Page images

the river for a great distance from the mouths of the Mississippi. In 1786 the United States, in negotiation with Spain, asserted this right to free navigation of this river. Spain by treaty, in 1795, in Article 4, admitted this right in us. We have now given the policy of our republic in reference to the inland seas, the Mississippi, the Columbia and the St. Lawrence, which is based upon the noble principle of doing to others as we would they should do unto us. The moral law of nations confirms this doctrine.


Some nations are maritime and border the oceans and seas, or the straits connecting them. Our next inquiry is as to the extent of a nation's maritime curtilage, or what portion of the contiguous ocean, sea or strait belongs to, and is appurtenant to the adjacent soil and jurisdiction.

This maritime limit is important, as the internal and municipal jurisdiction of a nation has exclusive authority within it, and beyond it the laws of ... each nation alone govern its ships and all persons on board on the high seas and their connecting straits. The Supreme Court of the United States in the case of the Mariana Flora say, that jurisdiction is “claimed by all nations within cannon

shot of their shores, in virtue of their general sovereignty.” The Court say, it is “founded upon the principle of sovereignty and permanent appropriation, and has never been successfully asserted beyond it.” (See 11 Wheaton's Reports, 42, 55.)

During the presidency of Mr. Jefferson in January, 1804, the Secretary of State of the United States, in a letter of instruction to our envoy, James Monroe, at London, explained the views of our government. Refering to the right of search claimed by Britain on the high seas over neutral ships, and insisting that the claim was unfounded, the Secretary relying on the principle that “a neutral flag on the high seas” is “a safeguard to those sailing under it,” proceeds to say: “It is not then from the law or the usage of nations, nor from the tenour of treaties, that any sanction can be derived for the practice in question. And surely it will not be pretended that the sovereignty of any nation extends, in any case whatever, beyond its own dominions, and its own vessels on the high seas.” Again he says: “The British pretensions to dominion over the narrow seas are so obsolete, and so indefensible, that they never would have occurred as a probable objection in this case, if they had not actually frustrated an arrangement by Mr. King with the British ministry on the subject of impressments from American vessels on the high seas.” Lord St. Vincent, at the last moment, claimed to except the narrow seas which the American minister promptly refused, and the negotiation was abandoned. As to usage, the Secretary says, that during a period when maritime rights were not well understood, England had claimed and exercised pretensions to full sovereignty nearly over the seas from Van Staten in Norway to Cape Finistere on the coast of Spain, but that the progress of civilization had overthrown this unfounded usurpation, and he adds, “no principle in the code of public law, is at present better established than the common freedom of the seas beyond a very limited distance from the territories washed by them. This distance is not indeed fixed with absolute precision. It is varied in a small degree by written authorities, and perhaps it may be reasonably varied in some degree by local peculiarities. But the greatest distance which would now be listened to any where, would make a small proportion of the narrowest part of the narrowest seas in question.” In 1823, Mr. Adams, Secretary of State, in giving President Monroe's instructions to our Minister to Colombia, says: “The high seas are a general jurisdiction common to all, qualified by a special jurisdiction of each nation over its own vessels.” The Secretary denied that belligerents had any natural or acknowledged right to invade the vessels of neutral nations on the high seas. And he insisted that Great Britain by the treaty of Utrecht, in 1713, with France, admitted the principle that free ships make free goods, and that the flag of each party should protect the ship and all on board, enemies property and all property, except arms, ammunition and munitions of war, and all persons on board except soldiers in the actual service of the enemy.

The principle that a marine league is the limit of maritime curtilage seems to be admitted by our treaty with Great Britain of 1818, relative to the fisheries on the banks of Newfoundland. Beyond that line our right forever to fish is admitted, and within it a perpetual qualified right of fishing and curing fish is conceded in common with British subjects.


Different nations have claimed maritime jurisdictions of varying extent. The Romans, in a decree of the senate, directing Pompey the Great to clear the Mediterranean of pirates, assume fourteen leagues as their maritime curtilage, though they had little respect for commerce, and were not ambitious of naval power. Some writers have insisted that this appurtenant jurisdiction of a maritime State extends one hundred miles from its coast sea-ward, and in the fourteenth century, the Sovereign of Sardinia is said to have claimed a similar curtilage for that island. Valin proposed the sounding line as the measure of this right, and as a mode to ascertain the boundary of a nation's marine jurisdiction. Hubner, Vattel, Azuni, Bynkershoek, Sir Wm. Scott in the British Admiralty Court, France and the United States concur that, upon general principles, this maritime curtilage and the internal or municipal jurisdiction of a nation extends a marine league to sea, which is commonly esteemed the reach of a cannon shot from the shore. The act of Congress, passed in 1794, declares all captures within a marine league of any part of the American coast illegal, and it confers jurisdiction over such illegal captures upon the District Courts of the United States. The same rule is said to have been declared by the Court of Cassation of France, annulling a more extensive jurisdiction claimed by the municipal authorities of a French West India Island many years since. This rule applied liberally furnishes a natural and convenient line of demarkation between the internal jurisdiction and propriety rights of maritime nations, and the open sea, which is

« PreviousContinue »