« VorigeDoorgaan »
ing the straits. Let that principle be applied to the present case.
The United States and Great Britain have, between them the exclusive right of navigating the lake. The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) includes that of passing from the one to the other through the natural link. Is it reasonable or just that one of the two co-proprietors of the lakes should altogether exclude his associate from the use of a common natural boun. ty, necessary to the enjoyment of the full advantages of them? But if that vast mass of water, collected from a thousand tributary sources, in the immense reservoirs of the North American lakes, and cast by them into the Alantic ocean, through the channel of the St. Lawrence, is to be considered, in its transit through that great channel, as a river, the name which accident has conferred, and not a strait, the right of the United States to navi. gate it is believed to be, nevertheless, clearly and satisfactorily maintainable.”
The 8th Article of our treaty of 1783, with Great Britain, provides, on the above principle, that the navigation of the Mississippi should be forever free and open to the subjects of Britain and the citizens of the United States. This treaty fully established the American doctrine as Spain in 1783 owned Louisiana, embracing both banks of
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.
OF MARITIME CURTILAGE.
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 6 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 Ameri
can 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, ene. mies 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.
OF MARITIME CURTILAGE AND
FREEDOM OF THE SEAS.
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