tion of existing treaties in respect to the doctrine of headlands and bays. "I need scarcely observe to you that an extension of the headland doctrine, by making territorial all bays situated within promontories twelve miles apart instead of six, would affect bodies of water now deemed to be high seas and whose use is the subject of existing conventional stipulations." Mr. Olney, Sec. of State, to Mr. de Weckherlin, Dutch min., Feb. 15, 1896, The inquiry of the Dutch minister referred to the discussion of the ques- See, also, Mr. Olney, Sec. of State, to Mr. Dupuy de Lome, Spanish min., 8. BAYS. § 153. "The essential facts are, That the river Delaware takes its rise within the limits of the United States; Delaware Bay. "That, in the whole of its descent to the Atlantic Ocean, it is covered on each side by the territory of the United States; "That, from tide water, to the distance of about sixty miles from the Atlantic Ocean, it is called the river Delaware; "That, at this distance from the sea, it widens and assumes the name of the Bay of Delaware, which it retains to the mouth; "That its mouth is formed by the capes Henlopen and May; the former belonging to the State of Delaware, in property and jurisdiction, the latter to the State of New Jersey; "That the Delaware does not lead from the sea to the dominions of any foreign nation; "That, from the establishment of the British provinces on the banks of the Delaware to the American Revolution, it was deemed the peculiar navigation of the British Empire; "That, by the treaty of Paris, on the third day of September, 1783, his Britannic Majesty relinquished, with the privity of France, the sovereignty of those provinces, as well as of the other provinces and colonies; "And that the Grange was arrested in the Delaware, within the capes, before she had reached the sea, after her departure from the port of Philadelphia. "It is a principle, firm in reason, supported by the civilians, and tacitly approved in the document transmitted by the French minister, that, to attack an enemy in a neutral territory, is absolutely unlawfui. "Hence the inquiry is reduced to this simple form, whether the place of seizure was in the territory of the United States? "From a question originating under the foregoing circumstances, is obviously and properly excluded every consideration of a dominion over the sea. The solidity of our neutral right does not depend, in this case, on any of the various distances claimed on that element by different nations possessing the neighboring shore; but if it did. the field would probably be found more extensive, and more favorable to our demand, than is supposed by the document above referred to. For the necessary or natural law of nations, unchanged as it is, in this instance, by any compact or other obligation of the United States, will, perhaps, when combined with the treaty of Paris in 1783, justify us in attaching to our coasts an extent into the sea beyond the reach of cannon shot. "In like manner is excluded every consideration, how far the spot of seizure was capable of being defended by the United States. For, although it will not be conceded that this could not be done, yet will it rather appear, that the mutual rights of the States of New Jersey and Delaware, up to the middle of the river, supersede the necessity of such an investigation. "No; the corner stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the sea. "The high ocean, in general, it is true, is unsusceptible of becoming property. It is a gift of nature, manifestly destined for the use of all mankind; inexhaustible in its benefits; not admitting metes and bounds. But rivers may be appropriated, because the reverse is their situation. Were they open to all the world, they would prove the inlets of perpetual disturbance and discord; would soon be rendered barren by the number of those who would share in their products; and moreover they may be defined. "A river, considered merely as such, is the property of the people through whose lands it flows, or of him under whose jurisdiction that people is.'-Grot., b. 2, c. 2, s. 12. Rivers might be held in property; though neither where they rise, nor where they discharge themselves, be within our territory, but they join to water above and below, or the sea. It is sufficient for us that the larger portion of water, that is, the sides, is shut up in our banks, and that the river, in respect to our land, is itself small and insignificant.-Grot., b. 2, c. 3, s. 7; and Barbeyrac, in his note, subjoins, that neither of these is necessary. "Rivers may be the property of whole states.'-Puff., b. 3, c. 3, s. 4. "To render a thing capable of being appropriated, it is not strictly necessary that we should enclose it, or be able to enclose it, within artificial bounds, or such as are different from its own substance; it is sufficient, if the compass and extent of it can be any way determined. And therefore Grotius hath given himself a needless trouble, when, to prove rivers capable of property, he useth the argument, that, although they are bounded by the land at neither end, but united to the other rivers or the sea, yet it is enough that the greater part of them that is, their sides-are enclosed.'-Puff., b. 4, c. 5, s. 3. 666 When a nation takes possession of a country in order to settle there, it possesses everything included in it, as lands, lakes, rivers,' &c.-Vattel, b. 1, c. 22, s. 266. "To this list might be added Bynkershoek and Selden. But the dissertation of the former, de dominio maris, cannot be quoted with advantage in detachment; and the authority of the latter, on this head, may, in the judgment of some, partake too much of affection for the hypothesis of mare clausum. As Selden, however, sinks in influence on this question, so must Grotius rise, who contended for the mare liberum; and his accurate commentator, Rutherforth, confirms his principles in the following passage: 'A nation, by settling upon any tract of land, which at the time of such settlement had no other owner, acquires, in respect of all other nations, an exclusive right of full or absolute property, not only in the land, but in the waters likewise that are included within the land, such as rivers, pools, creeks, or bays. The absolute property of a nation, in what it has thus seized upon, is its right of territory.'-2 Ruth., b. 2, c. 9, s. 6. 66 Congress, too, have acted on these ideas, when, in their collection laws, they ascribe to a State the rivers wholly within that State. "It would seem, however, that the spot of seizure is attempted to be withdrawn from the protection of these respectable authorities, as being in the Bay of Delaware, instead of the river Delaware. "Who can seriously doubt the identity of the river and bay of Delaware? How often are different portions of the same stream denominated differently? This is sometimes accidental; sometimes, for no other purpose than to assist the intercourse between man and man, by easy distinctions of space. Are not this river and this bay fed by the same springs from the land, and the same tides from the ocean? Are not both doubly flanked by the territory of the United States? Have any local laws, at any time, provided variable arrangements for the river and the bay? Has not the jurisdiction of the contiguous States been exercised equally on both? "But suppose that the river was dried up, and the bay alone remained, Grotius continues the argument of the 7th section, of the 3d chapter, of the 2d book above cited, in the following words: "By this instance it seems to appear, that the property and domin H. Doc. 551—47 ion of the sea might belong to him, who is in possession of the lands on both sides, though it be open above, as a gulf, or above and below, as a strait; provided it is not so great a part of the sea, that, when compared with the land on both sides, it can not be supposed to be some part of them. And now, what is thus lawful to one king or people, may be also lawful to two or three, if they have a mind to take possession of a sea, thus enclosed within their lands; for it is in this manner that a river, which separates two nations, has first been possessed by both, and then divided.' 66.6 The gulfs and channels, or arms of the sea, are, according to the regular course, supposed to belong to the people with whose lands they are encompassed.'-Puff., b. 4, c. 5, s. 8. “Valin, in b. 5, tit. 1, p. 685, of his commentary on the marine ordonnance of France, virtually acknowledges that particular seas may be appropriated. After reviewing the contest between Grotius and Selden, he says: S'il (Selden) s'en fût donc tenu là, ou plutôt s'il eût distingué l'océan des mers particulieres, et même dans l'océan l'étendue de mer qui doit être censée appartenir aux souverains des côtes qui en sont baignées, sa victoire eût été complette.' "These remarks may be enforced by asking, What nation can be injured in its rights, by the Delaware being appropriated to the United States? And to what degree may not the United States be injured, on the contrary ground? It communicates with no foreign dominion; no foreign nation has, ever before, exacted a community of right in it, as if it were a main sea; under the former and present governments, the exclusive jurisdiction has been asserted; by the very first collection law of the United States, passed in 1789, the county of Cape May, which includes Cape May itself, and all the waters thereof, theretofore within the jurisdiction of the State of New Jersey, are comprehended in the district of Bridgetown. The whole of the State of Delaware, reaching to Cape Henlopen, is made one district. Nay, unless these positions can be maintained, the bay of Chesapeake, which, in the same law, is so fully assumed to be within the United States, and which, for the length of the Virginia territory, is subject to the process of several counties to any extent, will become a rendezvous to all the world, without any possible control from the United States. Nor will the evil stop here. It will require but another short link in the process of reasoning, to disappropriate the mouths of some of our most important rivers. If, as Vattel inclines to think in the 294th section of his first book, the Romans were free to appropriate the Mediterranean, merely because they secured, by one single stroke, the immense range of their coast, how much stronger must the vindication of the United States be, should they adopt maxims for prohibiting foreigners from gaining, without permission, access into the heart of their country. "This inquiry might be enlarged by a minute discussion of the practice of foreign nations, in such circumstances. But I pass it by; because the United States, in the commencement of their career, ought not to be precipitate in declaring their approbation of any usages, (the precise facts concerning which we may not thoroughly understand) until those usages shall have grown into principles, and are incorporated into the law of nations; and because no usage has ever been accepted, which shakes the foregoing principles. "The conclusion then is, that the Grange has been seized on neutral ground. If this, be admitted, the duty arising from the illegal act is restitution." Opinion of Edmund Randolph, At. Gen., May 14, 1793, on the case of the "The State of Delaware has uniformly claimed the sole and exclusive The Bristol Channel is an arm of the sea dividing England from Wales. Beginning at the river Severn, it attains, in Bristol Channel. its decent of more than 90 miles, a considerable width-much greater than that of Conception Bay, in Newfoundland. In 1858 certain persons, said to be American citizens, were indicted in the county of Glamorgan for the offence of felonious wounding, committed on an American vessel in the Penarth Roads, in Bristol Channel, three-quarters of a mile from the coast of Glamorganshire, at a spot never left dry by the tide, but within a quarter of a mile from land which is so left dry. The place in question was between Glamorganshire and the Flat Holms, an island treated as part of the county of Glamorgan, the ship being at the time two miles from the island on the inside. It was about ten miles from the opposite shore of Somersetshire, and 90 miles from the Roads to the mouth of the channel. It was held that the part of the sea where the vessel lay was within the body of the county of Glamorgan. Cockburn, C. J., delivering the opinion of the court, said: "The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales, of the county of Somerset on the one side and the county of Glamorgan on the other. We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holms, between which and the shore |