ground of lands belonging to the territory of the State, a jurisdic- upon the tion and right of property over certain other portions of prescripthe sea have been claimed by different nations, on the tion. America, (and who acted as the British Plenipotentiary,) for the final adjustment of these questions, in connection with a trade between the United States and the adjacent Provinces, on the principles of reciprocity. The articles in relation to the fisheries are asfollows: ARTICLE I. It is agreed by the high contracting parties, that, in addition to the liberty secured to the United States' fishermen by the above-named Convention of 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies, therein defined, the inhabitants of the United States shall have, in common with the subjects of her Britannic Majesty, the liberty to take fish of every kind, except shell fish, on the seacoasts and shores, and in the bays, harbors, and creeks, of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore; with permission to land upon the coasts and shores of those colonies, and the islands thereof, and also upon the Magdalen Islands,. for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with the British fishermen, in the peaceable use of any part of the said coast, in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery; and that the salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, are hereby reserved, exclusively, for British fishermen. And it is further agreed, that in order to prevent or settle any disputes, as to the places to which the reservation of exclusive right to British fishermen, contained in this article, and that of fishermen of the United States, contained in the next succeeding article, apply, each of the high contracting parties, on the application of either to the other, shall, within six months thereafter, appoint a commissioner. The said commissioners, before proceeding to any business, shall make and subscribe a solemn declaration, that they will impartially and carefully decide, to the best of their judgment, and according to justice and equity, without fear, favor, or affection to their own country, upon all such places as are intended to be reserved and excluded from the common liberty of fishing, under this and the next succeeding article, and such declaration shall be entered on the record of their proceedings. The commissioners shall name some third person, to act as arbitrator or umpire in any case or cases on which they may themselves differ in opinion. If they should not be able to agree upon the name of such person, they shall each name a person, and it shall be determined by lot which of the two persons so named shall be arbitrator or umpire, in cases of difference or disagreement between the commissioners. The person so to be chosen to be arbitrator or umpire shall, before proceeding to act as such in any case, make and subscribe a solemn declaration, in a form similar to that which shall already have been made and subscribed by the commissioners, which shall be entered on the record of their proceedings. ground of immemorial use. Such, for example, was the sovereignty formerly claimed by the Republic of Venice over the Adriatic. The maritime supremacy claimed by Great Britain over what are called the Narrow Seas has generally been asserted merely by requiring certain honors to the British flag in those seas, which have been rendered or refused by other nations, according to circumstances, but the claim itself has never been sanctioned by general acquiescence.1 Straits are passages communicating from one sea to another. If the navigation of the two seas thus connected is free, the navi In the event of the death, absence, or incapacity of either of the commissioners or the arbitrator, or umpire, or of their or his omitting, declining, or ceasing to act as such commissioner, arbitrator, or umpire, another and different person shall be appointed or named, as aforesaid, to act as such commissioner, arbitrator, or umpire, in the place and stead of the person so originally appointed or named as aforesaid, and shall make and subscribe such declaration as aforesaid. Such commissioners shall proceed to examine the coasts of the North American Provinces and of the United States, embraced within the provisions of the first and second articles of this treaty, and shall designate the places reserved by the said articles from the common right of fishing therein. The decision of the commissioners, and of the arbitrator or umpire, shall be given in writing in each case, and shall be signed by them respectively. The high contracting parties hereby solemnly engage to consider the decision of the commissioners conjointly, or of the arbitrator or umpire, as the case may be, as absolutely final and conclusive in each case decided upon by them or him respectively. ART. 2. It is agreed by the high contracting parties, that British subjects shall have, in common with the citizens of the United States, the liberty to take fish of every kind, except shell fish, on the eastern sea-coasts and shores of the United States, north of the thirty-sixth parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea-coast coasts and shores of the United States, and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States, and of the islands aforesaid, for the purpose of drying their nets and curing their fish; provided that in so doing they do not interfere with the rights of private property, or with the fishermen of the United States, in the peaceable use of any part of the said coasts, in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery, and that salmon and shad fisheries, and all fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States. Washington Union.] 1 Vattel, Droit des Gens, liv. i. ch. 23, § 289. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. ii. ch. 1, § 42. Edinburgh Review, vol. xi. art. 1, pp. 17-19. Wheaton's Hist. Law of Nations, pp. 154-157. Klüber, § 132. gation of the channel by which they are connected ought also to be free. Even if such strait be bounded on both sides by the territory of the same sovereign, and is at the same time so narrow as to be commanded by cannon shot from both shores, the exclusive territorial jurisdiction of that sovereign over such strait is controlled by the right of other nations to communicate with the seas thus connected. Such right may, however, be modified by special compact, adopting those regulations which are indispensably necessary to the security of the State whose interior. waters thus form the channel of communication between different seas, the navigation of which is free to other nations. Thus the passage of the strait may remain free to the private merchant vessels of those nations having a right to navigate the seas it connects, whilst it is shut to all foreign armed ships in time of peace. Sea, the danelles. So long as the shores of the Black Sea were exclu- The Black sively possessed by Turkey, that sea might with proBosphorus, priety be considered a mare clausum; and there seems and the Darno reason to question the right of the Ottoman Porte to exclude other nations from navigating the passage which connects it with the Mediterranean, both shores of this passage being at the same time portions of the Turkish territory; but since the territorial acquisitions made by Russia, and the commercial establishments formed by her on the shores of the Euxine, both that empire and the other maritime powers have become entitled to participate in the commerce of the Black Sea, and consequently to the free navigation of the Dardanelles and the Bosphorus. This right was expressly recognized by the seventh article of the treaty of Adrianople, concluded in 1829, between Russia and the Porte, both as to Russian vessels and those of other European States in amity with Turkey.' (a) The right of foreign vessels to navigate the interior waters of 1 Martens, Nouveau. Recueil, tom. viii. p. 143. (a) [The 7th article of the treaty of 1830, between the United States and the Ottoman Porte provides that merchant vessels of the United States, in like manner as vessels of the most favored nations, shall have liberty to pass the Canal of the Imperial Residence, and go and come in the Black Sea, either laden or in ballast; and they may be laden with the produce, manufactures, and effects of the Ottoman Empire, excepting such as are prohibited, as well as of their own country. U. S. Statutes at Large, vol. viii. p. 409.] Turkey, which connect the Black Sea with the Mediterranean, does not extend to ships of war. The ancient rule of the Ottoman Empire, established for its own security, by which the entry of foreign vessels of war into the canal of Constantinople, including the strait of the Dardanelles and that of the Black Sea, has been at all times prohibited, was expressly recognized by the treaty concluded at London the 13th July, 1841, between the five great European powers and the Ottoman Porte. By the 1st article of this treaty, the Sultan declared his firm resolution to maintain, in future, the principle invariably established as the ancient rule of his empire; and that so long as the Porte should be at peace, he would admit no foreign vessel of war into the said straits. The five powers, on the other hand, engaged to respect this determination of the Sultan, and to conform to the above-mentioned principle. By the 2d article it was provided, that, in declaring the inviolability of this ancient rule of the Ottoman Empire, the Sultan reserved the faculty of granting, as heretofore, firmans allowing the passage to light armed vessels employed according to usage, in the service of the diplomatic legations of friendly powers. By the 3d article, the Sultan also reserved the faculty of notifying this treaty to all the powers in amity with the Sublime Porte, and of inviting them to accede to it.' Danish over the Sound and the Belts. The supremacy asserted by the King of Denmark sovereignty over the Sound and the two Belts which form the outlet of the Baltic Sea into the ocean, is rested by the Danish public jurists upon immemorial prescription, sanctioned by a long succession of treaties with other powers. According to these writers, the Danish claim of sovereignty has been exercised from the earliest times beneficially for the protection of commerce against pirates and other enemies by means of guard-ships, and against the perils of the sea by the establishment of lights and land-marks. The Danes continued for several centuries masters of the coasts on both sides of the Sound, the province of Scania not having been ceded to Sweden until the treaty of Roeskild, in 1658, confirmed by that of 1660, in which it was stipulated that Sweden should never lay claim to the 1 Wheaton's Hist. Law of Nations, pp. 583-585. Sound tolls in consequence of the cession, but should content herself with a compensation for keeping up the light-houses on the coast of Scania. The exclusive right of Denmark was recog nized as early as 1368, by a treaty with the Hanseatic republics, and by that of 1490, with Henry VII. of England, which forbids English vessels from passing the Great Belt as well as the Sound, unless in case of unavoidable necessity; in which case they were to pay the same duties at Wyborg as if they had passed the Sound at Elsinore. The treaty concluded at Spire, in 1544, with the Emperor Charles V., which has commonly been referred to as the origin, or at least the first recognition, of the Danish claim to the Sound tolls, merely stipulates, in general terms, that the merchants of the Low Countries frequenting the ports of Denmark should pay the same duties as formerly. The treaty concluded at Christianople, in 1645, between Denmark and the United Provinces of the Netherlands, is the earliest convention with any foreign power by which the amount of duties to be levied on the passage of the Sound and Belts was definitely ascertained. A tariff of specific duties on certain. articles therein enumerated was annexed to this treaty, and it was stipulated that "goods not mentioned in the list should pay, according to mercantile usage, and what has been practised from ancient times." A treaty was concluded between the two countries at Copenhagen, in 1701, by which the obscurity in that of Christianople as to the non-specified articles, was meant to be cleared up. By the third article of the new treaty it was declared, that as to the goods not specified in the former treaty," the Sound duties are to be paid according to their value; that is, they are to be valued according to the place from whence they come, and one per centum of their value to be paid. These two treaties of 1645 and 1701, are constantly referred to in all subsequent treaties, as furnishing the standard by which the rates of these duties are to be measured as to privileged nations. Those not privileged, pay according to a more ancient tariff for the specified articles, and one and a quarter per centum on unspecified articles.1 1 Schlegel, Staats-Recht des Königreich Dänemark, 1 Th. kap. 7, §§ 27-29. Wheaton, Hist. Law of Nations, pp. 158-161. |