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guarantee the efficient police and the development of the political, commercial, and fiscal interests of the bordering state; (3) the enjoyment of the possession of territorial waters serves to sustain the existence of the population on the coast.

Perels, Seerecht, §§ 24, 37, 74, 76–88.

See, also, Latour, La Mer Territoriale au Point de Vue Théorique et Pratique, Paris, 1889. This author defines the territorial sea as the sea adjacent to the coasts, over which the bordering nation may from the shore employ its armed forces, and thus exercise the power which is necessary to defend its territory and coasts, assure the safety of its inhabitants, and guard its fiscal and commercial interests. In following out his discussion he maintains a distinction between the exercise by a nation of its protective power and the claim of exclusive possession.

See, specially, Territorial Waters, Questionnaire, Replies and Report, in the 15th annual report of the Association for the Reform and Codification of the Law of Nations, Genoa, 1892.

"The principle that the littoral sea forms part of the territory is justified by the exigencies of the conservation and safety of the state, from the military, sanitary, and fiscal point of view, as well as from the point of view of industrial interests, especially that of the fisheries.

"How far does the littoral sea extend? It seems reasonable, in virtue of its object and its accessorial quality, to say that it extends as far from the shore as the territorial power can be defended and maintained, that is to say, to the range of cannon shot. . . .

"Some recent conventional, legislative, or judicial acts have replaced the range of cannon, which varies with the progress of armaments and weapons, by a fixed distance of a marine league, that is to say three marine miles or a twentieth of a degree of latitude," which was formerly the range of cannon shot. "The rational principle of the range of cannon was formulated by Bynkershoek, in chapter 2 of his dissertation de domino maris (1703): Generaliter dicendum esset, potestatem terrae finiri ubi finitur armorum vis.'"

Rivier, Droit des Gens, I. 145, 146, 147. See, also, Latour, La Mer Territoriale au Point de Vue Théorique et Pratique, 1889; Barclay, Annuaire, Institut de Droit Int. XIII. 125-162; Plocque, Législation des Eaux et de la Navigation, 1870-1875; Pradier-Fodéré, Droit Int. II. § 617; Perels, Manuel de Droit Mar. Int. (trad. Arendt), § 5; A. Geouffre de Lapradelle, Le Droit de l'État sur la Mer Territoriale, 1898 (extract from La Revue Générale de Droit Int. Public); Phillimore (3rd ed.), I. 274; Wheaton (Dana's ed.), § 189; Creasey, First Platform of International Law, 233; Walker, Science of Int. Law, 171.

Chancellor Kent suggested that, considering the long line of American coasts, the United States might claim control of the waters included within lines stretching from distant headlands, as, for instance,

from Cape Ann to Cape Cod, from Nantucket to Montauk Point, from
Montauk Point to the capes of Delaware, and from the South Cape
of Florida to the Mississippi. (Comm. I. **29, 30.)

Woolsey declared that such a claim would be "out of character for a
nation that has ever asserted the freedom of doubtful waters, as well
as contrary to the spirit of more recent times." (Int. Law, § 60.)
See, also, Martens, Précis, I. 336; Bluntschli, § 302; Heffter, § 75; Klüber,
§ 130; Ortolan, I. 153; Schialtarella, Del Territoris, 8; Henry, Adm.
Jurisdiction, § 89; Twiss, Oregon Territory, 111, citing Vattel, Book
1, § 205; Com. r. Manchester, 152 Mass. 230, 139 U. S. 240; In re
Humboldt Lumber Mfrs.' Assoc., 60 Fed. Rep. 428; Montgomery .
Henry (1780), 1 Dallas, 49.

The coastal waters, harbors, and other navigable waters of the island of Porto Rico, are waters of the United States within the meaning of sec. 10 of the river and harbor act of 1899, 30 Stat. 1151, prohibiting unauthorized obstructions to navigation in any of the waters of the United States and vesting in the Secretary of War a certain control of wharves and similar structures in ports and other waters of the United States.

Knox, At.-Gen., Oct. 17, 1901, 23 Op. 551, 555.

The rule of territorial waters is inapplicable to ships on the high seas; hence a ship can not draw around her and appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach.

The Marianna Flora, 11 Wheat. 1.

It is laid down that foreign ships have a right of innocent passage through the marginal sea.

Hall, Int. Law (4th ed.), 212; Rivier, Principes du Droit des Gens, I. 152.
As to what constitute the coastal waters of the United States, in the sense
of the rules of navigation, see the Delaware (1896), 161 U. S. 459.
As to maritime ceremonial, see Calvo, I. §§ 296–345; Heffter, § 191-197;
Klüber, Droit des Gens Moderne de l'Europe, § 89-122.

The United States, in 1897, while complaining of the action of the captain
of the Spanish cruiser Reina Mercedes, in firing upon the American
steamer Valencia, near Guantanamo, Cuba, in order to make her show
her flag, said: "I am prepared to admit, in all frankness, that dur-
ing the continuance of a civil war such as is now flagrant in the
island of Cuba, it would be extremely convenient, and perhaps a pru-
dent precaution, for American ships legitimately resorting to Cuban
waters to show their flag when sighting a Spanish cruiser within the
3-mile limit, even if a formal salute be not called for by the ordinary
code of maritime ceremonial;" and it was stated that advice to this
effect would be given. (Mr. Sherman, Sec. of State, to Mr. Dupuy de
Lôme, Span. min., June 21, 1897, For. Rel. 1897, 505.)

As to the case of the Alliança, see For. Rel. 1895, II. 1177-1185; and the annual message of President Cleveland of Dec. 2, 1895, For. Rel. 1895, I. xxxiii.

In a series of resolutions adopted by the Institut de Droit International, at Paris, in 1894, it was laid down (art. 5) that all ships without distinction have the right of innocent passage through the territorial sea, subject to the right of belligerents to regulate and for purposes of defense even to bar such passage, and subject also to the right of neutrals to regulate the passage of ships of war of all nationalities.

As to jurisdiction over passing vessels, the following resolutions were adopted:

"ART. 6. Crimes and offences, committed on foreign ships passing through territorial waters by persons on board such ships against persons or things also on board, are, as such, outside the jurisdiction of the bordering state, unless they involve a violation of the rights or interests of the bordering state, or of its inhabitants who are neither members of the crew or passengers.

"ART. 7. Ships traversing territorial waters must conform to special regulations of the bordering state in the interest or for the security of navigation and maritime police.

"ART. 8. Ships of all nationalities, by the fact of being in territorial waters, unless only passing through, are subject to the jurisdiction of the bordering state.

"The bordering state may continue on the high seas a pursuit begun in territorial waters, to arrest and try a ship which has committed a violation of law within the limits of those waters. In case of capture on the high seas, the fact shall be made known without delay to the state whose flag she bears. The pursuit is interrupted the moment the ship enters the territorial waters of her own or of a third country. The right of pursuit ceases when the vessel enters a port of her own or of a third power.

"ART. 9. The particular situation of ships of war and of those assimilated to them is reserved."

Institut de Droit International, Annuaire (1894–95), XIII. 329.

By the common law, title to the soil under tide waters, below highwater mark, unless private rights in it have been acquired by grant or prescription, is in the king, subject to the public rights of navigation and fishing. Upon the American revolution, the title to and dominion over tide waters and the lands under them vested in the several States, though certain rights were afterwards surrendered by the Constitution to the United States. The United States, on acquiring territory, whether by cession from one of the States or by treaty with a foreign country, or by discovery and settlement, takes the title and the dominion of lands below high-water mark for the benefit of the whole people, and in trust for the future States to be created out of the territory; although, while holding the country as

territory, it possesses all the powers both of national and municipal government, and may grant, for appropriate purposes, titles to or rights in the soil below high-water mark. Congress, however, has not undertaken by general laws to dispose of such lands in the territories, but, unless in case of some international duty or public exigency, has left such waters and lands to the control of the States, respectively, when admitted into the Union.. Hence it was held that a donation land claim, bounded by the Columbia River, acquired under the act of Congress of Sept. 27, 1850, c. 76, while Oregon was a Territory, passed no title to lands below high-water mark, as against a subsequent grant from the State of Oregon, pursuant to its statutes.

Shively r. Bowlby (1894), 152 U. S. 1. See also Hardin r. Jordan (1891). 140 U. S. 371; Mitchell v. Smale (1891), id. 406; Baer r. Morau Brothers Co. (1894), 153 U. S. 287; Lowndes . Huntington (1894), 153 U. S. 1; St. Louis v. Rutz (1891), 138 U. S. 226, 250.

(2) POSITION OF THE UNITED STATES.

$ 145.

"The President of the United States, thinking that, before it shall be finally decided to what distance from our seashores the territorial protection of the United States shall be exercised, it will be proper to enter into friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts, and relying that convenient occasions may be taken for these hereafter, finds it necessary in the meantime to fix provisionally on some distance for the present government of these questions. You are sensible that very different opinions and claims have been heretofore advanced on this subject. The greatest distance to which any respectable assent among nations has been at any time 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 at one sea league. Some intermediate distances have also been insisted on, and that of three sea leagues has some authority in its favor. The character of our coast, remarkable in considerable parts of it for admitting no vessels of size to pass near the shores, would entitle us, in reason, to as broad a margin of protected navigation as any nation whatever. Reserving, however, the ultimate extent of this for future deliberation, the President gives instructions to the officers acting under his authority to consider those heretofore given them as restrained for the present to the distance of one sea league or three geographical miles from the seashores. This distance can admit of no opposition, as it is recognized by treaties between some of the

powers with whom we are connected in commerce and navigation, and is as little, or less, than is claimed by any of them on their own

coasts.

"For the jurisdiction of the rivers and bays of the United States, the laws of the several States are understood to have made provision, and they are, moreover, as being landlocked, within the body of the United States."

Mr. Jefferson, Sec. of State, to Mr. Hammond, Brit. min., Nov. 8, 1793, Brit. Counter Case and Papers, Geneva Arbitration, American reprint, 553.

A similar note was sent on the same day to M. Genet, the French min. ister. (Am. State Papers, For. Rel. I. 183; Wait's Am. State Papers, I. 195.)

Corresponding instructions were given to the district attorneys, Nov. 10, 1793. (MS. Dom. Let.)

See, also, circular of Mr. Hamilton, Secretary of the Treasury, to collectors of customs, Feb. 10, 1794, Brit. Counter Case and Papers, Geneva Arbitration, Am. reprint, 568.

"The President | Mr. Jefferson, in an informal conversation] men·tioned a late act of hostility committed by a French privateer near Charleston, S. C., and said we ought to assume, as a principle, that the neutrality of our territory should extend to the Gulf Stream, which was a natural boundary, and within which we ought not to suffor any hostility to be committed. Mr. Gaillard observed that on a former occasion in Mr. Jefferson's correspondence with Genet, and by an act of Congress at that period, we had seemed only to claim the usual distance of three miles from the coast; but the President replied that he had then assumed that principle because Genet, by his intemperance, forced us to fix on some point, and we were not then prepared to assert the claim of jurisdiction to the extent we are in reason entitled to; but he had taken care to reserve this subject for further consideration with a view to this same doctrine for which he now contends."

Memoirs of J. Q. Adams, I. 375-376.

"As to the jurisdiction exercised by the United States over the sea contiguous to its shores, all nations claim and exercise such a jurisdiction, and all writers admit this claim to be well founded; and they have differed in opinion only as to the distance to which it may extend. Let us see whether France has claimed a greater or less extent of dominion over the sea than the United Sates. Valin, the King's advocate at Rochelle, in his new Commentary on the Marine Laws of France, published first in 1761, and again by approbation in 1776, (Book V., title 1.) after mentioning the opinions of many different writers on public law on this subject, says: 'As far as the distance of two leagues the sea is the dominion of the sovereign of the neighboring coast; and

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