1853.-Opinion of the umpire of the London Claims Commission sitting under the Convention with Great Britain of February 8, 1853, in which three marine miles is given as the extent of national jurisdiction over sea fishing.1 1853, December 30.-Treaty of boundary, cession of territory, etc., with Mexico.2 ARTICLE 1. The Mexican Republic agrees to designate the following as her true limits with the United States for the future: Retaining the same dividing line between the two Californias as already defined and established, according to the 5th article of the treaty of Guadalupe Hidalgo, the limits between the two republics shall be as follows: Beginning in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, as provided in the fifth article of the treaty of Guadalupe Hidalgo; thence, as defined in the said article, up the middle of that river. . . . 1355, January 13.-Award of the tribunal in the case of the "Washington," arbitration with Great Britain." Bates, Umpire: The schooner Washington was seized by the revenue schooner Julia, Captain Darby, while fishing in the Bay of Fundy ten miles from the shore, on the 10th of May 1843, on the charge of violating the treaty of 1818. She was carried to Yarmouth, Nova Scotia, and there decreed to be forfeited to the crown by the judge of the vice admiralty court, and with her stores ordered to be sold. The own ers of the Washington claim for the value of the vessel and appurtenances, outfits, and damages, $2,483, and for eleven years' interest, $1,638, amounting together to $4,121. By the recent reciprocity treaty, happily concluded between the United States and Great Britain, there seems no chance for any future disputes in regard to the fisheries. It is to be regretted that in that treaty provisions was not made for settling a few small claims, of no importance in a pecuniary sense, which were then existing, but as they have not been settled they are now brought before this commission. The Washington, fishing schooner, was seized, as before stated, in the Bay of Fundy, ten miles from the shore, off Annapolis, Nova Scotia. 1 See ante, p. 604. 2 Malloy, vol. 1, p. 1121. 3 Moore, International Arbitrations, vol. 4, p. 4342; Sen. Ex. Doc. 103, 34th Cong., 1st sess., pp. 55, 184. It will be seen by the treaty of 1783, between Great Britain and the United States, that the citizens of the latter, in common with the subjects of the former, enjoyed the right to take and cure fish on the shores of all parts of Her Majesty's dominions in America used by British fishermen; but not to dry fish on the Island of Newfoundland, which latter privilege was confined to the shores of Nova Scotia in the following words: "And American fishermen shall have liberty to dry and cure fish on any of the unsettled bays, harbors, and creeks of Nova Scotia, but so soon as said shores shall become settled it shall not be lawful to dry or cure fish at such settlements without previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground." The treaty of 1818 contains the following stipulations in relation to the fishery: Whereas differences have arisen respecting the liberty claimed by the United States to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed that the inhabitants of the United States. shall have, in common with the subjects of His Britannic Majesty, the liberty to fish on certain portions of the southern, western, and northern coast of Newfoundland, and also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly indefinitely along the coast, and that American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of said described coasts until the same become settled and the United States renounce the liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included in the abovementioned limits: Provided, however, That the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them. The question turns, so far as relates to the treaty stipulations, on the meaning given to the word " bays " in the treaty of 1783. By that treaty the Americans had no right to dry and cure fish on the shores and bays of Newfoundland, but they had that right on the coast, bays, harbors, and creeks of Nova Scotia; and as they must land to cure fish. on the shores of the bays, and creeks, they were evidently admitted to the shores of the bays, etc. By the treaty of 1818 the same right is granted to cure fish on the coasts, bays, etc., of Newfoundland, but the Americans relinquished that right and the right to fish within three miles of the coasts, bays, etc., of Nova Scotia. Taking it for granted that the framers of the treaty intended that the word "bay" or "bays" should have the same meaning in all cases, and no mention being made of headlands, there appears no doubt that the Washington, in fishing ten miles from the shore, violated no stipulations of the treaty. It was urged on behalf of the British Government that by coasts, bays, etc., is understood an imaginary line, drawn along the coast from headland to headland, and that the jurisdiction of Her Majesty extends three marine miles outside of this line; thus closing all the bays on the coast or shore, and that great body of water called the Bay of Fundy against Americans and others, making the latter a British bay. This doctrine of headlands is new, and has received a proper limit in the convention between France and Great Britain of 2d August 1839, in which it is agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland. The Bay of Fundy is from 65 to 75 miles wide and 130 to 140 miles long. It has several bays on its coast. Thus the word bay, as applied to this great body of water, has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume the sovereignty. One of the headlands of the Bay of Fundy is in the United States, and ships bound to Passamaquoddy must sail through a large space of it. The islands of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands, as represented in all geographies, are situate in the Atlantic Ocean. The conclusion is, therefore, in my mind irresistible that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word as used in the treaties of 1783 and 1818. The owners of the Washington, or their legal representatives, are therefore entitled to compensation, and are hereby awarded not the amount of their claim, which is excessive, but the sum of three thousand dollars, due on the 15th January, 1855. 1859, December 28.-An Act for revising and consolidating the General Statutes of the Commonwealth [Massachusetts].' PART I, TITLE I, CHAPTER 1, SECTION 1. The territorial limits of this commonwealth extend one marine league from its seashore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width, between its headlands, a straight line 1 The General Statutes of the Commonwealth of Massachusetts, Boston, 1860, p. 43. from one headland to the other is equivalent to the shore line. The boundaries of counties bordering on the sea extend to the line of the state as above defined. The jurisdiction of counties separated by waters within the jurisdiction of the state is concurrent upon and over such waters. 1862, August 4.-Secretary of State Seward to the Secretary of the Navy, This Government adheres to, recognizes, and insists upon the principle that the maritime jurisdiction of any nation covers a full Tarine league from its coast, and that acts of hostility or of authority within a marine league of any foreign country by naval officers of the United States are strictly prohibited, and will bring upon such officer the displeasure of this Government. 1862, December 16.-Secretary of State Seward to Mr. Tassara, Span!ish Minister.2 The undersigned, Secretary of State of the United States, having taken the instructions of the President, will perform the duty of answering the note which was addressed to the undersigned on the 8th of October by His Excellency Señor Gabriel G. Tassara, minister plenipotentiary of Her Catholic Majesty the Queen of Spain. In that paper Mr. Tassara informs the undersigned that Her Catholic Majesty's Government is surprised that a United States naval officer cruising in the waters of Cuba has fallen into the error of claiming that the jurisdictional belt of the island of Cuba does not extend beyond three miles, whereas the Government has fixed the limit at six miles on the open sea. Mr. Tassara proceeds under his. instructions to say that in fixing that limit Her Catholic Majesty's Government has conformed to all the rules of the law of nations. Mr. Tassara next observes that the principle which is generally recognized is that maritime jurisdiction extends to the range of a cannon ball, and that even abiding by this principle, which every nation has modified at its will, the belt fixed by Spain goes no farther than the modern improvements in artillery. Mr. Tassara, pursuing the subject, remarks that no international compact is required for the determination or recognition of a jurisdiction which is not at all excessive, but a special treaty might be necessary for making an exception in favor of any nation and no such treaty exists between 1 Moore, International Law Digest, vol. 1, p. 705. Spain and the United States. Mr. Tassara adds that the United States are so much the more obliged to respect this principle as he thinks it must be evident to the undersigned that the jurisdictional belt claimed by the United States in some cases extends many miles farther than that designated by Spain. Mr. Tassara concludes with informing the undersigned that Her Catholic Majesty's Government trusts that the United States will cause the commanding officers of their naval forces in the Gulf to understand that the jurisdictional belt of the island of Cuba extends. to six miles on the open sea, and that only beyond that limit is it allowed to them to exercise any act which may be in opposition to the rights of Spanish authority, and that thus all misunderstanding will cease, and the good relations of the two countries will not be liable to be disturbed by causes which ought entirely to disappear. The undersigned would observe, in the first place, that there are two principles bearing on the subject which are universally admitted, namely, first, that the sea is open to all nations, and secondly, that there is a portion of the sea adjacent to every nation over which the sovereignty of that nation extends to the exclusion of every other political authority. A third principle bearing on the subject is also well established, namely, that this exclusive sovereignty of a nation, thus abridging the universal liberty of the seas, extends no farther than the power of the nation to maintain it by force, stationed on the coast, extends. This principle is tersely expressed in the maxim Terræ dominium 1 finitur ubi finitur armarum vis. But it must always be a matter of uncertainty and dispute at what point the force of arms exerted on the coast can actually reach. The publicists rather advanced towards than reached a solution when they laid down the rule that the limit of the force is the range of a cannon ball. The range of a cannon ball is shorter or longer according to the circumstances of projection, and it must be always liable to change with the improvements of the science of ordnance. Such uncertainty upon a point of jurisdiction or sovereignty would be productive of many and endless controversies and conflicts. A more practical limit of national jurisdiction upon the seas was indispensably necessary, and this was found, as the undersigned thinks, in fixing the limit at three miles from the coast. This limit was early proposed by the publicists of all maritime nations. While it is not insisted that all nations have accepted or acquiesced and bound themselves to abide by this rule when applied to themselves, yet three points involved in the subject are insisted upon by the United States: First, that this limit has been generally recognized by nations; second, that no other general rule has been accepted; and 1 |