that whether there be soundings there or not. It is proper to observe this method in favor of states whose coasts are so high that there are no soundings close to the shore, but this does not prevent the extension of the dominion of the sea, as well in respect to jurisdiction as to fisheries, to a greater distance by particular treaties, or the rule hereinbefore mentioned, which extends dominion as far as there are soundings, or as far as the reach of a cannon shot; which is the rule at present universally acknowledged.' The effect of this dominion," the same author says, according to the principles of Puffendorf, which are incontestable, is, that every sovereign has a right to protect foreign commerce, in his dominions, as well as to secure it from insult, by preventing others from approaching nearer than a certain distance. In extending our dominion over the sea to one league, we have not extended it so far as the example of France and the other powers of Europe would have justified. They, therefore, can have no right to complain of our conduct in this respect."

Hamilton, in "The Answer," Hamilton's Works, Lodge's ed., VI. 218.

"Our jurisdiction . . . has been fixed (at least for the purpose of regulating the conduct of the government in regard to any events arising out of the present European war) to extend three geographical miles (or nearly three and a half English miles) from our shores; with the exception of any waters or bays which are so landlocked as to be unquestionably within the jurisdiction of the United States, be their extent what they may."

Mr. Pickering, Sec. of State, to the Lieut. Governor of Virginia, Sept. 2, 1796, 9 MS. Dom. Let. 281.

This letter related to a complaint of the master of the American ship Eliza that he had been captured by the British frigate Thetis within the territorial waters of the United States. The distance of the capture from land being, however, indefinitely alleged, Mr. Pickering took the ground that the Government could not "authoritatively interfere" without further evidence on the question, but that the most that could be done under the circumstances was to exhibit the papers to the British minister, who had undertaken to address the commander of the Thetis in a cautionary sense.

"There could surely be no pretext for allowing less than a marine league from the shore, that being the narrowest allowance found in any authorities on the law of nations. If any nation can fairly claim a greater extent the United States have pleas which cannot be rejected; and if any nation is more particularly bound by its own example not to contest our claim, Great Britain must be so by the extent of her own claims to jurisdiction on the seas which surround her. It is hoped, at least, that within the extent of one league you will be able to obtain an effectual prohibition of British ships of war from repeating the irreg

ularities which have so much vexed our commerce and provoked the public resentment, and against which an article in your instructions emphatically provides. It cannot be too earnestly pressed on the British Government that in applying the remedy copied from regulations heretofore enforced against a violation of the neutral rights of British harbors and coasts, nothing more will be done than what is essential to the preservation of harmony between the two nations. In no case is the temptation or the facility greater to ships of war for annoying our commerce than in their hovering on our coasts and about our harbors; nor is the national sensibility in any case more justly or more highly excited than by such insults. The communications lately made to Mr. Monroe, with respect to the conduct of British commanders even within our own waters, will strengthen the claim for such an arrangement on this subject, and for such new orders from the British Government as will be a satisfactory security against future causes of complaint."

Mr. Madison, Sec. of State, to Messrs. Monroe and Pinkney, ministers to
England, Feb. 3, 1807, Am. State Papers, For. Rel. III. 153, 155.

"The exclusive jurisdiction of a nation extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of sea inclosed by headlands; and, also, to the distance of a marine league, or as far as a cannon-shot will reach from the shore along all its coasts." Within these limits the sovereign of the mainland may arrest, by due process of law, alleged offenders on board of foreign merchant ships.

Mr. Buchanan, Sec. of State, to Mr. Jordan, Jan. 23, 1849, 37 MS. Dom.
Let. 98. See, to the same effect, Gallatin's Writings, II. 186.

"This Government adheres to, recognizes, and insists upon the principle that the maritime jurisdiction of any nation covers a full marine. league from its coast, and that acts of hostility or of authority within a marine league of any foreign country by naval officers of the United States are strictly prohibited, and will bring upon such officer the displeasure of this Government."

Mr. Seward, Sec. of State, to Mr. Welles, Sec. of the Navy, Aug. 4, 1862, 58 MS. Dom. Let. 15.

See, further, Mr. Seward to Mr. Welles, Oct. 10, 1862, 58 MS. Dom. Let. 324.

"There was reason to hope that the practice which formerly prevailed with powerful nations of regarding seas and bays usually of large extent near their coast as closed to any foreign commerce or fishery not specially licensed by them, was, without exception, a pretension of the past, and that no nation would claim exemption from the general rule of public law which limits its maritime jurisdiction

H. Doc. 551-45

to a marine league from its coast. We should particularly regret if Russia should insist on any such pretension."

Mr. Fish, Sec. of State, to Mr. Boker, min. to Russia, Dec. 1, 1875, MS.
Inst. Russia, XV. 536.

(3) DISCUSSION AS TO CUBA.

§ 146.

"The undersigned, Secretary of State of the United States, having taken the instructions of the President, will perform the duty of answering the note which was addressed to the undersigned on the 8th of October by His Excellency Señor Gabriel G. Tassara, minister plenipotentiary of Her Catholic Majesty the Queen of Spain.

"In that paper Mr. Tassara informs the undersigned that Her Catholic Majesty's Government is surprised that a United States naval officer cruising in the waters of Cuba has fallen into the error of claiming that the jurisdictional belt of the island of Cuba does not extend beyond three miles, whereas the Government has fixed the limit at six miles on the open sea. Mr. Tassara proceeds under his instructions to say that in fixing that limit Her Catholic Majesty's Government has conformed to all the rules of the law of nations. Mr. Tassara next observes that the principle which is generally recognized is that maritime jurisdiction extends to the range of a cannon ball, and that even abiding by this principle, which every nation has modified at its will, the belt fixed by Spain goes no farther than the modern improvements in artillery. Mr. Tassara, pursuing the subject, remarks that no international compact is required for the determination or recognition of a jurisdiction which is not at all excessive, but a special treaty might be necessary for making an exception in favor of any nation and no such treaty exists between Spain and the United States. Mr. Tassara adds that the United States are so much the more obliged to respect this principle as he thinks it must be evident to the undersigned that the jurisdictional belt claimed by the United States in some cases extends many miles farther than that designated by Spain.

"Mr. Tassara concludes with informing the undersigned that Her Catholic Majesty's Government trusts that the United States will cause the commanding officers of their naval forces in the Gulf to understand that the jurisdictional belt of the island of Cuba extends to six miles on the open sea, and that only beyond that limit is it allowed to them to exercise any act which may be in opposition to the rights of Spanish authority, and that thus all misunderstanding will cease, and the good relations of the two countries will not be liable to be disturbed by causes which ought entirely to disappear.

"The undersigned would observe, in the first place, that there are two principles bearing on the subject which are universally admitted, namely, first, that the sea is open to all nations, and secondly, that there is a portion of the sea adjacent to every nation over which the sovereignty of that nation extends to the exclusion of every other political authority.

"A third principle bearing on the subject is also well established, namely, that this exclusive sovereignty of a nation, thus abridging the universal liberty of the seas, extends no farther than the power of the nation to maintain it by force, stationed on the coast, extends. This principle is tersely expressed in the maxim Terræ dominium finitur ubi finitur armarum vis.

A more

"But it must always be a matter of uncertainty and dispute at what point the force of arms exerted on the coast can actually reach. The publicists rather advanced towards than reached a solution when they laid down the rule that the limit of the force is the range of a cannon-ball. The range of a cannon-ball is shorter or longer according to the circumstances of projection, and it must be always liable to change with the improvements of the science of ordnance. Such uncertainty upon a point of jurisdiction or sovereignty would be productive of many and endless controversies and conflicts. practical limit of national jurisdiction upon the seas was indispensably necessary, and this was found, as the undersigned thinks, in fixing the limit at three miles from the coast. This limit was early proposed by the publicists of all maritime nations. While it is not insisted that all nations have accepted or acquiesced and bound themselves to abide by this rule when applied to themselves, yet three points involved in the subject are insisted upon by the United States: First, that this limit has been generally recognized by nations; second, that no other general rule has been accepted; and third, that if any state has succeeded in fixing for itself a larger limit, this has been done by the exercise of maritime power, and constitutes an exception to the general understanding which fixes the range of a cannon-shot (when it is made the test of jurisdiction) at three miles. So generally is this rule accepted that writers commonly use the two expressions, of a range of cannon-shot and three miles, as equivalents of each other. In other cases they use the latter expression as a substitute for the former. Thus Wildman, in his Plain directions to naval officers as to the law of search, capture, and prize' (page 12, ed. London, 1854), says: The capture of vessels within the territory of a neutral state, or within three miles of the coast, . . . is illegal with respect to the neutral sovereign."

..

"Impressed by these general views, the United States are not prepared to admit that Spain, without a formal concurrence of other

nations, can exercise exclusive sovereignty upon the open sea beyond a line of three miles from the coast, so as to deprive them of the rights common to all nations upon the open sea.

"The United States admit that they have a temporary interest (during the present insurrection) to maintain a broad freedom of the seas, so as to render their naval operations as effective as may be consistent with the law of nations.

"The United States admit, moreover, that they favor the principle of enlarging the liberty of the seas, in their general policy, now as heretofore. But they declare, at the same time, that they entertain no jealousy of Spain. It need not be said anew that they have no hostile designs against her, and that they have no policy which is inconsistent with her retention of the island of Cuba, and her maintenance of her authority in that important part of her colonial dominions. They have, therefore, not been hasty in adopting the conclusion which the undersigned has announced upon the question which has thus been presented to them by Her Catholic Majesty's Government.

"They have even taken the pains to recur to the correspondence which has heretofore passed between the two countries to obtain such light upon the subject as might be derived from that source.

"Spain presented substantially the same claim to this Government in the case of the El Dorado in 1856, and Mr. William L. Marcy, then Secretary of State, by direction of the President, announced that the United States could not concede the extension of Spanish sovereignty beyond three miles in the seas which surround the island of Cuba.

"Upon the grounds which have been set forth, the President feels himself obliged to decline to give to the naval commanders of the United States the instructions proposed to him by Her Catholic Majesty's Government.

"In concluding, the undersigned thinks it is not unimportant to explain to Mr. Tassara the delay which has attended this reply. When Mr. Tassara's note was received, the undersigned could not close his eyes against the fact that the question presented by Mr. Tassara, although one of confessed importance, had not yet actively arisen in any proceedings or transactions which had occurred between the authorities of the two countries, and that therefore it was in one sense a speculative one. The undersigned, nevertheless, proposed to himself to enter upon the subject in a spirit of entire frankness and cordiality. At that moment, however, the case of the destruction of the so-called steamer Blanche or General Rush, by the United States war steamer Montgomery, as was alleged within the waters of Cuba, was brought to the knowledge of this Government by Mr. Tassara.