it preferred only asserting its essential rights by measures adapted to prevent contraband trade within the chartered limits of the American Russian Company. All these grounds were contested, in point of fact as well as right, by the government of the United States, and the question became the subject of negotiation between the two countries. This negotiation was terminated by a convention signed at Petersburgh on the 5-17th of April, 1824, in which it was stipulated that the citizens and subjects of the two powers should not be disturbed in their navigation and fishery, or in the faculty of resorting to the coasts, upon points not already occupied, in any part of the Pacific Ocean, subject to the following conditions: 1. That the citizens or subjects of the two powers should not resort to any point where the other has an establishment, without special permission. 2. That neither the government nor citizens of the United States should form any establishment upon the north-west coast of America, or any of the adjacent islands to the north of 54 degrees and 40 minutes of north latitude; nor should the Russian government or subjects form any establishment south of the same parallel. But the ships of both powers, or those belonging to their citizens or subjects, may frequent the interior seas, gulfs, harbours, and creeks upon the coast, for the purpose of fishing and trading with the natives, excepting in spirituous liquors, fire-arms, other arms, and munitions of war of every description." The maritime territory of every state extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same state. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the state. Within these limits, its rights of property 4 Annual Register, vol. Ixiv. pp. 576-584. Correspondence between M. de Poletica and Mr. Adams. and territorial jurisdiction are absolute, and exclude those of every other nation." § 7. Extent of shore. The term "coasts" includes the natural appendages of the territory which rise out of the water, although these islands the term are not of sufficient firmness to be inhabited or fortified; but coasts or it does not properly comprehend all the shoals which form sunken continuations of the land perpetually covered with water. The rule of law on this subject is terræ dominium finitur, ubi finitur armorum vis; and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from the shore. In a case before Sir W. Scott (Lord Stowell) respecting the legality of a capture alleged to be made within the neutral territory of the United States, at the mouth of the river Mississippi, a question arose as to what was to be deemed the shore, since there are a number of little mud islands, composed of earth and trees drifted down by the river, which form a kind of portico to the main land. It was contended that these were not to be considered as any part of the American territory-that there were a sort of "no man's land," not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. It was argued that the line of territory was to be taken only from the Balise, which is a fort raised on made land by the former Spanish possessors. But the learned judge was of a different opinion, and determined that the protection of the territory was to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which indeed they were formed. Their elements were derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in the books of law, Quod vis fluminis de tuo prædio detraxerit, et vicino prædio at Bynkershoek, Quæst. 5 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 3, § x. Jur. Pub. lib. i. cap. 8. De Dominio Maris, cap. 2. 289. Valin, Comm. sur l'Ordonnance de la Marine, liv. v. tit. 1. Azuni, Diritto Marit. pt. i. cap. 2, art. 3, § 15. Galiani, dei Doveri dei Principi Neutrali in Tempo di Guerra, liv. i. Life and Works of Sir L. Jenkins, vol. ii. p. 780. The King's § 8. tulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Whether they were composed of earth or solid rock would not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil.6 The exclusive territorial jurisdiction of the British crown over the enclosed parts of the sea along the coasts of the island of Great Britain has immemorially extended to those bays called the King's Chambers; i. e. portions of the sea cut off by lines drawn from one promontory to another. A similar jurisdiction is also asserted by the United States over the Delaware Bay and other bays and estuaries forming portions of their territory. It appears from Sir Leoline Jenkins, that both in the reigns of James I. and of Charles II. the security of British commerce was provided for by express prohibitions against the roving or hovering of foreign ships of war so near the neutral coasts and harbours of Great Britain as to disturb or threaten vessels homeward or outward bound; and that captures by such foreign cruisers, even of their enemies' vessels, would be restored by the Court of Admiralty if made within the King's Chambers. So also the British "hovering act," passed in 1736, (9 Geo. II. cap. 35,) assumes, for certain revenue purposes, a jurisdiction of four leagues from the coasts, by prohibiting foreign goods to be transhipped within that distance without payment of duties. A similar provision is contained in the revenue laws of the United States; and both these provisions have been declared by judicial authority, in each country, to be consistent with the law and usage of nations." Such regulations can only be justified on the ground of Claim to their being essentially necessary to the security and interests contiguous portions of of the state. They are not intended to assert an exclu 6 Robinson's Adm. Reports, vol. v. p. 385 (c.) The Anna. 7 Life and Works of Sir. L. Jenkins, vol. ii. pp. 727, 728, 780. Opinion of the United States Attorney-General on the capture of the British ship Grange in the Delaware Bay, 1793. Waite's American State Papers, vol. i. p. 75. Dodson's Adm. Reports, vol. ii. p. 245. Le Louis Cranch's Reports, vol. ii. p. 187. Church v. Hubbard. Vattel, Droit des Gens, liv. i. ch. 22, § 288. sive right of sovereignty and domain over such extensive the sea for special portions of the sea. Even a claim to contiguous portions is purposes. not to be viewed with much indulgence, it is to be strictly construed, and clearly made out. "It is," says Sir W. Scott, "a claim of private and exclusive property, over a subject where a general, or at least a common, use is to be presumed; it is a claim which can only arise on portions of the sea, or on rivers flowing through different states. In the sea, out of the reach of common. shot, universal use is presumed in rivers flowing through conterminous states, a common use to the different states is presumed. Yet, in both of these, there may, by legal possibility, exist a peculiar property, excluding the universal or the common use. Portions of the sea are prescribed for; so are rivers flowing through contiguous states: the banks on one side may have been first settled, by which the possession and property may have been acquired, or cessions may have taken place upon conquests or other events. But the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established on the part of those claiming under it, in the same manner as all other legal demands are to be substantiated, by clear and competent evidence." $ 9. Claims to upon the ground of tion. Besides those bays, gulfs, straits, mouths of rivers, and estuaries which are enclosed by capes and headlands belong- portions of ing to the territory of the state, a jurisdiction and right of the sea property over certain other portions of the sea have been claimed by different nations, on the ground of immemorial prescripuse. Such, for example, was the sovereignty formerly claimed by the republic of Venice over the Adriatic. The maritime supremacy claimed by Great Britain over what are called the Narrow Seas has generally been asserted merely by requiring certain honours to the British flag in those seas, which have been rendered or refused by other nations according to circumstances, but the claim itself has never been sanctioned by general acquiescence. 8 Robinson's Adm. Reports, vol. iii. p. 339. 9 Vattel, Droit des Gens, liv. i. ch. 23, § 289. The Twee Gebroeders. The Black So long as the shores of the Black Sea were exclusively possessed by Turkey, that sea might with propriety be considered as mare clausum ; and there seems no reason to question the right of the Ottoman Porte to exclude other nations from navigating the passage which connects it with the Mediterranean, both shores of this passage being at the same time portions of the Turkish territory; but since the territorial acquisitions made by Russia, and the commercial establishments formed by her on the shores of the Euxine, both that empire and other maritime powers have become. entitled to participate in the commerce of the Black Sea, and consequently to the free navigation of the Dardanelles and the Bosphorus. This right was expressly recognised by the seventh article of the treaty of Adrianople, concluded in 1829, between Russia and the Porte, both as to Russian vessels and those of other European states in amity with Turkey.10 By the 12th article of the treaty of peace concluded on the 5th of January, 1809, between Great Britain and the Porte, it is declared that as it had "been at all times prohibited to vessels of war to enter the canal of Constantinople, that is to say in the Strait of the Dardanelles, and in that of the Black Sea; and as this ancient rule of the Ottoman Empire ought in like manner to be observed in future in time of peace towards every power whatsoever, the British court promises also to conform itself to this principle." By the treaty of alliance concluded on the 8th July, 1833, at Hoonkiar Skelessi, between Russia and Turkey, it was stipulated in favour of Russia that the Porte should shut the Dardanelles on the side of the Mediterranean against foreign armed vessels in time of war. Some complaint has been made of the partial effect of this stipulation in its operation as against other powers; but as the casus fœderis only applies to a state of war, no practical question can arise respecting it until some power at war with Russia attempts to force the passage of the Dardanelles.. Gens Moderne de l'Europe, liv. ii. ch. 1, § 42. Edinburgh Review, vol. xi. art. 1, pp. 17-19. 10 Martens, Nouveau Recueil; tom. viii. p. 143. |