« PreviousContinue »
the common highway of all nations, and subject to no municipal control of any state. Our general rule applicable to all continents and islands, is this, that from their outermost projections, or promentories, at the distance of a marine league sea-ward, points be taken, and let these be connected by straight lines, one or more, so as to complete this marine boundary. All islands and fisheries within would, by this rule, fall under the internal jurisdiction of the State governing the shore, and all without sea-ward would be the common inheritance of all mankind, from the Father of all. By this rule the Atlantic boundary of the United States might be thus easily and naturally traced. Extend the north-eastern boundary line between the United States and the British Provinces to a point in the Atlantic one marine league from the coast, and from thence draw a straight line to a point a marine league due east of the outermost part of the island of Nantucket, and from thence draw a straight line to a point due east of the extremity of Cape Hatteras at the distance of a ma. rine league therefrom, and from thence draw a straight line to a sea station southerly from the point of Florida and distant a marine league, from the south part of the most southerly American island off the coast, and from thence draw a straight
line to a point a marine league at sea in the south
western boundary of the United States, extended so as to intersect it and complete our Atlantic line of demarkation. In passing around Florida and the small islands and Cape Cod, the line must be deflected outward from a straight line so that not less than a marine league of curtilage shall be allowed at all points of the whole line of demarkation. If the United States should own any island beyond this boundary, its marine curtilage around it would be, as well as that of all other islands, a marine league, ascertained according to this convenient rule. It would be, and is applicable to all maritime States, and seems founded in nature and sanctioned by the moral law of nations. By this rule the fisheries appurtenant to the coasts of continents and islands would belong, as they naturally do, to the nation owning the adjacent shore, while the right of fishing and free navigation beyond the marine limit would remain for the common use of all men of all nations. By this rule all bays and waters within the line of demarkation and all enclosed waters, like the Chesapeake and Delaware Bays and Long Island Sound, would fall within the internal legislation of the United States, and of the States according to the constitutional distribution of Governmental authority. In all countries, ail waters enclosed within the land of one nation, except a passage to the sea, would by this just and natural rule belong to it, and are subject to its jurisdiction. This reasonable rule, according with the common sense of mankind, forms part of the moral law of nations.
*SECTION THIRTEENTH. UNFOUNDED MARITIME PRETENSIONS.
Nations at different eras have put forth the most extravagant pretensions to marine jurisdiction as appurtenant to their territories. The Danes have pretended to jurisdiction over the Sound and other passes into the Baltic. Venice owning a part of the coasts of the Adriatic sea, claimed, in the pride of her power, exclusive jurisdiction of it, and the espousal of that aquatic bridegroom by the queen of the isles of the Adriatic, is said to have been a brilliant exhibition of her supposed right of sovereignty. The Portuguese in the zenith of their naval power, like Venice, put forth equally absurd pretensions to appropriate seas that are the common property of all men. That power claimed exclusive authority over the South Atlantic and Indian Oceans, and the sole right of commerce with the East Indies, and she sought to exclude all other nations from those Oceans and the India trade. Grotius and all writers of authority on national law, Holland, England, and all other civilized nations, have condemned this pretended monoply of those seas as contrary to the law of nature and nations. Spain once pretended to possess an exclusive right to the Gulf of Mexico. The high and holy law, do as you would be done unto, and the moral law of nations, also reprobate these unfounded claims to a monopoly of the seas and oceans. These baseless assumptions of municipal authority over the high seas, though condemned by right reason and the moral sense of mankind, have been at times renewed under the promptings of naval ambition and commercial avarice. In the seventeenth century England, by the Mare Clausum of the celebrated and learned Selden, put forth a pretension to municipal jurisdiction to the four seas adjacent to the British Isle. Britain, from time to time, has put forth this absurd claim by her writers and statesmen, sometimes plainly and frankly as being within reach of her floating cannon and within control of her ships of war. At others, prescription and presumed consent of European nations are set up as the ground of this fictitious right. During the war with Napoleon, Britain asserted a more extensive authority over the high seas, and in effect claimed a municipal jurisdiction over the Atlantic, the Mediterranean and the Baltic, and in 1806, ’7 and ’8, by orders in council and by act of Parliament, she assumed a legislative control over the com
merce of neutral nations in those seas. She legislated over them as though they had been her colonial subjects or dwellers in the British Isle. One of those orders in council of November 11th, 1807, says: “His Majesty is therefore pleased, by and with the advice of his privy counsel, to order, and it is hereby ordered, that all the ports and places of France and her allies, or of any other country at war with his Majesty, and all other ports and places in Europe, from which, although not at war with his Majesty, the British flag is excluded, and all ports or places in the colonies belonging to his Majesty's enemies, shall, from henceforth, be subject to the same restrictions in point of trade and navigation, with the exceptions hereinafter mentioned, as if the same were actually blockaded by his Majesty's naval forces in the most strict and rigorous manner.” This order in council declared that “every vessel trading from or to the said countries or colonies, together with goods and merchandize on board, and all articles of the produce or manufacture of the said countries or colonies, shall be captured and condemned as prize to the captors.” One of the exceptions above referred to, allowed certain neutral trade to “some port or place in Europe belonging to his Majesty,” coming from certain ports of his Majesty's enemies. By these orders in council