that of the territorial seas of the United States. The same position was taken by Mr. Pickering, Secretary of State, on September 2, 1796; by Mr. Madison, Secretary of State, Feby. 3, 1807; By Mr. Webster, Secretary of State, August 1, 1842; by Mr. Seward, Secretary of State, December 16, 1862, August 10, 1863, Sept. 16, 1864; and by Mr. Fish, Secretary of State, December 1, 1875. "In a note from Mr. Fish to Sir Edward Thornton, dated Jan. 22, 1875, it is expressly stated in reply to inquiries from the British foreign office that this Government has uniformly, under every administration, objected to the pretension of Spain' to a six-mile limit. Mr. Fish proceeds to show that the United States statute, giving the right to board vessels within four leagues of the coast, is applied only to vessels coming to United States ports, and that the extension of the boundary line, between the United States and Mexico, to three leagues from land, by the treaty of Guadalupe Hidalgo, applies only to Mexico and the United States. "Mr. Evarts, writing to Mr. Fairchild, then our representative in Spain on March 3, 1881 (Foreign Relations, 1881) said: "This Government must adhere to the three-mile rule as the jurisdictional limit, and the cases of visitation without that line seem not to be excused or excusable under that rule.' "Whether the line which bounds seaward the three-mile zone follows the indentations of the coast or extends from headland to headland is the question next to be discussed. “The headland theory, as it is called, has been uniformly rejected by our Government, as will be seen from the opinions of the Secretaries above referred to. The following additional authorities may be cited on this point: 6 "President Woolsey makes the following comment on the headland' claim: But such broad claims have not, it is believed, been much urged, and they are out of character for a nation that has ever asserted the freedom of doubtful waters as well as contrary to the spirit of niore recent times.' "In an opinion of the umpire of the London commission of 1853, it was held that: It can not be asserted as a general rule, that nations have an exclusive right of fishery over all adjacent waters to a distance of three marine miles beyond an imaginary line drawn from headland to headland.' "This doctrine is new and has received a proper limit in the convention between France and Great Britain of the 2d of August, 1839, in which it is equally agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland. Cited Halifax Commission, page 152. In the same volume, page 155, it is stated that on May 14, 1870, the ten-mile-headland doctrine having been reasserted by Mr. Peter Mitchell, provincial minister of marine and fisheries, Lord Granville, British foreign secretary, on June 6, 1870, telegraphed to the governor-general as follows: Her Majesty's Government hopes that the United States fishermen will not be, for the present, prevented from fishing, except within three miles from land or in bays which are less than six miles broad at the mouth.' "We may therefore regard it as settled that, so far as concerns the eastern coast of North America, the position of this Department has uniformly been that the sovereignty of the shore does not, so far as territorial authority is concerned, extend beyond three miles from low-water mark, and that the seaward boundary of this zone of territorial waters follows the coast of the mainland, extending where there are islands so as to place round such islands the same belt. This necessarily excludes the position that the seaward boundary is to be drawn from headland to headland, and makes it follow closely, at a distance of three miles, the boundary of the shore of the continent or of adjacent islands belonging to the continental sovereign. "The position I here state, you must remember, was not taken by this Department speculatively. It was advanced in periods when the question of peace or war hung on the decision. When, during the three earlier administrations, we were threatened on our coast by Great Britain and France, war being imminent with Great Britain, and for a time actually though not formally engaged in with France, we asserted this line as determining the extent of our territorial waters. When we were involved, in the earlier part of Mr. Jefferson's Administration, in difficulties with Spain, we then told Spain that we conceded to her, so far as concerned Cuba, the same limit of territorial waters as we claimed for ourselves, granting nothing more; and this limit was afterwards reasserted by Mr. Seward during the late civil war, when there was every inducement on our part not only to oblige Spain, but to extend, for our own use as a belligerent, territorial privilege. When, in 1807, after the outrage on the Chesapeake by the Leopard, Mr. Jefferson issued a proclamation excluding British men-of-war from our territorial waters, there was the same rigor in limiting these waters to three miles from shore. And during our various fishery negotiations with Great Britain we have insisted that beyond the three-mile line British territorial waters on the northeastern coast do not extend. Such was our position in 1783, in 1794, in 1815, in 1818. Such is our position now in our pending controversy with Great Britain on this important issue. It is true that there are qualifications to this rule, but these qualifications do not affect its application to the fisheries. We do not, in asserting this claim, deny the free right of vessels of other nations to pass, on peaceful errands, through this zone, provided they do not by loitering produce uneasiness on the shore or raise a suspicion of smuggling. Nor do we hereby waive the right of the sovereign of the shore to require that armed vessels, whose projectiles, if used for practice or warfare, might strike the shore, should move beyond cannon range of the shore when engaged in artillery practice or in battle, as was insisted on by the French Government at the time of the fight between the Kearsarge and the Alabama, in 1864, off the harbor of Cherbourg. We claim also that the sovereign of the shore has the right, on the principle of self defence, to pursue and punish marauders on the sea to the very extent to which their guns would carry their shot, and that such sovereign has jurisdiction over crimes committed by them through such shot, although at the time of the shooting they were beyond three miles from shore. But these qualifications do not in any way affect the principle I now assert, and which I am asserting and pressing in our present contention with Great Britain as to the northeastern fisheries. From the time when European fishermen first visited the great fisheries of the northeastern Atlantic, these fisheries, subject to the territorial jurisdiction above stated, have been held open to all nations; and even over the marine belt of three miles the jurisdiction of the sovereign of the shore is qualified by those modifications which the law of necessity has wrought into international law. Fishing boats or other vessels, traversing those rough waters, have the right, not merely of free transit of which I have spoken, but of relief, when suffering from want of necessaries, from the shore. There they may go by the law of nations, irrespective of treaty, when suffering from want of water, or of food or even of bait, when essential to the pursuit of a trade which is as precarious and as beset with disasters as it is beneficent to the population to whom it supplies a cheap and nutritious food. These rights we insist on being conceded to our fishermen in the northeast, where the mainland is under the British sceptre. We can not refuse them to others on our northwest coast, where the sceptre is held by the United States. We asserted them, as is seen by Mr. Fish's instruction, above quoted of December 1, 1875, against Russia, thus denying to her jurisdiction beyond three miles on her own marginal seas. We can not claim greater jurisdiction against other nations, of seas washing territories which we derived from Russia under the Alaska purchase." Mr. Bayard, Sec. of State, to Mr. Manning, Sec. of Treasury, May 28, 1886, 160 MS. Dom. Let. 348. As to hot pursuit, see supra, § 144. In May, 1891, the Chilean insurgent steamer Itata, while in custody at sea. of the United States, put to sea, taking with her a deputy United States marshal who was on board. Orders were given to United States men-of-war to search for her and seize her, if on the high (Mr. Tracy, Sec. of Navy, to Capt. Remey U. S. S. Charleston, tel. May 8, 1891, H. Ex. Doc. 91, 52 Cong. 1 sess. 250.) The Itata succeeded in reaching Iquque, where she was voluntarily delivered over to the United States by the Congressionalists without demand. (See testimony of Admiral Brown, in South Am. S. S. Co. v. United States, No. 18, United States and Chilean Claims Commission (1901), 218 et seq.) In reply to an inquiry touching the halibut fisheries on the west coast of Greenland, the Danish minister at Washington communicated to the Department of State copies of a royal order of March 18, 1776, and of a decree of May 8, 1884, in relation to the Greenland trade and fisheries. By these papers, as well as by the minister's statement, it appeared that foreigners were at liberty to fish in the waters in question at a distance of a Danish mile from the coast. Mr. Bayard, Sec. of State, to Count de Sponneck, Danish min., Dec. 3, 1888, acknowledging receipt of a note of Dec. 12; Mr. Bayard, Sec. of State, to Messrs. Babson, June 15, 1888, 168 MS. Dom. Let. 612. That Norway claims, in respect of the fisheries, perhaps on grounds of prescription or long acquiescence, a jurisdiction of four marine miles, see Moore, Int. Arbitrations, I. 920, note. By the act of April 30, 1900, to provide a government for the Territory of Hawaii, all laws of the Republic of Hawaii which conferred exclusive fishing rights on any person were repealed, and all sea fisheries of the Territory not included in any fish pond or artificial enclosure were declared to be free to all citizens of the United States, subject, however, to such vested rights as might be established in the manner prescribed in the act. (7) QUESTION OF DEFENSIVE POWER. $ 150. "In defining the distance protected against belligerent proceedings it would not, perhaps, be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity for the space between that limit and the American shore. But at least it may be insisted that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory. Without any particular inquiry into the extent of these, it may be observed, 1st, that the British act of Parliament in the year 1736, 9 G. II. c. 35, supposed to be that called the 'hovering act,' assumes, for certain purposes of trade, the distance of four leagues from the shores; 2d, that it appears that, both in the reign of James I. and of Charles II. (see L. Jenkins, vols. 1 and 2) the security of the commerce with British ports was provided for by express prohibitions, against the roving or hovering of belligerent ships so near the neutral harbors and coasts of Great Britain as to disturb or threaten vessels homeward or outward bound, as well as against belligerent proceedings generally, within an inconvenient approach towards British territory." Mr. Madison, Sec. of State, to Messrs. Monroe and Pinkney, plenipos. in London, May 17, 1806, Am. State Papers, For. Rel. III. 119, 121. Messrs. Monroe and Pinkney were instructed to propose an article prohibiting seizures, searches, and other interruptions by belligerent cruisers within harbors and chambers formed by headlands, or anywhere at sea, within 4 leagues of shore; but it was stated that, if that distance could not be obtained, "any distance not less than one sea league may be substituted in the article." and Case of the "Ala- The leading illustration of the distinction that has sometimes been drawn between the exercise by a nation of its protective power and the claim of exclusive possession and jurisdiction, is found in the position taken by the French Government in the case of the Alabama and the Kearsarge in 1864. When the Kearsarge appeared off Cherbourg, France, in pursuit of the Alabama, which was then lying in that harbor, M. Drouyn de l'Huys, the French minister of foreign affairs, who had been advised that the Alabama intended to meet the Kearsarge, and that the ships probably would attack each other as soon as they were three miles off the coast, made to Mr. Dayton, minister of the United States, in an interview, the following statement: "That a sea fight would thus be got up in the face of France, and at a distance from their coast within reach of the guns used on shipboard in these days. That the distance to which the neutral right of an adjoining government extended itself from the coast was unsettled, and that the reason of the old rules, which assumed that three miles was the outermost reach of a cannon shot, no longer existed, and that, in a word, a fight on or about such a distance from their coast would be offensive to the dignity of France and they would not permit it." Mr. Dayton replied that "no other rule than the threemile rule was known or recognized as a principle of international law," but that, "if a fight were to take place, and we would lose nothing and risk nothing by its being further off, I had, of course, no objection." Mr. Dayton immediately advised Captain Winslow, of the Kearsarge, by letter, of the representations of M. Drouyn de a a Mr. Dayton, min. to France, to Mr. Seward, Sec. of State, June 17, 1864, Dip. Cor. 1864, III. 104. |