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territorial jurisdiction are absolute, and exclude those of every other nation. (a)
The term “ coasts” includes the natural appendages § 7. Extent of the of the territory which rise out of the water, although term coasts 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. ï.
(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 terrâ 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 soil.1
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 2
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 The right of fishing in the waters adjacent to the $ 8. Right 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. 1
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 thence northwardly indefinitely along the coast; without prejudice, however, to any of the exclusive rights of the Hudson Bay Company. And that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks, of the southern part of the coast of Newfoundland, here above described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish, on or within three marine miles of any of the coasts, bays, creeks, or harbors, of his Britannic Majesty's dominions in America, not included within the above-mentioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbors, for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." 1 (a)
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.
1 Annales Maritimes et Coloniales, 1839, 1re Partie, p. 861.
1 Elliot's Diplomatic Code, vol. i. p. 281.
(a) [The negotiations of 1818 were conducted by Messrs. Gallatin & Rush, on the part of the United States, and by Mr. Robinson, (afterwards Lord Goderich,) and Mr. Goulburn, on the part of Great Britain. An arrangement on the subject of impressment, on the basis heretofore referred to, (pp. 164–5, note,) of the exclusion of all natural born citizens or subjects of either
thereafter naturalized, from serving in the public or private marine of the other, was, as in the negotiations both previous and subsequent, made a subject of discussion; and we are informed by Mr. Rush, that a satisfactory adjustment only failed to be effected, because the British insisted on two points of detail. The one regarded as naturalized seamen, within the provision of the treaty, those only, whose names should be inserted in the lists, specifying the places of their birth and the dates of their naturalization, which each government was to furnish to the other, within twelve months after the ratification of the treaty, and the other made the exclusion, imposed by the treaty, apply to those seamen, who were naturalized after its date, and before its ratification. From the fact that, anterior to the adoption of the Federal constitution, the several States exercised the power of naturalization, and that the acts of Congress did not require, for several years, the birth-place of
Beside those bays, gulfs, straits, mouths of rivers, to portions of the sea
and estuaries which are inclosed by capes and head.
the aliens, who were naturalized, to be recorded, and that minor children of naturalized persons, if within the limits of the Union, become ipso facto naturalized, it would have been impossible for us to make the necessary returns. Nor were the British satisfied with our proposition to throw the burden of proof of their naturalization on such seamen as might not be included in the lists. The other provision, however conformable to the rule in ordinary cases, was objected to as giving a retroactive operation to the treaty, with regard to such seamen as might be naturalized in the period intervening between its date and ratification. Mr. Rush expresses the confident opinion, which, from what is elsewhere stated, would seem likewise to have been that of Mr. Gallatin, that “ had Lord Castlereagh, (who was then attending the Congress at Aix-la-Chapelle,) been in London, there would not have been a failure.”
The point mainly discussed, as regards the fisheries, was, whether the recognition of the American right and liberty to fish on the banks of Newfoundland and elsewhere, in the 3d article of the treaty of 1783, was of a permanent character, or liable, like the provisions of an ordinary treaty, to be abrogated by war. The British doctrine was, that the treaty of 1783 not being reënacted or confirmed by the treaty of Ghent, was annulled by the war of 1812. The United States, while they did not deny the general rule that a war put an end to previous treaties, insisted that that rule was not applicable to the treaty of 1783, which was a treaty of partition, and by which the rights of each party were laid down as primary and fundamental ; so much of territory and incidental rights being allotted to the one and so much to the other. The entire instrument implied permanence, and hence all the fishing rights secured under it to the United States were placed upon the same foundation with their independence itself. This matter was finally adjusted on the basis of compromise, as embodied in the treaty cited in the text. Rush's Memoranda of a Residence at the Court of London, pp. 432, 439, 445, 390.
Discussions, as to the interpretation of the provisions respecting the fisheries, in the treaty of 1818, go back as far as 1823; and Mr. Forsyth, in instructing Mr. Stevenson, minister at London, February 20, 1841, states, as the point of difference, that the provincial authorities assume a right to exclude American vessels from all their bays, including the Bays of Fundy and Chaleurs, and to prohibit their approach within three miles of a line drawn from headland to headland, while the American fishermen believe that they have a right to take fish anywhere within three miles of land. Certain relaxations in the pretensions of England, with regard to the Bay of Fundy, were, in 1845, announced by Lord Aberdeen to Mr. Everett, minister at London; but the whole subject obtained renewed importance in 1852, on account of a British force being ordered to that coast, to protect the claims of the colonists, and a correspondence, involving the original merits of the controversy, was, during that year, carried on, at London and at Washington. See Cong. Doc. 32d Cong. 1st Sess. Senate, Ex. Doc. No. 100. Special Session, 1853, Senate Ex. Doc. No. 3.
A treaty was concluded at Washington, on 5th of June, 1854, by Mr. Marcy, Secretary of State, and the Earl of Elgin, then Governor-General of British North