from Cape Ann to Cape Cod, from Nantucket to Montauk Point, from Woolsey declared that such a claim would be "out of character for a The coastal waters, harbors, and other navigable waters of the island of Porto Rico, are waters of the United States within the meaning of sec. 10 of the river and harbor act of 1899, 30 Stat. 1151, prohibiting unauthorized obstructions to navigation in any of the waters of the United States and vesting in the Secretary of War a certain control of wharves and similar structures in ports and other waters of the United States. Knox, At.-Gen., Oct. 17, 1901, 23 Op. 551, 555. The rule of territorial waters is inapplicable to ships on the high seas; hence a ship can not draw around her and appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. The Marianna Flora, 11 Wheat. 1. It is laid down that foreign ships have a right of innocent passage through the marginal sea. Hall, Int. Law (4th ed.), 212; Rivier, Principes du Droit des Gens, I. 152. The United States, in 1897, while complaining of the action of the captain Lôme, Span. min., June 21, 1897, For. Rel. 1897, 505.) As to the case of the Alliança, see For. Rel. 1895, II. 1177-1185; and the annual message of President Cleveland of Dec. 2, 1895, For. Rel. 1895,. I. xxxiii. In a series of resolutions adopted by the Institut de Droit International, at Paris, in 1894, it was laid down (art. 5) that all ships without distinction have the right of innocent passage through the territorial sea, subject to the right of belligerents to regulate and for purposes of defense even to bar such passage, and subject also to the right of neutrals to regulate the passage of ships of war of all nationalities. As to jurisdiction over passing vessels, the following resolutions were adopted: “ART. 6. Crimes and offences, committed on foreign ships passing through territorial waters by persons on board such ships against persons or things also on board, are, as such, outside the jurisdiction. of the bordering state, unless they involve a violation of the rights or interests of the bordering state, or of its inhabitants who are neither members of the crew or passengers. "ART. 7. Ships traversing territorial waters must conform to special regulations of the bordering state in the interest or for the security of navigation and maritime police. "ART. 8. Ships of all nationalities, by the fact of being in territorial waters, unless only passing through, are subject to the jurisdiction of the bordering state. "The bordering state may continue on the high seas a pursuit begun in territorial waters, to arrest and try a ship which has committed a violation of law within the limits of those waters. In case of capture on the high seas, the fact shall be made known without delay to the state whose flag she bears. The pursuit is interrupted the moment the ship enters the territorial waters of her own or of a third country. The right of pursuit ceases when the vessel enters a port of her own or of a third power. "ART. 9. The particular situation of ships of war and of those assimilated to them is reserved.” Institut de Droit International, Annuaire (1894–95), XIII. 329. By the common law, title to the soil under tide waters, below highwater mark, unless private rights in it have been acquired by grant or prescription, is in the king, subject to the public rights of navigation and fishing. Upon the American revolution, the title to and dominion over tide waters and the lands under them vested in the several States, though certain rights were afterwards surrendered by the Constitution to the United States. The United States, on acquiring territory, whether by cession from one of the States or by treaty with a foreign country, or by discovery and settlement, takes the title and the dominion of lands below high-water mark for the benefit of the whole people, and in trust for the future States to be created out of the territory; although, while holding the country as territory, it possesses all the powers both of national and municipal government, and may grant, for appropriate purposes, titles to or rights in the soil below high-water mark. Congress, however, has not undertaken by general laws to dispose of such lands in the territories, but, unless in case of some international duty or public exigency, has left such waters and lands to the control of the States, respectively, when admitted into the Union. Hence it was held that a donation land claim, bounded by the Columbia River, acquired under the act of Congress of Sept. 27, 1850, c. 76, while Oregon was a Territory, passed no title to lands below high-water mark, as against a subsequent grant from the State of Oregon, pursuant to its statutes. Shively. Bowlby (1894), 152 U. S. 1. See also Hardin v. Jordan (1891). 140 U. S. 371; Mitchell v. Smale (1891), id. 406; Baer r. Moran Brothers Co. (1894), 153 U. S. 287; Lowndes e. Huntington (1894), 153 U. S. 1; St. Louis v. Rutz (1891), 138 U. S. 226, 250. (2) POSITION OF THE UNITED STATES. $ 145. "The President of the United States, thinking that, before it shall be finally decided to what distance from our seashores the territorial protection of the United States shall be exercised, it will be proper to enter into friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts, and relying that convenient occasions may be taken for these hereafter, finds it necessary in the meantime to fix provisionally on some distance for the present government of these questions. You are sensible that very different opinions and claims have been heretofore advanced on this subject. The greatest distance to which any respectable assent among nations has been at any time given, has been the extent of the human sight, estimated at upwards of twenty miles, and the smallest distance, I believe, claimed by any nation. whatever, is the utmost range of a cannon ball, usually stated at one sea league. Some intermediate distances have also been insisted on, and that of three sea leagues has some authority in its favor. The character of our coast, remarkable in considerable parts of it for admitting no vessels of size to pass near the shores, would entitle us, in reason, to as broad a margin of protected navigation as any nation whatever. Reserving, however, the ultimate extent of this for future deliberation, the President gives instructions to the officers acting under his authority to consider those heretofore given them as restrained for the present to the distance of one sea league or three geographical miles from the seashores. This distance can admit of no opposition, as it is recognized by treaties between some of the powers with whom we are connected in commerce and navigation, and is as little, or less, than is claimed by any of them on their own coasts. "For the jurisdiction of the rivers and bays of the United States, the laws of the several States are understood to have made provision, and they are, moreover, as being landlocked, within the body of the United States." Mr. Jefferson, Sec. of State, to Mr. Hammond, Brit. min., Nov. 8, 1793, Brit. Counter Case and Papers, Geneva Arbitration, American reprint, 553. A similar note was sent on the same day to M. Genet, the French min. ister. (Am. State Papers, For. Rel. I. 183; Wait's Am. State Papers, I. 195.) Corresponding instructions were given to the district attorneys, Nov. 10, 1793. (MS. Dom. Let.) See, also, circular of Mr. Hamilton, Secretary of the Treasury, to collectors of customs, Feb. 10, 1794, Brit. Counter Case and Papers, Geneva Arbitration, Am. reprint, 568. "The President [Mr. Jefferson, in an informal conversation] mentioned a late act of hostility committed by a French privateer near Charleston, S. C., and said we ought to assume, as a principle, that the neutrality of our territory should extend to the Gulf Stream, which was a natural boundary, and within which we ought not to suffer any hostility to be committed. Mr. Gaillard observed that on a former occasion in Mr. Jefferson's correspondence with Genet, and by an act of Congress at that period, we had seemed only to claim the usual distance of three miles from the coast; but the President replied that he had then assumed that principle because Genet, by his intemperance, forced us to fix on some point, and we were not then prepared to assert the claim of jurisdiction to the extent we are in reason entitled to; but he had taken care to reserve this subject for further consideration with a view to this same doctrine for which he now contends." Memoirs of J. Q. Adams, I. 375–376. "As to the jurisdiction exercised by the United States over the sea contiguous to its shores, all nations claim and exercise such a jurisdiction, and all writers admit this claim to be well founded; and they have differed in opinion only as to the distance to which it may extend. Let us see whether France has claimed a greater or less extent of dominion over the sea than the United Sates. Valin, the King's advocate at Rochelle, in his new Commentary on the Marine Laws of France, published first in 1761, and again by approbation in 1776, (Book V., title 1,) after mentioning the opinions of many different writers on public law on this subject, says: 'As far as the distance of two leagues the sea is the dominion of the sovereign of the neighboring coast; and that whether there be soundings there or not. It is proper to observe this method in favor of states whose coasts are so high that there are no soundings close to the shore, but this does not prevent the extension of the dominion of the sea, as well in respect to jurisdiction as to fisheries, to a greater distance by particular treaties, or the rule hereinbefore mentioned, which extends dominion as far as there are soundings, or as far as the reach of a cannon shot; which is the rule at present universally acknowledged. The effect of this dominion,' the same author says, according to the principles of Puffendorf. which are incontestable, is, that every sovereign has a right to protect foreign commerce, in his dominions, as well as to secure it from insult, by preventing others from approaching nearer than a certain dis.tance. In extending our dominion over the sea to one league, we have not extended it so far as the example of France and the other powers of Europe would have justified. They, therefore, can have no right to complain of our conduct in this respect." Hamilton, in "The Answer," Hamilton's Works, Lodge's ed., VI. 218. "Our jurisdiction . . . has been fixed (at least for the purpose of regulating the conduct of the government in regard to any events arising out of the present European war) to extend three geographical miles (or nearly three and a half English miles) from our shores; with the exception of any waters or bays which are so landlocked as to be unquestionably within the jurisdiction of the United States, be their extent what they may." Mr. Pickering, Sec. of State, to the Lieut. Governor of Virginia, Sept. 2, 1796, 9 MS. Dom. Let. 281. This letter related to a complaint of the master of the American ship Eliza that he had been captured by the British frigate Thetis within the territorial waters of the United States. The distance of the capture from land being, however, indefinitely alleged, Mr. Pickering took the ground that the Government could not "authoritatively interfere" without further evidence on the question, but that the most that could be done under the circumstances was to exhibit the papers to the British minister, who had undertaken to address the commander of the Thetis in a cautionary sense. "There could surely be no pretext for allowing less than a marine league from the shore, that being the narrowest allowance found in any authorities on the law of nations. If any nation can fairly claim a greater extent the United States have pleas which cannot be rejected; and if any nation is more particularly bound by its own example not to contest our claim, Great Britain must be so by the extent of her own claims to jurisdiction on the seas which surround her. It is hoped, at least, that within the extent of one league you will be able to obtain an effectual prohibition of British ships of war from repeating the irreg |