sary to the security of the State whose interior waters thus form the channel of communication between different seas, the navigation of which is free to other nations. Thus the passage of the strait may remain free to the private merchant vessels of those nations having a right to navigate the seas it connects, whilst it is shut to all foreign armed ships in time of peace. The Black danelles. § 182. So long as the shores of the Black Sea were exclusively possessed by Turkey, that sea might with Sea, the Bosphorus, propriety be considered a mare clausum; and there seems and the Darno 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 the 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 recognized 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. (a) The right of foreign vessels to navigate the interior waters of Turkey, which connect the Black Sea with the Mediterranean, does not extend to ships of war. The ancient rule of the Ottoman Empire, established for its own security, by which the entry of foreign vessels of war into the canal of Constantinople, including the strait of the Dardanelles and that of the Black Sea, has been at all times prohibited, was expressly recognized by the treaty concluded at London the 13th July, 1841, between the five great European powers and the Ottoman Porte. By the first article of this treaty, the Sultan declared his firm resolution to maintain, in future, the principle invariably established as the ancient rule of his empire; and that so long as the Porte should be at peace, he would admit no foreign vessel of war into the said straits. The five powers, on the other hand, engaged to respect this determination of the Sultan, and to conform to the above-mentioned principle. (a) Martens, Nouveau Recueil, tom. viii. p. 143. By the second article it was provided, that, in declaring the inviolability of this ancient rule of the Ottoman Empire, the Sultan reserved the faculty of granting, as heretofore, firmans allowing the passage to light armed vessels employed according to usage, in the service of the diplomatic legations of friendly powers. By the third article, the Sultan also reserved the faculty of notifying this treaty to all the powers in amity with the Sublime Porte, and of inviting them to accede to it. (b)111 Danish over the Sound and the Belts. § 183. The supremacy asserted by the King of Densovereignty mark over the Sound and the two Belts which form the outlet of the Baltic Sea into the ocean, is rested by the Danish public jurists upon immemorial prescription, sanctioned by a long succession of treaties with other powers. According to these writers, the Danish claim of sovereignty has been exercised from the earliest times beneficially for the protection of commerce against pirates and other enemies by means of guardships, and against the perils of the sea by the establishment of lights and land-marks. The Danes continued for several centuries masters of the coasts on both sides of the Sound, the province of Scania not having been ceded to Sweden until the treaty of Roeskild, in 1658, confirmed by that of 1660, in which it was stipulated that Sweden should never lay claim to the Sound tolls in consequence of the cession, but should content herself with a compensation for keeping up the light-houses on the coast of Scania. The exclusive right of Denmark was recognized as early as 1368, (b) Wheaton's Hist. Law of Nations, 583-585. [111 The treaty of Paris of 1856, between Great Britain, France, Russia, Prussia, Austria, Sardinia, and Turkey, re-establishes the principles of the Convention of 1841, with some changes. It respects the right of Turkey to exclude all vessels of war from passing the Dardanelles and Bosphorus when she is at peace, and to make an exception in favor of light armed vessels used in diplomatic service, by special firmans. It "neutralizes" the Black Sea, by declaring it open to the commerce of all nations, and by excluding from it vessels of war of all nations, whether possessing territory on its waters or not, and by prohibiting to Russia and Turkey the maintenance of military-maritime arsenals in its ports. It allows the passage of light armed vessels in diplomatic service, and gives to each of the seven contracting powers the right to keep two light armed vessels at the mouth of the Danube, to insure the execution of the regulations made by or under the treaty; and to Russia and Turkey, the right to maintain a limited number of small armed steamers for coast-service. By the treaty of the 25th February, 1862, between the United States and Turkey, the United States are placed, or rather continued, on the footing of the most favored nations with regard to passing the Dardanelles and Bosphorus, and to trading in the Black Sea. U. S. Laws, xii. 271.]—D. by a treaty with the Hanseatic republies, and by that of 1490, with Henry VII. of England, which forbids English vessels from passing the Great Belt as well as the Sound, unless in case of unavoidable necessity; in which case they were to pay the same duties at Wyborg as if they had passed the Sound at Elsinore. The treaty concluded at Spire, in 1544, with the Emperor Charles V., which has commonly been referred to as the origin, or at least the first recognition, of the Danish claim to the Sound tolls, merely stipu lates, in general terms, that the merchants of the Low Countries frequenting the ports of Denmark should pay the same duties as formerly. The treaty concluded at Christianople, in 1645, between Denmark and the United Provinces of the Netherlands, is the earliest convention with any foreign power by which the amount of duties to be levied on the passage of the Sound and Belts was definitely ascertained. A tariff of specific duties on certain articles therein enumerated was annexed to this treaty, and it was stipulated that "goods not mentioned in the list should pay, according to mercantile usage, and what has been practised from ancient times." A treaty was concluded between the two countries at Copenhagen, in 1701, by which the obscurity in that of Christianople as to the non-specified articles, was meant to be cleared up. By the third article of the new treaty it was declared that as to the goods not specified in the former treaty," the Sound duties are to be paid according to their value;" that is, they are to be valued according to the place from whence they come, and one per centum of their value to be paid. These two treaties of 1645 and 1701, are constantly referred to in all subsequent treaties, as furnishing the standard by which the rates of these duties are to be measured as to privileged nations. Those not privileged, pay according to a more ancient tariff for the specified articles, and one and a quarter per centum on unspecified articles. (a) Conven tion of 1841. § 184. By the arrangement concluded at London and Elsinore, in 1841, between Denmark and Great Britain, the tariff of duties levied on the passage of the Sound and Belts was revised, the duties on non-enumerated articles were made specific, and others reduced in amount, whilst some of the abuses (a) Schlegel, Staats-Recht des Königreichs Dänemark, 1 Th. Kap. 7, §§ 27-29. Wheaton, Hist. Law of Nations, 158-161. which had crept into the manner of levying the duties in general were corrected. The benefit of this arrangement, which is to subsist for the term of ten years, has been extended to all other nations privileged by treaty. (a)112 Qu WheBaltic Sea sum? § 185. The Baltic Sea is considered by the maritime ther the powers bordering on its coasts as mare clausum against is mare clau- the exercise of hostilities upon its waters by other States, whilst the Baltic powers are at peace. This principle was proclaimed in the treaties of armed neutrality in 1780 and 1800, and by the treaty of 1794, between Denmark and Sweden, guarantying the tranquillity of that sea. In the Russian declaration of war against Great Britain of 1807, the inviolability of that sea and the reciprocal guaranties of the powers that border upon it (guaranties said to have been contracted with the knowledge of the British government) were stated as aggravations of the British proceedings in entering the Sound and attacking the Danish capital in that (a) Scherer, Der Sundzoll, seine Geschichte, sein jetziger Bestand, und seine staats-rechtlich-politische Lösung, Beilage Nr. 8-9. [112 The Sound Dues. - The subject of the Sound Dues was put at rest by the treaty of 1857, to which the five powers the powers on the Baltic and North Sea — were parties. It avoids a recognition of a right in Denmark to levy duties on passing vessels. It makes a compensation to Denmark in a capital sum, the payment of which is put on the ground of indemnity for maintaining lights and buoys, which Denmark stipulates to maintain, and not for her renunciation of the right to levy duties; and Denmark agrees to levy no further duties, without admitting that the levying of them theretofore had been objectionable. The United States declined to take part in this convention, on the ground that it might involve questions of purely European policy, and because the invitation from Denmark seemed to assume her right to levy the duties, and to receive compensation for abstaining therefrom; and made a separate treaty with Denmark, of the 11th April, 1857, by which Denmark declares the Baltic open to American vessels, and stipulates to maintain buoys and lights, and to furnish pilots, if desired, in consideration of which the United States agree to pay $393,011. (Annual Reg. 1857, p. 12-40; and 1858, p. 830. U. S. Laws, xi. 719. Martens, xvi. 331-345.) For a history of the progress of this subject between 1830 and the adoption of these treaties, see Wheaton's Hist. Law of Nations, 158. Webster's Works, vi. 406. Ex. Doc. 108 1st Sess. 33d Cong.: Message of President Pierce, December, 1854. Tolls on the Elbe. - By the treaty of Hanover of 1861, the tolls laid by Hanover on vessels navigating the Elbe, known as the Stade or Brunshausen tolls, which are said to have been levied for eight hundred years, were abolished, as against the parties to the treaty, by a capitalization, on the principle of a fifteen-and-a-half-years' purchase at their average amounts, for 3,100,000 thalers, of which Great Britain paid one-third, Hamburg one-third, and the residue was to be paid by the other powers concerned. The United States made a treaty with Hanover, of 6th November, 1861, by which these tolls are abolished as to American vessels for the sum of 63,353 thalers. U. S. Laws, xii. 253 t.] — D. year. In the British answer to this declaration it was denied that Great Britain had at any time acquiesced in the principles upon which the inviolability of the Baltic is maintained; however she might, at particular periods, have forborne, for special reasons influencing her conduct at the time, to act in contradiction to them. Such forbearance never could have applied but to a state of peace and real neutrality in the north; and she could not be expected to recur to it after France had been suffered, by the conquest of Prussia, to establish herself in full sovereignty along the whole coast from Dantzic to Lubeck. (a) the seas. § 186. The controversy, how far the open sea or main Controocean, beyond the immediate vicinity of the coasts, may versy respecting the be appropriated by one nation to the exclusion of others, dominion of which once exercised the pens of the ablest and most learned European jurists, can hardly be considered open at this day. Grotius, in his treatise on the Law of Peace and War, hardly admits more than the possibility of appropriating the waters immediately contiguous, though he adduces a number of quotations from ancient authors, showing that a broader pretension has been sometimes sanctioned by usage and opinion. But he never intimates that any thing more than a limited portion could be thus claimed; and he uniformly speaks of "pars," or "portus maris,' always confining his view to the effect of the neighboring land in giving a jurisdiction and property of this sort. (a) He had previously taken the lead in maintaining the common right of mankind to the free navigation, commerce, and fisheries of the Atlantic and Pacific Oceans, against the exclusive claims of Spain and Portugal, founded on the right of previous discovery, confirmed by possession and the papal grants. The treatise De Mare Libero was published in 1609. The claim of sovereignty asserted by the kings of England over the British seas was supported by Albericus Gentilis in his Advocatio Hispanica in 1613. In 1635, Selden published his Mare Clausum, in which the general principles maintained by Grotius are called in question, and the claim of England more fully vindicated than by Gentilis. The first book of Selden's celebrated treatise is devoted to the proposition that the sea may be made property, which he attempts to show, not by reasoning, but by collecting a multitude of quotations from ancient authors, (a) Annual Register, xlix. State Papers, 773. |