C.,The Law of Territorial Waters and Maritime Jurisdiction, p. 214.Google Scholar
9 See Report of the Attorney General, 1923, pp. 89-90. The practice was adopted of requiring a bond, on release, conditioned on the delivery of the cargo to the ports named in the clearance papers. Ibid. The class of vessels not released was extended, in the case of the Henry L. Marshall, to include a vessel beyond the three-mile limit, where, although the small boats were not the vessel's own, there was unity of control over the vessel and boats. 286 Fed. 260, affirmed. 292 Fed. 486.
10 A statement of the American position is contained in a communication from the Secretary of State to the American Charge d’Affaires ad interim in London, dated August 25, 1923. MS. Records, Dept, of State. And see the communication of the Secretary of State to the British Ambassador, January 18, 1923, in which the American position is declared to be supported by the view of the British Government concerning the seizure by the Russian authorities in 1888 of the British schooner Araunah (82 British and Foreign State Papers, p. 1058). Dept, of State Press Release, February 16,1927. See, also, the address of the Secretary of State before the Council of Foreign Relations, on January 23, 1924, printed in 18 American Journal of International Law, p. 229.
11 The British Government stated that by the Customs Consolidation Act of 1876 “ British municipal legislation is made to conform with international law.” Note of July 14, 1923, MS. Records, Dept, of State. For the Act, see note 4, supra.
12 The British Ambassador to the Secretary of State, December 30, 1922, Dept, of State Press Release, February 16, 1927.
13 The British Chargfi d'Affaires ad interim to the Secretary of State, July 10,1923, Dept, of State Press Release, February 16, 1927.
14 Letter to the British Ambassador, June 26,1922, Dept, of State Press Release, February 16,1927.
15 The British Ambassador to the Secretary of State, October 13, 1922, Dept, of State Press Release, February 16, 1927.
16 On May 25, 1923, the British Ambassador addressed a note to the Secretary of State protesting against the application of the principle announced in this decision. A reply to this note was sent to the British Ambassador on June 6,1923. MS. Records, Dept, of State. The British position was stated at length by Lord Curzon in the House of Lords on June 28, 1923. 54 Pari. Deb. (Lords), 5th series, cols. 721-729. Protests were likewise sent by the Italian Government, on May 29,1923; by the BelgianGovernment, on May 28, 1923; by the Netherlands Government, on June 1, 1923; by the Norwegian Government, on June 7,1923; by the Portuguese Government, on July 25,1923; by the Swedish Government, on May 31,1923; and by the Danish Government, on June 1, 1923. Dept, of State Press Release, February 16, 1927.
17 The British Charge d’Affaires ad interim to the Acting Secretary of State, September 17, 1923, Dept, of State Press Release, February 16, 1927.
18 Draft Treaty, left with the Secretary of State by the British Charge d'Affaires, December 3, 1923.
19 Ford v. United States, 273 U. S. 593. Such was the view of the Secretary of State, expressed in a letter of March 3,1924, to the Chairman of the House Committee on Foreign Affairs. See Hearings Before the Committee on Foreign Affairs, House of Representatives, oon H. Res. 174,68th Cong., 1st Sess., p. 7. Compare, as to the meaning of “ self-executing,” Edwin D. Dickinson, Are the Liquor Treaties Self-Executing? 20 American Journal of International Law, p. 444.
20 Amendments to Instructions, Customs, Navigation, and Motor-Boat Laws and Duties of Boarding Officers, 1923, No. 3, issued December 11,1924.
21 See, also, The Homestead, 7 F. (2d) 413, 415. Compare United States v. Bowman, 260 U. S. 94.