of water over which, on account of their situation, the United States have felt authorized to assume jurisdiction." Mr. Wharton, Acting Sec. of State, to Sec. of Treasury, May 22, 1891, 182 MS. Dom. Let. 79, citing Hall, Int. Law (3d ed.), 140. See Hall, 4th ed. 163. (2) NAVIGATION. § 134. In a series of resolutions adopted by the Institut de Droit International, at its session in Paris in 1894, on the subject of territorial waters the following general principles with regard to straits were laid down: 1. That straits whose shores belong to different states form part of the territorial waters of the bordering states, which exercise Sovereignty to the middle line. 2. That straits whose shores belong to one state form, so far as concerns approach to the coast, part of the territorial waters of such state, although they may be indispensable as a means of maritime communication between two or more other states. 3. That straits which serve as a passage from one free sea to another can never be closed. From the operation of these rules, straits actually subject to conventions or special usages were expressly reserved. Institut de Droit International, Annuaire, XIII. (1894–95) 330–331. dues. From a date not definitely ascertained, the Danish Government. Danish Sound levied tolls on vessels and cargoes passing through the sound and the two belts which form a passage from the North Sea into the Baltic. This exaction was justified by the Danish Government on the ground of immemorial usage, sanctioned by a long succession of treaties. It was also maintained that the Danish exercise of sovereignty had been beneficial to commerce, in the policing and lighting of the waters. The exclusive right of Denmark was recognized as early as 1368 by the Hanseatic Republics. The Emperor Charles V., by a treaty concluded at Spire, in 1544, agreed that the merchants of the Low Countries frequenting the ports of Denmark should pay the same duties as formerly. By a treaty with Henry VII. of England in 1490 English vessels were forbidden to pass the Great Belt as well as the sound, unless in case of unavoidable necessity, in which case they were to pay the same duties at Wyborg as if they had passed the sound at Elsinore. By a treaty between Denmark and the United Provinces of the Netherlands, concluded at Christianople in 1645, the amount of duties to be levied on the passage of the sound and belts was definitely ascertained, and it was stipulated that goods not specified in the tariff should pay according to mercantile usage and the ancient practice. By a further treaty between the two powers, concluded_at_Copenhagen in 1701, it was stipulated that articles not specified in the tariff of 1645 should be assessed 1 per cent on their value at the place from which they came. The treaties of 1645 and 1701 were referred to in all subsequent treaties, as fixing the standard of rates to be paid by "privileged " nations. Different rates were paid by nations not privileged. A revision of duties was effected by a convention between Denmark and Great Britain in 1841." By Article V. of the treaty of commerce and navigation between the United States and Denmark, concluded April 26, 1826, it was agreed that neither the vessels of the United States nor their cargoes should, when they passed the sound or belts, pay higher or other duties than those paid by the most favored nation. The subject of the dues was brought up for discussion in consequence of the BritishDanish treaty of 1841, which, as the United States maintained, virtually imposed on raw sugar and rice in paddy a duty of 2 per cent to the detriment of the trade of the United States. This question was duly adjusted. The subject of the dues was, however, revived by Mr. Calhoun in 1844, who instructed the diplomatic representative of the United States at Copenhagen to obtain further information concerning it.d 66 Under the public law of nations, it can not be pretended that Denmark has any right to levy duties on vessels passing through the sound from the North Sea to the Baltic. Under that law, the navigation of the two seas connected by this strait is free to all nations; and therefore the navigation of the channel by which they are connected ought also to be free. In the language employed by Mr. Wheaton, even if such strait be bounded on both sides by the territory of the same sovereign, and is at the same time so narrow as to be commanded by cannon-shot from both shores, the exclusive territorial jurisdiction of that sovereign over such strait is controlled by the right of other nations to communicate with the seas thus connected.' But the sound is not bounded on both its shores by Danish territory, nor has it been since the treaty of Roeskild, in 1658, by which all the Danish provinces beyond the sound were ceded to Sweden. So that even this pretext for levying the sound dues has ceased to exist for nearly two centuries. a Wheaton's International Law (Dana's ed.), 264. Mr. Webster, Sec. of State, to Mr. Jackson, min. to Denmark, No. 6, Sept. 1, 1841, H. Ex. Doc. 108, 33 Cong. 1 sess. 2. © Mr. Webster, Sec. of State, to Mr. Bille, Danish min., June 27, 1842, H. Ex. Doc. 108, 33 Cong. 1 sess. 13. d Mr. Calhoun, Sec. of State, to Mr. Irwin, min. to Denmark, No. 12, Sept. 13, 1844, H. Ex. Doc. 108, 33 Cong. 1 sess. 29. "It is true that for several centuries Denmark has continued to levy these dues; and she now claims this as a right, upon immemorial prescription, sanctioned by a long succession of treaties with foreign powers.' But the foundations of this claim were laid in a remote and barbarous age, even before the discovery of America; and the reasons which are now alleged in its support have no application whatever to the United States. They apply exclusively to the nations of Europe. "It may be said that the 5th article of our treaty with Denmark of the 26th April, 1826, gives an indirect sanction to this practice, by providing that neither the vessels of the United States nor their cargoes shall, when they pass the sound or the belts, pay higher or other duties than those which are or may be paid by the most favored nation.' But this article does not recognize the right of Denmark to levy these duties. It is a mere submission to the practice for a period of ten years; and the Government of the United States may now at any moment give the notice required by the treaty, and thus terminate it at the end of one year. 66 These duties are both vexatious and onerous to our navigation. The loss of time and delay of our vessels at Cronberg castle, whilst the duties are assessed and paid, constitute a serious annoyance and injury to our commerce. Besides, the amount of duties is so great as to be a heavy burden upon our trade to the Baltic. Your predecessor, Mr. Irwin, in a despatch under date of the 3d June, 1847, No. 121, to which I refer you, has furnished the department with tabular statements of the amount of these duties exacted from American vessels for a period of sixteen years, from 1828 to 1843, both inclusive; from which it appears that the average for each year would amount to $107,467.71. According to these statements, the average tonnage of our vessels going through the sound during these years was 21,415, and that returning was 21,108 tons. This sum would, therefore, be about equal to an average tonnage duty upon each vessel for passing and repassing the sound of $5 per ton, including both voyages. Besides there are other charges for light-money, fees, etc. This large tax is paid by vessels of the United States for liberty to pass through a strait between two seas, which, by the law of nature and of nations, is free and open to all mankind! The United States have thus long submitted to the exaction from deference and respect for Denmark; but it can not be expected, great as is our regard for that, ancient and respectable power, that we shall submit to it much longer. "It is probable that two years might elapse before the existing convention could be terminated, as an act must first pass Congress to enable the President to give the required notice, after which a year must expire before it could be rendered effectual. During the whole period our vessels would be subject to the sound dues under the pres ent convention. For this reason, if you should find it indispensable to success, but not otherwise, you may stipulate to pay the Government of Denmark a sum not exceeding $250,000; but, in that event, the abrogation of the sound and belt dues must be made perpetual, and must be excluded, in express terms, from any notice which may hereafter be given by either party to terminate the treaty." Mr. Buchanan, Sec. of State, to Mr. Flenniken, min. to Denmark, No. 7, In 1853 the Government of Denmark was advised of the purpose of the United States to press the subject of the sound dues to a conclusion. The dues, it was declared, affected the United States more sensibly than any European nation, and in respect of their chief staple, raw cotton, operated as a discrimination against American commerce. Vague intimations, it was observed, had occasionally been given at Copenhagen that the sound tolls were guaranteed to Denmark by the Congress of Vienna, as an indemnity for the surrender of Norway to Sweden. "Admitting the truth of this, and that every European government was irrevocably bound by such proceeding, the United States," it was declared, "were not a party to it in any way, and no obligation is imposed upon them to respect the arrangement. Nothing has been more remote from the purpose of our Government, from the day on which it was ushered into existence, than that of surrendering to any power its right of using the ocean as the highway of commerce. This right it claims, and will use all proper means to secure to itself the full enjoyment of in every quarter of the globe." a In his annual message of 1854 President Pierce stated that he deemed it expedient to notify the Government of Denmark of the intention of the United States to terminate the treaty of 1826, in accordance with its terms. By a resolution of the Senate, passed March 3, 1855, the President was authorized to give such notice, and it was accordingly given April 14, 1855, The United States, though doubtful as to the course which various European powers might pursue, counted upon the support of Prussia. Of this support, however, the United States had received no assurance, its action being inspired by the determination no longer to submit to the collection of the tolls. But the course of the United States a Mr. Marcy, Sec of State, to Mr. Bedinger, min. to Denmark, July 18, 1853, H. Ex. Doc. 108, 33 Cong. 1 sess. 53, 56. President Pierce, annual message, Dec. 31, 1855, H. Ex. Doc. 1, 34 Cong. 1 sess. 9; Cong. Globe, 34 Cong. 1 sess., pt. 2 (1855–56), 826; Schuyler, Am. Diplomacy, 314. Mr. Marcy, Sec. of State, to Mr. Vroom, min. to Prussia, Sept. 20, 1855, MS. Inst. Prussia, XIV. 226. was generally sustained by the sentiment of the commercial world; and in October, 1855, Denmark invited the interested governments, including the United States, to take part in a conference in Europe for the purpose of doing away with the collection of the dues, in connection with a plan for their capitalization. This invitation the United States declined, for reasons stated by President Pierce in his annual message of 1855. One of these reasons was that Denmark did not offer to submit to the conference the question of her right to levy the tolls. The second was that, if the conference were allowed "to take cognizance of that particular question, still it would not be competent to deal with the great international principle involved, which affects the right in other cases of navigation and commercial freedom, as that of access to the Baltic. Above all," continued President Pierce, "by the express terms of the proposition it is contemplated that the consideration of the sound dues shall be commingled with and made subordinate to a matter wholly extraneous-the balance of power among the governments of Europe." President Pierce added, however, that he had expressed to Denmark a willingness on the part of the United States to share liberally with other powers in compensating her for any advantages which commerce should thereafter derive from expenditures made by her for the improvement and safety of the navigation of the sound or belts. "By a convention of April 11, 1857, between the United States and Denmark, the navigation of the sound and belts is declared free to American vessels; and Denmark stipulates that these passages shall be lighted and buoyed as heretofore, and to make such improvements in them as circumstances may require, without any charges to American vessels and their cargoes, and to maintain the present establishment of pilots, it being optional for American masters to employ them at reasonable rates fixed by the Danish Government or to navigate their own vessels. In consideration of these stipulations the United States agreed to pay to Denmark 717,829 rix-dollars, or $393,011 in the currency of the United States. Any other privileges granted by Denmark to any other nation at the sound and belts, or on her coasts and in her harbors, with reference to the transit by land, through Danish territory, of their merchandise, shall be extended to and enjoyed by citizens of the United States, their vessels and property. The convention of April 26, 1826, to become again binding, except as regards the article referring to the sound dues. United States Statutes at Large, vol. xi, p. 719." Lawrence's Wheaton (1863), 335. See, also, Benton's Thirty Years' The subject of the sound dues is discussed in Woolsey's Int. Law, § 61; |