« PrejšnjaNaprej »
of the Navy, whom I did not see. Called also on M. Otis at his office, where I met Mr. Plumer. At the President's door I met Mr. Israel Smith and M. Gaillard, who were on the same visit as myself. The President mentioned a late act of hostility committed by a French privateer near Charleston, South Carolina, and said that 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. M. Gaillard observed that on a former occasion, in Mr. Jefferson's correspondence with Genest, and by an Act of Congress at that period, we had seemed only to claim the usual distance of 60 three miles from the coast; but the President replied that he had then assumed that principle because Genest 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 then taken care expressly to reserve the subject for future consideration, with a view to this same doctrine for which he now contends. I observed that it might be well, before we ventured to assume a claim so broad, to wait for a time when we should have a force competent to maintain it. But in the mean time, he said, it was advisable to squint at it, and to accustom the nations of Europe to the idea that we should claim it in future. The subject was not pushed any farther.
No. 11.-1806, May 17: Extract from Letter from Mr. Madison (United States Secretary of State) to Messrs. Monroe and Pinkney (Ministers Extraordinary and Plenipotentiary of the United States in London).
There remains, as an object of great importance, some adequate provision against the insults and injuries committed by British cruisers in the vicinity of our shores and harbours. These have been heretofore a topic of remonstrance, and have, in a late instance, been repeated with circumstances peculiarly provoking, as they include the murder of an American seaman within the jurisdictional limits of the United States. Mr. Monroe is in full possession of the documents explaining a former instance. Herewith will be received those relating to the late one. They not only support a just demand of an exemplary punishment of the offenders, and of indemnity for the spoliations, but call for some stipulations guarding against such outrages in future. With this view, it is proper that all armed belligerent ships should be expressly and effectually restrained from making seizures or searches within a certain distance from our coasts, or taking stations near our harbours commodious for those purposes.
In defining the distance protected against belligerent proceedings, it would not, perhaps, be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well defined path of the Gulf Stream, to expect an immunity for the space between that limit and the American shore. But at least it may be insisted that the extent of the neutral
immunity should correspond with the claims maintained by Great Britain, around her own territory. Without any particular inquiry into the extent of these, it may be observed, 1st. That the British Act of Parliament in the year 1736, 9 G. II. c. 35, supposed to be that called the Hovering Act, assumes, for certain purposes of trade, the distance of four leagues from the shores. 2d. That it appears that, both in the reign of James I, and of Charles II, the security of the commerce with British ports was provided for by express prohibitions, against the roving or hovering of belligerent ships so near the neutral harbours and coasts of Great Britain, as to disturb or threaten vessels homeward or outward bound, as well as against belligerent proceedings generally, within an inconvenient approach towards British territory.
With this example, and with a view to what is suggested by our own experience, it may be expected that the British Government will not refuse to concur in an article to the following effect:
It is agreed that all armed vessels belonging to either of the parties engaged in war, shall be effectually restrained by positive orders, and penal provisions, from seizing, searching, or otherwise interrupting or disturbing vessels to whomsoever belonging, whether outward or inward bound, within the harbours or the chambers formed by headlands, or anywhere at sea, within the distance of four leagues from the shore, or from a right line from one headland to another; it is further agreed, that, by like orders and provisions, all armed vessels shall be effectually restrained by the party to which they respectively belong, from stationing themselves, or from roving or hovering so near the entry of any of the harbours or coasts of the other, as that merchantmen shall apprehend their passage to be unsafe, or in danger of being set upon and surprised; and that in all cases where death shall be occasioned by any proceeding contrary to these stipulations, and the offender cannot conveniently be brought to trial and punishment under the laws of the party offended, he shall, on demand made within months, be delivered
up for that purpose.
If the distance of four leagues cannot be obtained, any distance not less than one sea league may be substituted in the article. It will occur to you that the stipulation against the roving and hovering of armed ships on our coasts so as to endanger or alarm trading vessels, will acquire importance as the space entitled to immunity shall be narrowed.
No. 12.-1806, November 14: Letter from Lord Holland and
HOLLAND HOUSE Nov. 14th 1806 MY LORD, In elucidation of the subject of our public despatch we beg leave to lay before you the following observations on the nature of the extension of jurisdiction suggested by the American Commissioners, on the real value of such a concession compared with that which they seem to set upon it as well as the reasons which in our opinion induce them to urge it so strenuously.
The distance of a cannon shot from shore is as far as we have been able to ascertain the general limit of maritime jurisdiction and that distance is for the sake of convenience practically construed
into three miles or a league. All independent nations possess such jurisdiction on their coasts; and the right to it is not only generally contained in the acknowledgement of the independence of the United States, but seems to have been specifically alluded to in the 25th article of the treaty of 1794. Particular circumstances resulting from immemorial usage, geographical position or stipulations of treaty have sometimes led to an extension of jurisdiction, and may therefore when applicable, be urged as a justification of such a pretension.
The natural causes which should lead to such exceptions are variously stated by authors and those urged by the American commissioners as applicable to their country are to be found occasionally among them. Thus, the remoteness of a country from the jurisdiction of all others is acknowledged as diminishing the inconvenience of an extension of her own. The practice of some nations even at this day though not of great authority is founded on such a claim, and even the admitted jurisdiction over an inland sea seems to rest on reasoning nearly similar. Selden, who had however a strong bias in favour of extended jurisdictions argues from such a principle in favour of the maritime pretensions of England, and the claim of a division of the sovereignty of a sea lying between two Powers such as Great Britain and Spain has been asserted and is still seriously maintained in our law books of authority.
The space between headlands is more generally laid down, and admitted by Grotius himself, as subject to the exclusive jurisdiction of the power to whom the land belongs. But neither in theory nor in practice do we find the distance between the headlands to which such a rule must exclusively apply accurately defined. James 1st by his royal proclamation dated 1st of March 1604, prohibiting hostilities between belligerent nations within his jurisdiction, stated headlands more than 90 miles distant one from another as forming bays necessarily dependent on and belonging to the adjoining territory-but it is remarkable that the Spaniards who were one of the objects of this prohibition, considered the order as a relaxation not as an extension of his lawful jurisdiction over the seas.
The circumstance however on which the American commissioners have chiefly relied is the shelving nature of their coast; and though from the east end of Long Island northwards it does not deserve such a description they allege that it is so broken with rocks as to oblige coasting vessels to keep at a considerable distance from the land. A shelving coast is urged as a reason for an extension of jurisdiction on the principle that a right over the neighbouring parts of the sea is not solely founded on power but on convenience for the protection of trade from the molestation of belligerent vessels; and an inference may be thence drawn in favour of an extension of jurisdiction on a coast where the usual limits admit of little or no navigation.
Though such protection afforded to their coasters give them a local exemption from our right of impressment, it would diminish it is said, the odium attached to that practice among them in a much greater degree than it would abridge the advantages resulting from it to us. For, one instance of vexation within sight of the shore excites more discontent than many of a similar nature which do not reach the country till the passions of the parties have in a great measure subsided.
Though claims of an extension of jurisdiction beyond the cannon shot or the three miles have been asserted and maintained in particular instances by most maritime Powers and especially by ourselves and the Spaniards we meet with few instances of a recognition of such claims in treaties, probably owing to the unreasonable extent to which the respective honour of nations has been pledged to support them. The acquiescence in the right of fisheries at a considerable distance from the coast, sometimes at twenty leagues, and the submission to revenue laws, such as our hovering Acts &c, might indeed be argued with some plausibility as a proof of the exception allowed by nations to the general limitation of maritime jurisdiction.
By our treaty of peace and commerce with Tripoli, concluded 19th of September 1751, it is stipulated that the vessels of Tripoli shall not cruise or look for prizes within sight of the island of Minorca or city of Gibraltar; and the same stipulation is introduced into our treaty with Tunis, of the 19th of October 1751, with this addition, that any prize taken by the ships of Tunis within ten miles of the aforesaid places shall be restored without any contradiction; and Spain in her treaty with Tripoli, of 1784, stipulated that the Tripoline corsairs should not capture vessels within ten leagues of her
If your Lordship should deem it expedient on other grounds to concede any extension of jurisdiction to the United States beyond that which their independence necessarily implies, the American commissioners have more than once assured us that they are ready in the article itself to acknowledge it as an exception to the general rule arising from the particular circumstances of their situation and peculiar nature of their coast. We shall also observe that their utmost expectation after our conversations on the subject, is two marine leagues.
The disadvantages of such a stipulation to us would be the additional protection of a league to our enemies and to our deserters in the American service, and a fear has also been expressed by a very intelligent sea officer, that the difficulty of ascertaining the distance would add to the frequency of the disputes. But without dwelling on the uncertainty of the criterion at present resorted to for ascertaining the distance, viz the depth of the water, a reference to the cases which have occurred during this and the late war would amply prove that as far as the practice of our cruisers is concerned, the present limits of jurisdiction are no security against mistake or at least against litigation.
We might on the other hand derive some little advantage from the claim it would justify of an extended jurisdiction and consequent protection of revenue and commerce on the coasts of our colonial possessions. But the chief benefit we could expect to derive from it is the conviction in the American public of our conciliatory disposition towards them, an object which the language and conduct of Mr. Monroe and Mr. Pinkney have persuaded us that they and the American Government have as much at heart as any of those which were the immediate causes of their mission. They are anxious to remove the causes which led to the misunderstanding between the two countries, but it is obvious that they are more anxious to prevent the consequences of that misunderstanding. The ferment occasioned by it is
considered by them as the chief obstacle to the adoption of a system more friendly to Great Britain, and in urging the extension of jurisdiction they evidently consider the effect on the public mind in America more than the intrinsic value of the acquisition
We have the honour to be &c &c &c
Lord Viscount HOWICK.
&c &c &c
No. 13.-1807, January 3: Extract from Letter from Messrs. Monroe and Pinkney (at London) to Mr. Madison.
The twelfth article establishes the maritime jurisdiction of the United States to the distance of five marine miles from their coast, in favour of their own vessels and the unarmed vessels of all other Powers who may acknowledge the same limit. This Government contended that three marine miles was the greatest extent to which the pretension could be carried by the law of nations, and resisted, at the instance of the Admiralty and the law officers of the Crown, in Doctors' Commons, the concession, which was supposed to be made by this arrangement, with great earnestness. The Ministry seemed to view our claim in the light of an innovation of dangerous tendency, whose admission, especially at the present time, might be deemed an act unworthy of the Government. The outrages lately committed on our coast, which made some provision of the kind necessary as a useful lesson to the commanders of their squadrons, and a reparation for the insults offered to our Government, increased the difficulty of obtaining any accommodation whatever. The British commissioners did not fail to represent that which is contained in this article, as a strong proof of a conciliating disposition in their Government towards the Government and people of the United States. The limit established was not so extensive as that which we had contended for, and expected to have obtained; we persuade ourselves, however, that the great object which was contemplated by any arrangement of the subject, will result from that which has been made. The article in the treaty, in connection with the causes which produced it, forms an interesting occurrence in the history of our country, which cannot fail to produce the most salutary consequences. It is fair to presume, that the sentiment of respect which Great Britain has shown by this measure for the United States, will be felt and observed in future by her squadrons in their conduct on our coast, and in our bays and harbours. It is equally fair to presume, that the example of consideration which it affords in their favour, by a nation so vastly preponderant at sea, will be followed by other Powers.