and to trade with the inhabitants and occupiers of the same. These rights have been peaceably exercised ever since the date of that Convention; that is, for a period of nearly forty years. Under that Convention, valuable British interests have grown up in those countries. It is admitted that the United States possess the same rights, although they have been exercised by them only in a single instance, and have not, since the year 1813, been exercised at all; but beyond those rights they possess

none.

"In the interior of the territory in question, the subjects of Great Britain have had, for many years, numerous settlements and trading-posts; several of these posts are on the tributary waters of the Columbia; several upon the Columbia itself; some to the northward, and others to the southward of that river. And they navigate the Columbia as the sole channel for the conveyance of their produce to the British stations nearest to the sea, and for its shipment thence to Great Britain; it is also by the Columbia and its tributary streams that these posts and settlements receive their annual supplies from Great Britain.

"To the interests and establishments which British industry and enterprise have created, Great Britain owes protection; that protection will be given, both as regards settlement, and freedom of trade and navigation, with every attention not to infringe the coordinate rights of the United States; it being the desire of the British government, so long as the joint occupancy continues, to regulate its own obligations by the same rules which govern the obligations of every other occupying party.” (a)

§ 175. By the 3d article of the Convention between the United States and Great Britain, in 1818, it was "agreed, that any country that may be claimed by either party, on the north-west coast of America, westward of the Stony Mountains, shall, together with its harbors, bays, and creeks, and the navigation of all rivers within the same, be free and open, for the term of ten years from the date of the signature of the present Convention, to the vessels, citizens, and subjects of the two powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the (a) Congress. Documents, 20th Cong. and 1st Sess. No. 199. Greenhow, Proofs and Illustrations, H.

claims of any other power or state to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences amongst themselves."

In 1827, another Convention was concluded between the two parties, by which it was agreed:

"ART. 1. All the provisions of the third article of the Convention concluded between the United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland, on the 20th of October, 1818, shall be, and they are, hereby, further indefinitely extended and continued in force, in the same manner as if all the provisions of the said article were herein specifically recited.

ART. 2. It shall be competent, however, to either of the contracting parties, in case either should think fit at any time after the 20th of October, 1828, on giving due notice of twelve months to the other contracting party, to annul and abrogate this Convention; and it shall, in such case, be accordingly entirely annulled and abrogated, after the expiration of the said term of notice.

"ART. 3. Nothing contained in this Convention, or in the third article of the Convention of the 20th of October, 1818, hereby continued in force, shall be construed to impair, or in any manner affect the claims which either of the contracting parties may have to any part of the country westward of the Stony or Rocky Mountains." (a)

§ 176. The notification provided for by the Convention having been given by the American government, new discussions took place between the two governments, which were terminated by a treaty concluded at Washington, in 1846.103 By the first article of that treaty it was stipulated, that from the point on the 49th parallel of north latitude, where the boundary laid down in existing treaties and conventions between the United States and Great Britain terminates, the line of boundary shall be continued westward along the said 49th parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly through the middle of the said channel, and of Fucas Straits, to the Pacific Ocean; provided, however, that the navigation of the whole of the said channel and straits, south of the 49th parallel of north latitude, remain free (a) Elliot's American Diplomatic Code, i. 282, 330. [108 U. S. Laws and Treaties, ix. 109, 869.]-D.

and open to both parties. The second article stipulated for the free navigation of the Columbia River by the Hudson's Bay. Company, and the British subjects trading with them, from the 49th degree of north latitude to the ocean. The third article provided that the possessory rights of the Hudson's Bay Company, and of all other British subjects, to the territory south of the parallel of the 49th degree of north latitude, should be respected.10

Maritime

jurisdic

§ 177. The maritime territory of every State extends to the ports, harbors, bays, mouths of rivers, and adjacent territorial parts of the sea inclosed by headlands, belonging to the tion. 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.105 Within these limits, its rights of property and ter

[104 Guano Islands. -In 1856, the United States adopted a general system respecting the discovery and use of guano islands, set forth in the Act of Congress, of 18th August, 1856. (U. S. Laws, xi. 119.) Its provisions are applicable only to "discoveries" that had been made or might thereafter be made, and "peaceful possession" taken, of "deposits of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government." It provides that citizens of the United States, discovering and taking peaceful possession of such deposits, shall be protected by the government in the use of the same for the purpose of removing guano; but it requires them to sell or ship the guano to citizens of the United States only, and at rates fixed by statute. It extends over these places the criminal and penal laws of the United States applicable to vessels of the United States at sea. It provides that nothing in the act shall be construed as obligatory on the United States to retain possession of such places after the guano shall have been removed. In fact, it secures to citizens the usufruct of unoccupied guano deposits which they have discovered and peacefully occupied, beyond the jurisdiction of any foreign State, upon certain terms as to the sale and exportation of the guano; and stipulates for nothing beyond the usufruct while the guano remains. Under this act, the United States had questions with Venezuela as to Aves Rock, and with Hayti as to Navaza, -islands lying off the coasts of those countries respectively. The former was settled by a payment of an indemnity by Venezuela. Ex. Doc. No. 25, 34th Cong. 3d Sess.; and No. 37, 36th Cong. 1st Sess.] -D.

[15 Territorial Waters. - Grotius extends territorial rights over as much of the sea as can be defended from the shore. Lib. ii. cap. 3, §§ 13, 14. The argument is, that the limit of exclusive jurisdiction should be the limit of the power of regular and effective instruments of war, used on and from the lands and territorial possessions of a nation. Hautefeuille adheres to the rule of the cannon-shot; but contends, that, in case of small bays and gulfs, the line from which the cannon-shot should be measured is a line drawn from headland to headland. He does not, however, contend for such a line in case of bays so large as to be parts of a public ocean. (Droits des Nat. Neutr. i. 89, 239.) Bynkershoek defines the limits thus: "Terræ potestas finitur, ubi

ritorial jurisdiction are absolute, and exclude those of every other nation. (a)

Extent of § 178. The term "coasts" includes the natural ap

the term coasts or shore.

pendages of the territory which rise out of the water, although these islands are not of sufficient firmness to be inhabited or fortified; but 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 recognized to be about three miles from the shore. (a) 106 In a case before

finitur armorum vis, . . . quousque tormenta exploduntur." De Dominio Maris, cap. 2. Of the same opinion are Vattel (liv. i. ch. 23, § 289), Azuni (t. i. cap. 2, § 14), Klüber (§ 130), and De Martens (Droit des Gens, § 40). Rayneval limits it to the horizon,` -an impracticable test. (Instit. liv. ii. ch. 9, § 10.) Valin contends for a line beyond soundings, ou l'on ne peut pas trouver le fond." (Comm. sur l'Ordonnance de 1681, liv. v. tit. 1.) But soundings are now had at great depths, and in many parts of midocean; and there are great irregularities in soundings, and differences in coasts in respect of shallowness. Ortolan treats this subject at great length, and comes to the conclusion that the limit (for which he adopts the phrase of Pinheiro Ferreira, ligne de respect) should be the extent to which projectiles of war can be effectively thrown from the shore, although that must be an advancing line in the improvements made by modern science. (Règl. Intern. i. ch. 8, p. 152-158, edit. of 1864.) Heffter (Europ. Völker. § 75) adopts the same reasoning, and considers the cannon-shot as the test; and that the treaties which fix upon three miles, and formerly fixed upon two miles, as the limits, are intended to define the range of artillery. See also Riquelme, Derecho Pub. Intern. i. 253. Jacobson's Sea Laws, 586-590. Tellegen, 50. Halleck's Intern. Law, 130. Emérigon, Des Assurances, ch. 12, § 19. De Cussy, Droit Marit. liv. i. tit. 2, § 40. Wildman's Intern. Law, i. 70. The treaties between England and the United States of 1818, and between England and France of 2d August, 1839, settle the limits of exclusive fishery at three marine miles. The English act, 1833, assumes the marine league as the limit of jurisdiction over the open sea.] — D.

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 3, § 10. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 8. De Dominio Maris, cap. 2. Vattel, liv. i. ch. 23, § 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. 780.

....

(a) Unde dominium maris proximi non ultra concedimus, quàm e terrâ illi imperari potest, et tamen eò usque; nulla siquidem sit ratio, cur mare, quod in alicujus imperio est et potestate, minus ejusdem esse dicamus, quàm fossam in ejus territorio. . . . . Quare omnino videtur rectius, eò potestatem terræ extendi, quousque tormenta exploduntur, eatenus quippe cùm imperare, tum possidere videmur. Loquor autem de his temporibus, quibus illis machinis utimur: alioquin generaliter dicendum esset, potestatem terræ finiri, ubi finitur armorum vis; etenim hæc, ut diximus, possessionem tuetur." Bynkershoek, de Dominio Maris, cap. 2. Ortolan, Diplomatie de la Mer, liv. ii. ch. 8.

[16 See note No. 105, ante.]—D.

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 they 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 Balize, 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 attulerit, 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. (b)107

Chambers.

§ 179. The exclusive territorial jurisdiction of the The King's British crown over the inclosed parts of the sea along the coasts of the island of Great Britain, has immemorially extended to those bays called the King's Chambers; that is, 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 Charles II. the security of British commerce was provided for, by express prohibitions against the

(b) Robinson's Adm. Rep. v. 385, (c,) The Anna.

[107 See also Halleck's Intern. Law, 130. Wildman's Intern. Law, i. 39. Ortolan, Domaine Intern. § 93. De Pistoye et Duverdy, Traité des Prises, tit. 2, ch. 1, § 1. Islands adjacent to the coast of the main land, though not formed from it by alluvium or increment, are considered as appurtenant, unless some other power has obtained title to them by some of the recognized modes of acquisition. Halleck's Intern. Law, 131. Ortolan, Regl. Intern. liv. ii. ch. 8.]-D.