and waters approaching the land, there have been many and sharp controversies among the European nations concerning the claim for exclusive dominion. The questions arising on this claim are not very clearly defined and settled, and extravagant pretensions are occasionally put forward. The subject abounds in curious and interesting discussions, and, fortunately for the peace of mankind, they are, at the present day, matters rather of speculative curiosity than of use.

Grotius published his Mare Liberum against the Portuguese claim to an exclusive trade to the Indies, through the South Atlantic and Indian Oceans, and he shows that the sea was not capable of private dominion. He vindicates the free navigation of the ocean and the right of commerce between nations, and justly exposes the folly and absurdity of the Portuguese claim. Selden's Mare Clausum was intended to be an answer to the doctrine of Grotius, and he undertook to prove, by the laws, usages, and opinions of all nations, ancient and modern, that the sea was, in point of fact, capable of private dominion; and he poured a flood of learning over the subject. He fell far short of his great rival in the force and beauty of his argument, but he entirely surpassed him in the extent and variety of his citations and researches. Having established the fact that most nations had conceded that the sea was capable of private dominion, he showed, by numerous documents and records, that the English nation had always asserted and enjoyed a supremacy over the surrounding or narrow seas, and that this claim had been recognized by all the neighboring nations. Sir Matthew Hale considered the title of the king to the narrow seas adjoining the coast of England to have been abundantly proved by the treatise of Selden; and Butler speaks of it as * 28 a work of profound erudition. (a) Bynkershoek has also written a treatise on the same contested subject, in which he concedes to Selden much of his argument, and admits that the sea was susceptible of dominion, though he denies the title of the English, on the ground of a want of uninterrupted possession. He said there was no instance, at that time, in which the sea was subject to any particular sovereign, where the surrounding territory did not belong to him. (b)

(a) Harg. Law Tracts, 10; Co. Litt. iii. n. 205.

(b) Dissertatio de Dominio Maris; Bynk. Opera, ii. 124.

*

The claim of dominion to close or narrow seas is still the theme of discussion and controversy. Puffendorf (c) admits that, in a narrow sea, the dominion of it, and the right of fishing therein, may belong to the sovereigns of the adjoining shores. Vattel also (d) lays down the position, that the various uses to which the sea contiguous to the coast may be applied render it justly the subject of property. People fish there, and draw from it shells, pearls, amber, &c.; and who can doubt, he observes, but that the pearl fisheries of Bahram and Ceylon may be lawfully enjoyed as property? Chitty, in his work on commercial law, (e) has entered into an elaborate vindication of the British title to the four seas surrounding the British Islands, and known by the name of the British Seas, and, consequently, to the exclusive right of fishing and of controlling the navigation of foreigners therein. On the other hand, Sir William Scott, in the case of the Twee Gebroeders, (f) did not treat the claim of territory to contiguous portions of the sea with much indulgence. He said the general inclination of the law was against it; for in the sea, out of the reach of cannon-shot, universal use was presumed, in like manner as a common use in rivers flowing through con

terminous states was presumed; and yet, in both cases, * 29 * there might, by legal possibility, exist a peculiar property, excluding the universal or the common use. The claim of Russia to sovereignty over the Pacific Ocean north of the 51st degree of latitude as a close sea was considered by our government in 1822 to be against the rights of other nations. (a) It is difficult to draw any precise or determinate conclusion, amidst the variety of opinions, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends. (b) All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended

(c) Droit de la Nat. et des Gens, liv. 4, c. 5, sec. 5-10.
(d) B. 1, c. 23.

(f) 3 Rob. Adm. 336.

(e) Vol. i. 88-102.

(a) Mr. Adams's Letter to the Russian Minister, March 30, 1822.
(b) Azuni on the Maritime Law of Europe, vol. i. p. 206.

dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league; and the Congress of the United States have recognized this limitation, by authorizing the district courts to take cognizance of all captures made within a marine league of the American shores. (c) The executive authority of this country, in 1793, considered the whole of Delaware Bay to be within our territorial jurisdiction; and it rested its claims upon those authorities which admit that gulfs, channels, and arms of the sea belong to the people with whose lands they are encompassed. It was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon-shot. (d)

* Considering the great extent of the line of the Ameri- * 30 can coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume, for domestic purposes connected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi. It is certain that our government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the use of the waters of our coasts, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes. In 1793, our government thought they were entitled, in reason, to as broad a margin

(c) Bynk. Q. Pub. J. c. 8; Vattel, b. 1, c. 23, sec. 289; Act of Congress, June 5, 1794, c. 50; The King v. Forty-nine Casks of Brandy, 3 Hagg. Adm. 257. By the convention at London of the 13th July, 1841, between Great Britain, France, Austria, Prussia, and Russia, and the Ottoman Porte, it was declared and agreed to be an established principle of public law, that no ships of war of foreign powers should enter into the Straits of the Dardanelles and of the Bosphorus, thereby placing the territorial jurisdiction of the Sultan over the interior waters of his empire under the protection of the written public law of Europe. Wheaton's History of the Law of Nations, New York, 1845, p. 584.

(d) Opinion of the Attorney-General concerning the seizure of the ship Grange, dated 14th of May, 1793, and the Letter of the Secretary of State to the French Minister, of 15th of May, 1793.

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of protected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea-shores; (a) and, in 1806, our government thought it would not 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 from belligerent warfare, for the space between that limit and the American shore. It ought, at least, to be insisted that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within the chambers formed by headlands, or any

where at sea within the distance of four leagues, or from a * 31 right line from one headland to another." (b) In the case of the Little Belt, which was cruising many miles from the shore between Cape Henry and Cape Hatteras, our government laid stress on the circumstance that she was "hovering on our coasts;" and it was contended on the part of the United States that they had a right to know the national character of armed ships in such a situation, and that it was a right immediately connected with our tranquillity and peace. It was further observed, that all nations exercise the right, and none with more rigor or at a greater distance from the coast than Great Britain, and none on more justifiable grounds than the United States. (a) There can be but little doubt that, as the United States advance in commerce and naval strength, our government will be disposed more and more to feel and acknowledge the justice and policy of the British claim to supremacy over the narrow seas adjacent to the British isles, because we shall stand in need of similar accommodation and means of security. (b)

(a) Mr. Jefferson's Letter to M. Genet, November 8, 1793.

(b) Mr. Madison's Letter to Messrs. Monroe and Pinckney, dated May 17, 1806. (a) Mr. Monroe's Letter to Mr. Foster, October 11, 1811, and President's Message, November 5, 1811.

(b) In placing the commerce and navigation of states, by treaties of commerce, on the basis of equality, it is sometimes deemed advisable to except in express terms the coasting trade or coastwise navigation, of the respective parties, and to reserve the regulation of that trade to the separate laws of each nation. See the convention of commerce and navigation between the United States and the Peru-Bolivian Confederation, May 28, 1838, and between them and the Kingdom of Greece, August, 1838, and between them and Portugal, April, 1841, and between them and the Republic of Ecuador, June 13, 1839.

The statute

It was declared in the case of Le Louis, (c) that maritime states claim, upon a principle just in itself and temperately applied, a right of visitation and inquiry within those parts of the ocean adjoining to their shores. They were to be considered as parts of the territory for various domestic purposes, and the right was admitted by the courtesy of nations. The English hovering laws were founded upon that right. 9 Geo. II. c. 35, prohibited foreign goods to be transshipped within four leagues of the coast without payment of duties ; and the act of Congress of March 2, 1799, c. 128, sec. 25, 26, 27, 99, contained the same prohibition; and the exercise of jurisdiction, to that distance, for the safety and protection of the revenue laws, was declared by the Supreme Court, in Church v. Hubbart, (d) to be conformable to the laws and usages of nations.1 yl

(c) 2 Dod. Adm. 245.

(d) 2 Cranch, 187.

1 But see Wheat. pt. 2, c. 4, Dana's note 108; Twiss, pt. 1, § 181.

y See Hall, Int. Law, §§ 40-42, for an elaborate discussion of the rights of nations over marginal seas. It is believed by the author that, considering the increased range of modern guns, the doctrine of property to the distance, of a marine league would no longer be held.

The Queen v. Keyn, 2 Ex. Div. 63. This was an indictment for manslaughter. Defendant was a foreigner, commanding a foreign ship, and while sailing within three miles of the English coast, so negligently and unskilfully sailed his vessel that a collision resulted with an English ship, and by the collision a passenger on board the latter vessel was killed. Defendant was convicted in the Central Criminal Court, and the case came on appeal to the Criminal Court of Appeal, the question being whether the lower court had jurisdiction of the case. It was held by seven judges to six that the court did not have jurisdiction.

It was generally admitted that whatever jurisdiction a nation has over the

open sea adjacent to its coasts, extends to three miles, or, at most, to the range of cannon-shot from the shore. The majority of the court held, however, that, in the absence of statute, the jurisdiction over these waters was only to the extent necessary for the defence and security of the state, that the ordinary criminal jurisdiction did not extend over them, and hence that the law of the flag was the law to govern the case, and that the country of the flag had jurisdiction. Two judges held that even an act of Parliament could not give such jurisdiction. The minority were of opinion that the sea to the extent of three miles was a part of the territory of England, and subject to her criminal jurisdiction, and that at most the country of the flag had jurisdiction only in case of crimes committed wholly on board the foreign ship. See also Bar, Int. Law, 659, note (EE); The Brig Ann, 1 Gall. 62; United States v. New Bedford Bridge Co., 1 W. & M. 401, 487.