Conven

By the arrangement concluded at London and Elsition of 1841. nore, in 1841, between Denmark and Great Britain, the tariff of duties levied on the passage of the Sound and Belts was revised, the duties on non-enumerated articles were made specific, and others reduced in amount, whilst some of the abuses which had crept into the manner of levying the duties in general were corrected. The benefit of this arrangement, which is to subsist for the term of ten years, has been extended to all other nations privileged by treaty.' (a)

1 Scherer, der Sundzoll, seine Geschichte, sein jetziger Bestand und seine Staatsrechtlich-politische Lösung, Beilage Nr. 8-9.

(a) [For a further view of the treaties on this subject, see the Histoire des Progrès du Droit des Gens, by Mr. Wheaton, Leipzig edition, 1846, tom. i. p. 211. Mr. Wheaton, during his mission to Denmark, from 1827 to 1835, called the attention of his government to the Sound duties, with a view to the relief of American navigation, though as there was an implied recognition of them by the Treaty of 1826, which could not be terminated before 1836, nothing could be done respecting them, during his residence at Copenhagen. While at Berlin, he examined this question more fully, as well as what related to the analogous subject of the duties levied by the Hanoverian government at Stade, on the goods of all nations passing up the Elbe, except those of Hamburgh.

The Sound duties at Elsinore have, especially since the report of Mr. Webster, of May 24, 1841, and which was compiled from the despatches of Mr. Wheaton, received the particular consideration of the Department of State. Mr. Buchanan, in instructing, October 14th, 1848, Mr. Flenniken, Chargé d'Affaires at Copenhagen, tells him that, "under the public law of nations, it cannot be pretended that Denmark has any right to levy duties on vessels passing through the Sound from the North Sea to the Baltic;" for which he cites as authority the language of this work, in reference to Straits, connecting two seas. He, however, authorized him to offer the Danish government, for the perpetual renunciation of these duties, $250,000, in addition to the continuance of the commercial convention, and which places their navigation in the ports of the United States, as regards all foreign trade, circuitous as well as direct, on an equality with the merchant marine of the country. It was in return for the same concession in the treaty, concluded by Mr. Mann, in 1846, with Hanover, that it was stipulated that no higher or other toll should be collected at Stade upon the tonnage and cargoes of vessels of the United States than is collected upon the tonnage and cargoes of Hanoverian vessels. On the accession of President Pierce, in 1853, instructions were given to the Chargé d'Affaires, commissioned to Copenhagen, to press the matter of the Sound duties to a conclusion; and in reply to his inquiry, whether he might offer to Denmark any thing, either in the form of additional commercial advantages or otherwise, as an equivalent for them, he was informed by Secretary Marcy, that the President declined authorizing him to offer to that power any compensation for the removal of that as a favor, which we had demanded as a right.

Qu. Whe

Baltic Sea

sum?

The Baltic Sea is considered by the maritime powers bordering on its coasts as mare clausum against the ther the exercise of hostilities upon its waters by other States, is mare clauwhilst the Baltic powers are at peace. This principle was proclaimed in the treaties of armed neutrality in 1780 and 1800, and by the treaty of 1794, between Denmark and Sweden, guaranteeing the tranquillity of that sea. In the Russian declaration of war against Great Britain of 1807, the inviolability of that sea and the reciprocal guarantees of the powers that border upon it (guarantees said to have been contracted with the knowledge of the British government) were stated as aggravations of the British proceedings in entering the Sound and attacking the Danish capital in that year. In the British answer to this declaration it was denied that Great Britain had at any time acquiesced in the principles upon which the inviolability of the Baltic is maintained; however she might, at particular periods, have forborne, for special reasons influencing her conduct at the time, to act in contradiction to them. Such forbearance never could have applied but to a state of peace and real neutrality in the north; and she could not be expected to recur to it after France had been suffered, by the conquest of Prussia, to establish herself in full sovereignty along the whole coast, from Dantzic to Lubeck.!

§ 10. Con

The controversy, how far the open sea or main ocean, beyond the immediate vicinity of the coasts, may be troversy reappropriated by one nation to the exclusion of others, dominion of which once exercised the pens of the ablest and most

specting the

the seas.

The President, in his Annual Message of 1854, says that it is admitted that these tolls are sanctioned not by the general principles of the law of nations, but only by special conventions. He proposes to terminate the Treaty of 1826, from which, as providing that no higher duties on our vessels and cargoes, passing the Sound, should be paid than on those of the most favored nations, an agreement to submit to the exaction might be implied. See Wheaton's MS. Despatches from Copenhagen, April 9, 1830; February 20, 1833; and from Berlin, December 30, 1835; February 14, 1838; March 10, 1841; September 8, 1841; February 25, 1843; June 30, 1844; February 15, 1845; January 21, 1846. Webster's Works, vol. vi. p. 406. U. S. Statutes at Large, vol. ix. p. 858. Cong. Doc. H. of Rep. 33d Congress, 1st Sess. Ex. Doc. 108. President's Message, December, 1854.] ! Annual Register, vol. xlix. State Papers, p. 773.

learned European jurists, can hardly be considered open at this day. Grotius, in his treatise on the Law of Peace and War, hardly admits more than the possibility of appropriating the waters immediately contiguous, though he adduces a number of quotations from ancient authors, showing that a broader pretension has been sometimes sanctioned by usage and opinion. But he never intimates that any thing more than a limited portion could be thus claimed; and he uniformly speaks of "pars," or "portus maris," always confining his view to the effect of the neighboring land in giving a jurisdiction and property of this sort.1 He had previously taken the lead in maintaining the common right of mankind to the free navigation, commerce, and fisheries of the Atlantic and Pacific Oceans, against the exclusive claims of Spain and Portugal, founded on the right of previous discovery, confirmed by possession and the papal grants. The treatise De Mare Libero was published in 1609. The claim of sovereignty asserted by the kings of England over the British seas was supported by Albericus Gentilis in his Advocatio Hispanica in 1613. In 1635, Selden published his Mare Clausum, in which the general principles maintained by Grotius are called in question, and the claim of England more fully vindicated than by Gentilis. The first book of Selden's celebrated treatise is devoted to the proposition that the sea may be made property, which he attempts to show, not by reasoning, but by collecting a multitude of quotations from ancient authors, in the style of Grotius, but with much less selection. He nowhere grapples with the arguments by which such a vague and extensive dominion is shown to be repugnant to the law of nations. And in the second part, which indeed is the main object of his work, he has recourse only to proofs of usage and of positive compact, in order to show that Great Britain is entitled to the sovereignty of what are called the Narrow Seas. Father Paul Sarpi, the celebrated historian of the Council of Trent, also wrote a vindication of the claim of the Republic of Venice to the sovereignty of the Adriatic.2 Bynkershoek examined the general question, in the earliest of his published works, with the vigor and acumen

1 De Jur. Bel. ac Pac. lib. ii. cap. 3, §§ 8-13.

2 Paolo Sarpi, Del Dominio del Mare Adriatico e sui Reggioni per il Jus Belli della Serenissima Rep. di Venezia, Venet. 1676, 120.

which distinguish all his writings. He admits that certain portions of the sea may be susceptible of exclusive dominion, though he denies the claim of the English crown to the British seas on the ground of the want of uninterrupted possession. He asserts that there was no instance, at the time when he wrote, in which the sea was subject to any particular sovereign, where the surrounding territory did not also belong to him.' Puffendorf lays it down, that in a narrow sea the dominion belongs to the sovereigns of the surrounding land, and is distributed, where there are several such sovereigns, according to the rules applicable to neighboring proprietors on a lake or river, supposing no compact has been made, "as is pretended," he says, "by Great Britain;" but he expresses himself with a sort of indignation at the idea that the main ocean can ever be appropriated.2 The authority of Vattel would be full and explicit to the same purpose, were it not weakened by the concession, that though the exclusive right of navigation or fishery in the sea cannot be claimed by one nation on the ground of immemorial use, nor lost to others by non-user, on the principle of prescription, yet it may be thus established where the non-user assumes the nature of a consent or tacit agreement, and thus becomes a title in favor of one nation against another.3

On reviewing this celebrated controversy it may be affirmed,

1 De Dominio Maris, Opera Minora, Dissert. V., first published in 1702. "Nihil addo, quàm sententiæ nostræ hanc conjectionem: Oceanus, quà patet, totus imperio subjici non potest; pars potest, possunt et maria mediterranea, quotquot sunt, omnia. Nullum tamen mare mediterraneum, neque ulla pars Oceani ditione alicujus Principis tenetur, nisi quà in continentis sit imperio. Pronunciamus MAre Liberum, quod non possidetur vel universum possideri nequit, CLAUSUM, quod post justam occupationem navi unâ pluribusve olim possessum fuit, et, si est in fatis, possidebitur posthac, nullum equidem nunc agnoscimus subditum, cùm non sufficiat id affectasse, quin vel aliquando occupasse et possedisse, nisi etiamnum duret possessio, quæ gentium hodie est nullibi; ita libertatem et imperium, quæ haud facile miscentur, unâ sede locamus." Ib. cap. vii. ad finem.

2 De Jure Naturæ et Gentium, lib. iv. cap. 5, § 7.

3 Droit des Gens, liv. i. ch. 23, §§ 279–286.

As to the maritime police which may be exercised by any particular nation, on the high seas, for the punishment of offences committed on board its own vessels, or the suppression of piracy and the African slave trade, vide supra, Pt. ii. ch. ii. §§ 10, 15, pp. 158, 184.

that if those public jurists who have asserted the exclusive right of property in any particular nation over portions of the sea, have failed in assigning sufficient grounds for such a claim, so also the arguments alleged by their opponents for the contrary opinion must often appear vague, futile, and inconclusive. There are only two decisive reasons applicable to the question. The first is physical and material, which alone would be sufficient; but when coupled with the second reason, which is purely moral, will be found conclusive of the whole controversy.

I. Those things which are originally the common property of all mankind, can only become the exclusive property of a particular individual or society of men, by means of possession. In order to establish the claim of a particular nation to a right of property in the sea, that nation must obtain and keep possession of it, which is impossible.

II. In the second place, the sea is an element which belongs equally to all men like the air. No nation, then, has the right to appropriate it, even though it might be physically possible to do so.

It is thus demonstrated, that the sea cannot become the exclusive property of any nation. And, consequently, the use of the sea, for these purposes, remains open and common to all mankind.1

We have already seen that, by the generally approved usage of nations, which forms the basis of international law, the maritime territory of every State extends:

1st. To the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands, belonging to the same State.

2dly. To the distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State.

3dly. To the straits and sounds, bounded on both sides of the territory of the same State, so narrow as to be commanded by cannon-shot from both shores, and communicating from one sea to another.2

The reasons which forbid the assertion of an exclusive pro

1 Ortolan, Regles Internationales et Diplomatie de la Mer, tom. i. pp. 120-126. 2 Vide supra, §§ 6-9.