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“ To the interests and establishments which British industry and enterprise have created, Great Britain owes protection ; that protection will be given, both as regards settlement, and freedom of trade and navigation, with every attention not to infringe the coördinate rights of the United States; it being the desire of the British government, so long as the joint occupancy continues, to regulate its own obligations by the same rules which govern the obligations of every other occupying party."1
By the 3d article of the Convention between the United States and Great Britain, in 1818, it was “ agreed, that any country that may be claimed by either party, on the north-west coast of America, westward of the Stony Mountains, shall, together with its harbors, bays, and creeks, and the navigation of all rivers within the same, be free and open, for the term of ten years from the date of the signature of the present Convention, to the vessels, citizens, and subjects of the two powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other power or State to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences amongst themselves.”
In 1827, another Convention was concluded between the two parties, by which it was agreed :
« Art. 1. All the provisions of the third article of the Convention concluded between the United States of America and his Majesty the King of the United Kingdom of Great Britain and Ireland, on the 20th of October, 1818, shall be, and they are, hereby, further indefinitely extended and continued in force, in the same manner as if all the provisions of the said article were herein specifically recited.
“ Art. 2. It shall be competent, however, to either of the contracting parties, in case either should think fit at any time after the 20th of October, 1828, on giving due notice of twelve months to the other contracting party, to annul and abrogate this Con.
i Congress Documents, 20th Cong. and 1st Sess. No. 199. Greenhow, Proofs and Illustrations, H.
vention; and it shall, in such case, be accordingly entirely annulled and abrogated, after the expiration of the said term of notice.
“ Art. 3. Nothing contained in this Convention, or in the third article of the convention of the 20th of October, 1818, hereby continued in force, shall be construed to impair, or in any manner affect, the claims which either of the contracting parties may have to any part of the country westward of the Stony or Rocky Mountains.” 1
The notification provided for by the convention having been given by the American government, new discussions took place between the two governments, which were terminated by a treaty concluded at Washington, in 1846. By the first article of that treaty it was stipulated, that from the point on the 49th parallel of north latitude, where the boundary laid down in existing treaties and conventions between the United States and Great Britain terminates, the line of boundary shall be continued westward along the said 49th parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly through the middle of the said channel, and of Fucas Straits, to the Pacific Ocean; provided, however, that the navigation of the whole of the said channel and straits, south of the 49th parallel of north latitude, remain free and open to both parties. The second article stipulated for the free navigation of the Columbia River by the Hudson's Bay Company, and the British subjects trading with them, from the 49th degree of north latitude to the ocean. The third article provided that the possessory rights of the Hudson's Bay Company, and of all other British subjects, to the territory south of the parallel of the 49th degree of north latitude, should be respected. (a)
The maritime territory of every State extends to the $6. Mariports, harbors, bays, mouths of rivers, and adjacent parts time territoof the sea inclosed by headlands, belonging to the same diction. State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State. Within these limits, its rights of property and
1 Elliot's American Diplomatic Code, vol. i. pp. 282, 330.
territorial jurisdiction are absolute, and exclude those of every other nation. (a)
87. Es. The term “ coasts” includes the natural appendages tent of the of the territory which rise out of the water, although or,shore. these islands are not of sufficient firmness to be inhabited or fortified; but it does not properly comprehend all the shoals which form sunken continuations of the land perpetually covered with water. The rule of law on this subject is, terræ dominium finitur, ubi finitur armorum vis; and since the introduction of fire-arms, that distance has usually been recognized to be about three miles from the shore. In a case before Sir W. Scott, (Lord Stowell,) respecting the legality of a capture alleged to be made within the neutral territory of the United States, at the mouth of the river Mississippi, a question arose as to what was to be deemed the shore, since there are a number of little mud islands, composed of earth and trees, drifted down by the river, which form a kind of portico to the main land. It was contended that these were not to be considered as any part of the American territory — that they were a sort of “no man's land," not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. It was argued that the line of territory was to be taken only from the Balize, which is a fort raised on made land by the former Spanish possessors. But the learned judge was of a
Grotius, de Jur. Bel. ac. Pac. lib. ii. cap. 3, § 10. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 8. De Dominio Maris, cap. 2. Vattel, liv. i. ch. 23, $ 289. Valin, Comm. sur l'Ordonnance de la Marine, liv. v. tit. 1. Azuni, Diritto Marit. Pt. I. cap. 2, art. 3, § 15. Galiani, dei Doveri dei Principi Neutrali in Tempo di Guerra, liv. i. Life and Works of Sir L. Jenkins, vol. ii. p. 780.
(a) [Garden, Traité de la Diplomatie, t. i. p. 399. Hautefeuille, Droits des Nations neutres, t. i. p. 244.]
2 Unde dominium maris proximi non ultra concedimus, quàm e terrů illi imperari potest, et tamen eò usque; nulla siquidem sit ratio, cur mare, quod in alicujus imperio est et potestate, minus ejusdem esse dicamus, quàm fossam in ejus territorio. . . . . . Quare omnino videtur rectius, eò potestatem terræ extendi, quousque tormenta exploduntur, eaterus quippe cum imperare, tum possidere videmur. Loquor autem de his temporibus, quibus illis machinis utimur: alioquin generaliter dicendum esset, potestatem terræ finiri, ubi finitur armorum vis; etenim hæc, ut diximus, possessionem tuetur.” Bynkershoek, de Dominio Maris, cap. 2. Ortolan, Diplomatie de la Mer, liv. 2, chap. viii.
different opinion, and determined that the protection of the territory was to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which, indeed, they were formed. Their elements were derived immediately from the territory; and, on the principle of alluvium and increment, on which so much is to be found in the books of law, Quod vis fluminis de tuo prædio detraxerit, et vicino prædio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Whether they were composed of earth or solid rock would not vary the right of dominion, for the right of dominion does not depend upon the texture of the
The exclusive territorial jurisdiction of the British The King's crown over the inclosed parts of the sea along the Chambers. coasts of the island of Great Britain, has immemorially extended to those bays called the King's Chambers; that is, portions of the sea cut off by lines drawn from one promontory to another. A similar jurisdiction is also asserted by the United States over the Delaware Bay, and other bays and estuaries forming portions of their territory. It appears from Sir Leoline Jenkins, that both in the reigns of James I. and Charles II. the security of British commerce was provided for, by express prohibitions against the roving or hovering of foreign ships of war so near the neutral coasts and harbors of Great Britain as to disturb or threaten vessels homeward or outward bound; and that captures by such foreign cruisers, even of their enemies' vessels, would be restored by the Court of Admiralty, if made within the King's Chambers. So, also, the British “ Hovering Act," passed in 1736, (9 Geo. II. cap. 35,) assumes, for certain revenue purposes, a jurisdiction of four leagues from the coasts, by prohibiting foreign goods to be transshipped within that distance, without payment of duties. A similar provision is contained in the revenue laws of the United States; and both these provisions have been declared, by judicial authority in each country, to be consistent with the law and usage of nations.?
1 Robinson's Adm. Rep. vol. v. p. 385, (c.) The Anna.
2 Life and Works of Sir L. Jenkins, vol. ii. pp. 727, 728, 780. Opinion of the United States Attorney-General on the capture of the British ship Grange in the Delaware Bay, 1793. Waite's American State Papers, vol. i. p. 75. Dodson's Adm. Reports, vol. ii. p. 245. Le Louis. Cranch’s Reports, vol. ii. p. 187. Church v. Hubbard. Vattel, Droits des Gens, liv. i. ch. 22, $ 281.
o The right of fishing in the waters adjacent to the of fishery. coasts of any nation, within its territorial limits, belongs exclusively to the subjects of the State. The exercise of this right, between France and Great Britain, was regulated by a Convention concluded between these two powers, in 1839; by the 9th article of which it is provided, that French subjects shall enjoy the exclusive right of fishing along the whole extent of the coasts of France, within the distance of three geographical miles from the shore, at low-water mark, and that British subjects shall enjoy the same exclusive right along the whole extent of the coasts of the British Islands, within the same distance; it being understood, that upon that part of the coasts of France lying between Cape Carteret and the point of Monga, the exclusive right of French subjects shall only extend to the fishery within the limits mentioned in the first article of the Convention; it being also understood, that the distance of three miles, limiting the exclusive right of fishing upon the coasts of the two countries, shall be measured, in respect to bays of which the opening shall not exceed ten miles, by a straight line drawn from one cape to the other."
By the 1st article of the Convention of 1818, between the United States and Great Britain, reciting, that " whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof to take, dry, and cure fish, on certain coasts, bays, harbors, and creeks, of his Britannic Majesty's dominions in America," it was agreed between the contracting parties, “ that the inhabitants of the said United States shall have, forever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland, which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands; on the shores of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks, from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belleisle, and
1 Annales Maritimes et Coloniales, 1839, 1re Partie, p. 861.