Treaty of 1783. Treaty of By the treaty of 1783, which admitted the independence of the United States, Great Britain agreed that they should continue to enjoy the right of fishing on the Banks of Newfoundland, and the liberty of fishing along such coasts of the same island as were used by British seamen, in the Gulf of St. Lawrence, and on the coasts, bays, and creeks of all other British dominions in America; as well as the liberty of drying and curing fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, the Magdalen Islands, and Labrador, so long as these should continue unsettled; but not that of drying or curing on the island of Newfoundland. At and after the treaty of Ghent, which contained no provisions respecting the fisheries, it was contended by Ghent, 1814. American negotiators, but with reasons which Great Britain would not accept (see § 160), that the article of the peace of 1783, relating to the fisheries, was in its nature perConvention petual, and thus not annulled by the war of 1812. of 1818. A convention in 1818 granted the perpetual privilege to citizens of the United States to take, dry, and cure fish, on the coasts, while unsettled, of Labrador, east of Mt. Joli, and of Newfoundland, between Cape Ray and the Rameau isles; and to take fish on the Magdalen isles, and on the west and north coasts of Newfoundland, the United States renouncing forever any liberty "to take or cure fish, on, or within three marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty's dominions in America not included within the above-mentioned limits. Subsequently, by 1854. the treaty of 1854, commonly called the Reciprocity Treaty, leave was given to fishermen from the United States to take fish, excepting shell-fish, on the coasts and in the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and the islands adjacent, without limit as to distance from the shore, with permission to land there and upon the Magdalen Islands for the purpose of drying their nets and curing their fish; provided that in so doing they do not interfere with private rights or prior occupancy by British 1 See Wheaton's Elements, ii., 4, § 8, and iii., 2, § 9. Treaty of fishermen. The same rights, with the same limitations, are given to British subjects on the coasts of the United States from the 36th degree northwards. In both cases the treaty does not include salmon and shad fisheries, nor the fisheries in rivers and the mouths of rivers. This treaty, terminable in or after ten years, was terminated by the United States in 1866. And again by the treaty of Washington of 1871, the reciprocity of the treaty of 1854 was restored in great measure. (See the sketch of the treaty under 1871 in Appendix ii.) $ 60. clusive con tain waters. The claims of exclusive control over certain portions of water are, in great part, either doubtful or to be re- Claims of exjected. These are broad arms or recesses of the sea; trol over cernarrow seas not shut up within the territory of a single state; narrow passages, especially such as lead to interior seas; such interior seas themselves; and rivers furnishing the only or most convenient outlet for an inland state, which rise in one country and have their mouths in another. 1. Bays of the sea-called in England the king's chambers are within the jurisdiction of the states to Bays and whose territory the promontories embracing them Gulfs. belong. Thus the Delaware Bay was declared in 1793 to belong exclusively to the United States. When, however, the headlands are very remote, there is more doubt in regard to the claim of exclusive control over them; and, for the most part, such claim has not been made. Chancellor Kent (i., 30) inclines to claim for the United States the dominion over a very wide extent of the adjacent ocean. "Considering," says he, "the great extent of the line of the American coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume for domestic purposes connected with our safety and welfare the control of waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape 1 Murhard, Nouv. Rec., 16, 1. 498. Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the Capes of the Delaware, and from the south Cape of Florida to the Mississippi. In 1793 our government thought they were entitled, in reason, to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea-shores; and, in 1806, our government thought it would not 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 from belligerent warfare for the space between that limit and the American shore." But such broad claims have not, it is believed, been much urged, and they are out of character for a nation that has ever asserted the freedom of doubtful waters, as well as contrary to the spirit of the more recent times. 2. Great Britain long claimed supremacy in the narrow seas adjoining that island. But the claim, although cheaply satisfied by paying certain honors to the British flag, was not uniformly acquiesced in, and has fallen into desuetude.1 And if it had been urged and admitted in former times, the force of the prescription would be broken by the plea that the views of the world, in regard to the freedom of commerce, have become much more enlarged. What Grotius contended for in his "Mare Liberum" against the exclusive claim of Portugal to the possession of oriental commerce, "jure gentium quibusvis ad quosvis liberam esse navigationem," is now for the most part admitted, and the pathways of commerce can no longer be obstructed.2 § 61. . 3. The straits which have figured most largely in international history are those leading into the Baltic and inland seas. the Black Seas. Straits and 1 Compare Vattel, i., 23, § 289; Wheaton's Hist., Part I., § 18; Wheaton's Elements, ii., 4, § 9; Heffter, § 73. See also § 85. 2 Compare what the Lord Chief Justice of England says of these claims in his decision in the case of the Franconia,-that "the claim to such sovereignty, at all times unfounded, has long since been abandoned " by England. A. The claims of Denmark to exclusive control over Elsineur Sound and the Belts, are now matters of his- The Danish tory, but a brief sketch of the past usage may not be straits. without its use. Danish jurists rested these claims rather on immemorial prescription than on the cost of providing for the security of commerce by lighthouses, or by removing obstacles to navigation. In 1319, a charter regulated the duties to be paid by the Dutch. In 1544 the Emperor Charles V. stipulated the payment of the Sound dues by the merchants of the Low Countries. Subsequently, Denmark raised the tariff, which brought on a war with the Dutch and other nations. In 1645 Sweden obtained exemption from tolls, and, at the same time, by the treaty of Christianstadt, the amount of duties to be paid by the Dutch was again adjusted. France and England, in the seventeenth century, agreed to pay the same tariff with the Dutch. Things continued thus for two centuries. In 1840, attention having been drawn in England to the Sound dues by the delays and vexations of commerce, negotiations were had which removed part of the complaints. In 1826 a commercial convention for ten years with Denmark placed the United States on the footing of the most favored nations, which caused a reduction of the duties we had been paying hitherto. In 1843 the justice of the demand began to be more especially drawn into question, and the Secretary of State expressed himself against it. Amid the difficulties of Denmark, in 1848, the Chargé from the United States proposed, as a commutation for the claim, the sum of two hundred and fifty thousand dollars. Five years afterwards the diplomatic agent of the United States was instructed by Mr. Marcy to take the ground with Denmark, that his country could recognize no immemorial usage not coinciding with natural justice and international law. In the next year the President advised that the convention of 1826 should be regarded as at an end; and, after a vote of the Senate to this effect, notice was given to Denmark that it would be broken off in a year from that time. Denmark now, in October, 1855, proposed to our government to enter into a plan of capitalizing the dues according to an equitable adjustment, but the government declined being a party to such an arrangement. Meanwhile, as difficulties with the United States seemed to be impending, and as other nations were interested in putting an end to this annoyance, a congress met at Copenhagen, to consider this question, and fixed on the sum of thirty-five million rixdollars (at fifty cents of our money to the dollar) as the sum for which Denmark ought to give up the Sound dues forever. This payment was divided among the nations interested, in proportion to the value of their commerce passing through the Danish straits; and an arrangement for extinguishing the claim has since been accepted by them all. In March, 1857, our government agreed to pay, as its portion of the capitalized stock, three hundred ninety-three thousand and eleven dollars.1 The Black passage into it. B. The entrance into the Black Sea and that sea itself. Until Russia acquired territory on the Black Sea, Sea and the that sea, with the straits leading to it, and the sea of Marmora, lay entirely within Turkish territory. But the existence of another power on the Black Sea modified the rights of Turkey. By the treaty of Adrianople, in 1829, entrance through the straits into the Black Sea, and its navigation, were admitted to belong to Russia and to powers at amity with Russia. The ancient practice, however, had been to prohibit all foreign vessels of war from entering the Bosphorus and the Dardanelles; and by the treaty of London, in 1841, between the five powers and Turkey, this usage was sanctioned. Finally, by the treaty of Paris, March 30, 1856, "the Black Sea is made neutral. Open to the mercantile marine of all nations, its waters and ports are formally, and in perpetuity, interdicted to flags of war, whether belonging to the bordering powers, or to any other power." The treaty, however, proceeds to grant to Russia and Turkey the liberty of making a convention in regard to a small force, to be kept 1 Compare especially an article in the North American Review for January, 1857, vol. lxxxiv., from which we have drawn freely. |
