ory of man runneth not to the contrary.' They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilized nations."

If this is true, the established rules of international law are as binding upon nations as are the Ten Commandments upon individuals.

I have at some length developed this idea in order to strengthen my assertions that the United States cannot afford to become a law-breaker or a dishonest litigant. No more can it afford to become the champion of an exploded claim to sovereignty over the deep sea.

If there is one principle of the law of nations better settled than all others, it is that the jurisdiction and sovereignty of a nation extends to the distance of one league, or three marine miles, from the shore. "The greatest distance," says Jefferson, "to which any respectable assent among nations has at any time been given has been the extent of the human sight, estimated at upwards of twenty miles; and the smallest distance, I believe, claimed by any nation whatever is the utmost range of a cannon-ball, usually stated as one sea-league."

In 1872, Secretary Seward, in a letter to Mr. Tassara, stated the rule in the following language: "A third principle bearing on the subject is also well established, namely, that this exclusive sovereignty of a nation, thus abridging the liberties of the seas, extends no further than the power of the nation to maintain it by force, stationed on the coasts, extends. This principle is tersely expressed in the maxim, Terræ dominium finitur ubi finitur armorum vis.'

Chancellor Kent, who was inclined to admit a more extensive jurisdiction than modern practice has approved, says, "As far as a state can protect itself, so far does its jurisdiction extend."

Lawrence thus states the rule: "The waters adjacent to the coasts of a coun

try are deemed within its jurisdictional limits only because they can be commanded from the shore."

There are, however, a few special cases where a limited authority extends beyond this limit. Halleck says: "The maritime territory of every state extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to the same state. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other state. The general usage of nations superadds to this extent of territory an exclusive territorial jurisdiction over the seas for one marine league. . . . And even beyond this limit, states may exercise a qualified jurisdiction for fiscal and defensive purposes; that is, for the execution of their revenue laws, and to prevent hovering on their coasts."

Neither of these exceptions covers the case of the seizures of the sealing vessels complained of by Great Britain.

The deep sea beyond this limit is not subject to the sovereignty of any nation, but is free to all. It is incapable of being held as property. There was a time when the maritime nations assumed and exercised the rights of ownership over the waters, but these have been gradually relinquished, until the sovereignty now admitted over portions of the sea is but a decayed and contracted remnant of the authority once exercised. The Roman lawyers called the seas common property by nature, and they were so considered in the earliest times of which history keeps the record. They were free in that they were universally open to depredation. The early Grecian seas were the roving-places of pirates. Navigation was free in waters over which nobody claimed control. But in time the protection of commerce required the control and possession of the seas, and by the middle of the sixteenth century they were generally parceled out

among the maritime nations. Thus,

modern international law commenced with a system of mare clausum. The Portuguese assumed to interdict navigation in the seas of Guinea and the East Indies. The Dutch, as usual, in the language of Canning, "giving too little and asking too much," wished to close the passage around the Cape of Good Hope. The Spanish claimed exclusive jurisdiction over the Pacific Ocean. Great Britain modestly claimed property in all seas which washed her coasts up to the shores of the neighboring states and north to the Arctic Ocean. Queen Elizabeth seized some Hanseatic vessels lying at anchor off Lisbon harbor, because they had sailed through the North Sea without her permission. A ship that did not "strike or veil its bonnet at the commandment of the lieutenant of the king" received a cannon-shot. Philip II. of Spain, when coming to England to wed Queen Mary, was fired upon by an English ship for flying his flag in the narrow

seas.

Later, the claim was restricted to an exclusive right of fishing and requiring the homage of a salute from all foreign vessels.

The enlightened founders of modern international law gave their adherence to a system of freedom. In 1609, Grotius published his immortal work on the Mare Liberum, devoted to proving the freedom of the seas in general. Charles I. of England was so incensed at this work that he instructed his ambassador to complain to the States-General of the Dutch Provinces of the audacity of the jurist, and to demand that he be punished.

In 1635, the great English lawyer and statesman, Seldon, attempted to answer Grotius. In his Mare Clausum, Seldon attempted to maintain two positions: (1) that the sea might be property; (2) that the seas which washed the shores of Great Britain were her property. But the spirit of the age was opposed to him, and the doctrine of the

freedom of the seas was finally established.

Great Britain gradually abandoned her extravagant pretensions, until now little remains but the marine belt and a claim to the "King's Chamber."

"At this day," says Ortolan, "the discussions upon the domain and empire of the seas are relegated to the province of pure history. There is no writer, there is no government, which dares, at our day, to revive these pretensions of another epoch."

Certain large bodies of water entirely within the territory of a country, with a moderate width of entrance, are still admitted to be controlled by the country they indent; but these are well defined, and title to them has been acquired and perfected by long occupation and universal acquiescence. In all such cases, the necessity and reasonableness are admitted. But a mere desire to benefit by the products of the waters creates no such case of necessity or reasonableness.

If the sea is incapable of dominion, it matters not that Russia was the first civilized power to hold the shores of Behring Sea. Rights incapable of being acquired cannot be transferred. If Behring Sea had been, what it was not, a gulf entirely inclosed by Russian territory, with an entrance which could have been defended from the shores, its status as a closed sea could possibly have been transferred to the United States, although its shores, after such transfer, would be held by different nations. But, on the north, Behring Sea is connected with the Arctic Ocean by Behring Strait, which is thirty-six miles wide, and through which commerce has been carried on by the United States for half a century. On the south, there are innumerable passes through the Aleutian Islands almost equal in width to Behring Strait. Between these Islands and the Commander group, on the shores of Asia, there is a gap of water where half the navies of the world might ride abreast,

and be out of sight of land and of each other.

That the seal fisheries are in danger of destruction by pirates and marauders, reckless of the future, is no justification for the revival of the claim of mare clausum. That it is the duty of the government to do all in its power to prevent the indiscriminate destruction of the fur seals is admitted; but this should be done by international arrangement, as proposed by Mr. Bayard. The proposition seems to have met with the general approval of the nations most interested, and it is to be hoped that it will be persisted in until Behring Sea is patrolled by a police of the nations.

In order to justify the seizure of the Black Diamond, the United States government must advocate rules of international law inconsistent with those urged in connection with the northeastern fishery dispute, and opposed to the position assumed by it in every case which has arisen in the last hundred years. On the east shore it is justly and honestly urging a liberal and enlightened policy in consonance with the spirit of the age. It cannot afford to support an illiberal policy of restriction on the northwest shore.

Our difficulties with Canada should be treated as a whole, and in a liberal and enlightened spirit. The commercial and personal relations between the two countries are too intimate, their present and future interests are too closely entwined, to admit of a narrow and intolerant policy. Questions of commercial policy and interest should not be permitted to blind a people to those principles of universal right and justice which are acquiesced in by all civilized nations, simply because they are right. Commercial relations, tariffs, and reciprocity treaties are for statesmen, to be disposed

of as the present interests of the whole country dictate. Questions of international law should be for jurists and courts, and selfish interests should not enter into their decision. The failure to appreciate this distinction is one of the causes of these dangerous contentions growing out of the conflicting views of fishery rights. If the questions of law were once solved, negotiations could proceed with some prospect of a reasonably satisfactory issue. But so long as the negotiators start with directly contrary views of the law of the case, there is no chance of an issue which one party will not consider an absolute surrender. It would be an easy matter for the United States and Great Britain to agree upon a case in which the issues of law involved in the northeastern and northwestern fishery disputes could be stated. It is reasonable to suppose that the nations which could submit to arbitration such burning questions as the Alabama. claims and the fishery trouble in 1871 could agree to submit these purely legal questions to an international tribunal, composed of three or five of the great judges of the world; for instance, the Chief Justice of the United States, the Lord Chief Justice of England, and a third, equally eminent and learned. The decision of such a tribunal, pronounced after a full hearing, would be received with respect and acquiescence. With these questions settled, there would be something tangible, some point of departure for negotiation. It is not to the credit of the two great English-speaking nations of the world that these irritating disputes have extended over almost the entire history of the United States. Many questions of greater and less importance have been disposed of, but these fishery disputes still remain as fruitful sources of irritation and bitterness.

Charles B. Elliott.

ABOUT a hundred years after the framing of the American Constitution, an ancient Asiatic nation, one that had little in common with Western peoples, and was undisturbed by the rapid strides which Western civilization had made in the sphere of constitutionalism, suddenly awoke from her political lethargy, and promulgated a constitution admirably careful in form and unique in its distribution of governmental powers. That nation is the Empire of Japan.

It seems strange that Japan, a country that can trace her line of emperors to a period beyond the Christian era, should rise to the occasion as she did in February, 1889; but if we follow closely the history of Japan during the last thirty-seven years, we note the insight of Japanese intellect striving to work out her political problem. Japan, after opening her ports to foreigners, had been for some time endeavoring to give her people their share in the management of national affairs and to establish a constitutional form of government; so she took careful note of the examples which Europe and America afforded her, of the merits and demerits of other systems of government, and finally brought about a most excellent result in the solution of constitutional questions. No force of arms, no political or national catastrophe, was brought to bear upon either monarch or subject; for the common sense of both discerned that a change

was necessary.

The Japanese Constitution is divided into seven chapters, comprehending seventy-six articles.

Chapter I. relates to the Emperor; Chapter II. to the Rights and Duties of the Subjects; Chapter III. to the Imperial Parliament; Chapter IV. to the Minister of State and Privy Council; Chapter V. to the Judicature; Chapter

VI. to the Finance; Chapter VII. to the Supplementary Rules.

The general principles of the Constitution are very similar to the unwritten laws of the English Constitution; but on many points Germany, Austria, America, France, and other countries have been referred to. To a European or American reader, some points may seem quite an innovation to the constitutional jurisprudence, but they are certainly the result of a careful study of the constitutions of other countries, and might be considered, to a certain extent, an improvement on the theory of constitutionalism.

The primary idea embodied in the Constitution is that the document should contain and enumerate only the fundamental principles of constitutional government, and disregard all minor details. For instance, the three great divisions, Legislative, Executive, and Judicial, are marked out, in order that the governing as well as the governed may understand the relation of the three powers; but the various points under these heads are not touched upon. No attention is paid to the details of government machinery that must change with the progress of national affairs, and in this way a very considerable improvement on the form of constitution is effected. A diligent study of political and constitutional philosophy has convinced the Japanese jurist that the rigid Constitution of America, and not the flexible Constitution of England, will be the most suitable form in Japan, for Japan has her governmental principles, fundamental and essential; and since these will hold good for all ages, it is well that they should remain by themselves, separate and immovable. Were Japan to frame her Constitution with a mixture of principles and details like that of Great Britain, it would be

impossible for her to retain a rigid Constitution.

Chapter I. relates to the imperial sovereignty. The present Emperor of Japan is the direct descendant of the first Emperor Gimmou, who, after having conquered all the tribes, became the sole ruler of the nation in the year 660 B. C. During a period of more than twenty-five centuries, one unbroken line of emperors has succeeded to the imperial power, a unique exception in the history of monarchies. This fact was strongly emphasized in Article 1 by stating that "the Empire of Japan shall be reigned over and governed by a line of emperors unbroken for ages eternal."

Under this chapter the royal prerogatives are summarized as concisely as possible in a few articles, yet conceding all the ancient rights and powers of the Emperor which had been so long in the hands of the Japanese sovereign. In regard to the royal prerogative, European countries have enumerated in their constitutions all the rights and powers of the sovereign so fully that they have greatly handicapped the royal will; but the Emperor of Japan, so long as he does not interfere with the Constitution, can exercise his ancient right to the full. According to the Constitution, the three powers of state, the Legislative, Executive, and Judicial, are invested in the person of the Emperor, who is the life and centre of the whole political mechanism. Japan, by the method she pursues in connection with her sovereign, gets rid of the idea once prevalent in the eighteenth century, that legislative, executive, and judicial powers should be independent of one another.

Chapter II. deals with the rights and duties of the Japanese subject in conformity with European systems.

When feudalism held sway in Japan, the people were divided into four distinct classes: the military, the farming, the artisan, and the merchant. Civil and political rights were enjoyed only

by the military, but at the imperial restoration, in 1868, class distinction in politics was abolished; and by the new Constitution civil preference has likewise been put aside. Each Japanese subject, therefore, in his political and civil rights, is now on an equal footing with his neighbor. Moreover, he has acquired the freedom of speech and writing together with that of publication, and the privilege of holding and attending public meetings and forming associations; liberty to choose a place of residence; and, finally, he is granted the freedom of religious belief and worship. Nor can a Japanese be arrested, detained, tried, or punished except according to law; nor can a dwelling be entered or searched without a magistrate's warrant. The right of property and the privacy of correspondence are considered inviolable except by a provision of law. Each subject has an equal eligibility for civil or military appointments, and for any other public offices; and no preference is given to family or order. The right of petition, which in an early period of their constitutionalism was so much sought after by the Anglo-Saxons, and won at last after fierce opposition, was granted to the Japanese subjects as a free gift of the Emperor.

Freedom of religious belief, which during the early period of Japanese feudalism did not exist, is one of the best fruits of modern civilization. However graciously these freedoms be granted to his subjects, it is the will of the Emperor that these freedoms should not be carried to such an extent as is insisted upon by modern socialists, but should be exercised within due restrictions of law; therefore, the Constitution has carefully provided that these shall be bounded by the law.

In Chapter III. the organization of Parliament is divided into, first, the House of Peers, and, second, the House of Representatives. The organization of the two Houses is not mentioned in the