5. INTERIOR SEAS AND LAKES. § 135. Interior seas and lakes form part of the territory in the same sense as does the land. An interior sea is one that has no direct communication with the ocean. If it is entirely surrounded by the lands of a single state, such state has over it the same exclusive and absolute right as it has over any part of its territory, and may forbid or permit. access to or use of it. The same principle applies to a lake surrounded on every side by the lands of the state. The fact that the water of the sea is salt and that of the lake fresh, is a matter of indifference from the legal point of view. Interior seas are in reality, in spite of their names, merely salt lakes. Interior seas and lakes, enclosed by the lands of two or more states, belong to them in proportionate parts, unless it is otherwise provided. The water itself, considered independently of the soil, is common. There is no question, in respect of interior seas, either of freedom of the sea or of marginal sea, since these ideas exist only in respect of the ocean. The best example of an interior sea is the Dead Sea. As examples of interior lakes we may cite Lake Michigan, entirely American, though it connects with Lake Huron; Lakes Winnipeg and Manitoba, which are English; Lakes Ladoga and Onéga, which are Russian; Lakes Wenern and Wettern, Swedish; Lake Balaton, Hungarian; Lakes Zurich, Quatre Cantons, Neuchâtel, Morat, and Bienne are entirely Swiss. Lakes Thoune and Brienz are wholly Bernese. The Caspian Sea is surrounded by Russia and Persia, but, by virtue of the treaties of Gulistan (1813) and Tourkmantschaï (1828), it is subject practically to Russian control; Russian authorities administer it, and only Russia has the right to keep ships of war in it. The Sea of Aral is entirely Russian. Lake Leman belongs to Switzerland (Vaud, Geneva, and Valais) and to France in divided parts. Lake Constance belongs to Germany (Baden, Bavaria, Wurtemburg), to Switzerland (Thurgovia, St. Gall), and to Austria. Opinions are divided as to Lake Obersee, but it is necessary to pronounce in favor of division; the principle of the meridian line is established by the treaties of 1554 and 1854. Rivir, Principes du Droit des Gens, I. 143–145, 230. See, also, Wharton, Com. on Law, § 192; Woolsey, § 61; Holtzendorff, 6. THE GREAT LAKES. (1) JURISDICTION. § 136. R. was indicted in the district court of the United States for the eastern district of Michigan for an assault with a dangerous weapon, committed on the American steamer Alaska, while she was in the Detroit River, out of the jurisdiction of any particular State and within the limits of the Dominion of Canada. The indictment was found under section 5346 of the Revised Statutes of the United States, by which the offense in question was made punishable when committed on an American vessel " upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty jurisdiction of the United States and out of the jurisdiction of any particular State." The defendant filed a plea to the jurisdiction; the United States demurred, and on this demurrer the judges of the circuit court certified a division of opinion on the question whether the courts of the United States had jurisdiction under the section in question. Held, that the inclosed waters of the Great Lakes were "high seas" within the meaning of the statute, and that the Detroit River, as a connecting stream, fell within the scope of the legislative intention. The court in the course of its opinion said: "The Great Lakes possess every essential characteristic of seas. They are of large extent in length and breadth; they are navigable the whole distance in either direction by the largest vessels known to commerce; objects are not distinguishable from the opposite shores; they separate, in many instances, States, and in some instances constitute the boundary between independent nations; and their waters, after passing long distances, debouch into the ocean. The fact that their waters are fresh and not subject to the tides does not affect their essential character as seas. Many seas are tideless, and the waters of some are saline only in a very slight degree." United States v. Rodgers (1893), 150 U. S. 249, 256, 14 S. Ct. 109, opinion See, also, United States v. Rogers, 46 Fed. Rep. 1; Inman v. Lindrup, a For the international boundary in the Great Lakes, see Moore, International Arbitrations, vol. 1, chapters v. and vi. ; and vol. 6 (maps). "It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several States, belong to the respective States in which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. This doctrine has been often announced by this court, and is not questioned by counsel of any of the parties. Pollard's Lessee v. Hagan, 3 How. 212; Weber v. Harbor Commissioners, 18 Wall. 57. "The same doctrine is in this country held to be applicable to lands covered by fresh water in the Great Lakes over which is conducted an extended commerce with different States and foreign nations. These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the State of lands covered by tide waters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these lakes. At one time the existence of tide waters was deemed essential in determining the admiralty jurisdiction of courts in England. That doctrine is now repudiated in this country as wholly inapplicable to our condition. In England the ebb and flow of the tide constitute the legal test of the navigability of waters. There no waters are navigable in fact, at least to any great extent, which are not subject to the tide. . . "But in this country the case is different. Some of our rivers are navigable for great distances above the flow of the tide; indeed, for hundreds of miles, by the largest vessels used in commerce. "The Great Lakes are not in any appreciable respect affected by the tide, and yet on their waters, as said above, a large commerce is carried on, exceeding in many instances the entire commerce of States on the borders of the sea. When the reason of the limitation of admiralty jurisdiction in England was found inapplicable to the condition of navigable waters in this country, the limitation and all its incidents were discarded. So also, by the common law, the doctrine of the dominion over and ownership by the Crown of lands within the realm under tide waters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable, tide waters and navigable waters, as already said, being used as synonymous terms in England. The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the Crown, which could alone exercise such dominion over the waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment, a reason as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies, which obtains at the common law as to the dominion and Sovereignty over and ownership of lands under tide waters on the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations." Illinois Central Railroad v. Illinois (1892), 146 U. S. 387, 435-437. See also, Cushing, At.-Gen. (1853), 6 Op. 172; Mobile Transportation Co. v. Mobile (1903), 187 U. S. 479, 482, 491. Title to and dominion over lands beneath the navigable waters of the Great Lakes are in the States, respectively, within whose boundaries such lands are situated, each State holding the fee thereof in trust for the people for purposes of navigation and fishing. People v. Kirk (1896), 162 Ill. 138, 45 N. E. 830; Bodi v. Winous Point An owner of land on Lake Michigan is entitled to accretions formed by 415.) (2) FISHING RIGHTS. § 137. "This Department has received two letters from you, dated, respectively, April 19th and 30th, in relation to the fishing rights of citizens of the United States and of Canada in the open waters of the Great Lakes. The question you present, viz, whether citizens of the United States have the right to fish in the waters of the Great Lakes on the Canadian side of the boundary line as fixed by treaty, but at a distance of more than three miles from the Canadian shore, has been carefully considered by the Department. "The conclusion is reached that the Great Lakes, whose waters separate the United States from the British Dominion of Canada are wholly territorial, and that the territorial jurisdiction of the respective sovereignties extends and is exercisable to the boundary which, by treaty, has been established between them as running through the middle of said lakes. This Government can neither claim nor admit that in the centre of these lakes, on either side of the treaty boundary and up to a distance of one marine league from shore, there can be an area of high seas' in the determination of a question such as is presented. 6 "It is true that by a recent decision of the Supreme Court (two of the justices vigorously dissenting) it has been held that the great Lakes are high seas,' within the meaning of a statute of the United States giving the Federal courts jurisdiction over certain crimes committed upon American vessels on the high seas and out of the jurisdiction of any particular State.' The particular State' so referred to has long been settled to mean one of the States of the Union and not a foreign country. 6 "In the case where this opinion was delivered the crime over which jurisdiction was assumed under the crimes act was committed on a vessel in waters conceded by all the court to be within the territorial limits of Canada, and it has several times been held by the United States Supreme Court that the waters of the ocean within three miles of the coast of a foreign country, and hence undoubtedly within its jurisdiction, are nevertheless high seas within the meaning of our Federal crimes act. "Conceding, then, that the Great Lakes (including Lake Michigan, which lies wholly within the boundaries of the United States) are high seas' within the meaning of our Federal crimes act, it by no means follows that those waters are 'high seas' as regards territorial rights of the sovereignties which own their shores. "At the time when the United States achieved independence the Great Lakes belonged exclusively to Great Britain. No other nation had any rights in or over them. By the treaty of peace of 1783 the lakes were divided between the contracting parties and the boundary fixed as running through the middle of the lakes and of the waterways connecting them. The United States and Great Britain thus shared thenceforth, to the exclusion of any claim whatsoever of a third nation, the territorial sovereignty over the lake waters which had theretofore been wholly British, and it was competent for the two countries to treat with each other in respect to their relative rights in those lakes without encroaching on any possible right of another country. "This was in fact done in the treaty of Washington of 1871, whereby Lake Michigan, which is wholly within the exclusive territorial domain of the United States, was open to navigation by British subjects, in consideration (as appears from the statements of the negotiating commissioners, Foreign Relations, 1871, p. 513) for increased privileges in respect to the St. Lawrence River and the Canadian canals offered by Great Britain, H. Doc. 551-43 |