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Jurisdiction over

adjoining

seas.

The extent of jurisdiction over the adjoining seas, often a question of difficulty and of dubious right. As far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. Navigable rivers which flow through a territory, and the sea-coast adjoining it, and the navigable waters included in bays, and between headlands and arms of the sea, belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation, and to the undisturbed use of the neighboring shores. (a) The open sea is not capable of being possessed as private property. The free use of the ocean, for navigation and fishing, is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all nations meet there, in time of peace, on a footing of entire equality and independence. No nation has any right or jurisdiction at sea, except it be over the persons of its own subjects, in its own public and private vessels; and so far territorial jurisdiction may be considered or preserved, for the vessels of a nation are, in many respects, considered as portions of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs. They may be punished for offences against the municipal laws of the state, committed on board of its public and private vessels at sea, and on board of its public vessels in foreign ports. (b) This jurisdiction is confined to the ship; and no one ship has a right to prohibit the approach of another at sea, or to draw round her a line of territorial jurisdiction, within which no other is at liberty to intrude. Every vessel, in time of peace, has a right to consult its own safety and convenience, and to pursue its own course. * 27 and business, without being disturbed, when it does not violate the rights of others. (c) As to narrow seas and waters approaching the land, there have been many and sharp contro

(a) Grotius, b. 2, c. 2, sec. 12; c. 3, sec. 7. Puff. b. 3, c. 3, sec. 4; b. 4, c. 5, sec. 3 and 8. Vattel, b. 1, c. 22, 23.

(b) Grotius, b. 2, c. 3, sec. 10 and 13. Rutherforth, b. 2, c. 9. Vattel, b. 1, c. 19, sec. 216. Forbes v. Cochrane, 2 Barnewall & Cresswell, 448. Wheaton's Elements of International Law, 3d edit. 157. Edinburgh Review for July, 1841, pp. 294, 295. (c) The Marianna Flora, 11 Wheaton, 38.

versies 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

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proved by the treatise of Selden; and Butler speaks of it *as 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. lib. 3, n. 205.

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

The claim of dominion to close or narrow seas, is still the theme of discussion and controversy. Puffendorf (a) 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 (b) 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, (c) 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 Wm. Scott, in the case of The Twee Gebroeders, (d) 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 conterminous states was presumed; and yet, in both cases, 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. (e) 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. (f) All that can reasonably be asserted is, that the

(a) Droit de la Nat. et des Gens, liv. 4, c. 5, sec. 5-10.

(b) B. 1, c. 23.

(c) Vol. i. 88-102.

(d) 3 Rob. Adm. Rep. 336.

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

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 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. (a) The executive authority of this country, in 1793, considered the whole of Delaware Bay to be within our territorial jurisdiction; and it rested its claim 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 cannonshot. (b)

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* Considering the great extent of the line of the American 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

(a) Bynk. Q. Pub. J. c. 8. Vattel, b. 1, c. 23, sec. 289. Act of Congress, June 5th, 1794, c. 50. The King v. Forty-Nine Casks of Brandy, 3 Hagg. Adm. R. 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.

(b) 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 May, 1793.

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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 coast, 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 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 anywhere at sea within the distance of four leagues, or from a right line from one headland to another." (b) In the case of The Little Belt, which was *31 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. (c) 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 adja

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

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

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