But at least it may be insisted that the extent of the neutral immunity Mr. Madison, Sec. of State, to Messrs. Monroe and Pinkney, May 17, 1806. MSS. It cannot be asserted as a general rule that nations have an exclusive right of fishery over all adjacent waters to a distance of three marine miles beyond an imaginary line drawn from headland to headland. This doctrine of headlands is new, and has received a proper limit in the convention between France and Great Britain of the 2d of August, 1839, in which "It is equally agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland." Umpire, London C., 1853, 212; S. P., 214. Cited 1 Halifax award, 152. See infra, § 32. Where two nations are possessed of territory on opposite sides of a bay or navigable river, the sovereignty of each presumptively extends to the middle of the water from any part of their respective shores. 5 Op., 412, Crittenden, 1851. Where one nation first takes possession of the whole of the bay or navigable river, and exercises sovereignty thereon, the neighboring people shall nevertheless be "lords of their particular ports, and so much of the sea or navigable river as the convenient access to the shore requires." lbid. On May 14, 1870, the "headland" doctrine having been reasserted by Mr. Peter Mitchell, provincial minister of marine and fisheries, Lord Granville, British foreign secretary, on June 6, 1870, telegraphed to the governor-general as follows: "Her Majesty's Government hopes that the United States fishermen will not be, for the present, prevented from fishing, except within three miles of land, or in bays which are less than six miles broad at the mouth." 1 Halifax Comm., 155. Infra, §§ 32, 303. IV. STRAITS. § 29. "Negotiations are pending with Denmark to discontinue the practice of levying tolls on our vessels and their cargoes passing through the sound. I do not doubt that we can claim exemption therefrom, as a matter of right. It is admitted on all hands that this exaction is sanctioned, not by the general principles of the law of nations, but only by special conventions, which most of the commercial nations have entered into with Denmark. The fifth article of our treaty of 1826 with Denmark provides that there shall not be paid, on the vessels of the United States and their cargoes when passing through the sound, higher duties than those of the most favored nations. This may be regarded as an implied agreement to submit to the toll during the continuance of the treaty, and, consequently, may embarrass the assertion of our right to be released therefrom. There are also other provisions in the treaty which ought to be modified. It was to remain in force for ten years, and until one year after either party should give notice to the other of intention to terminate it. I deem it expedient that the contemplated notice should be given to the Government of Denmark." President Pierce's second annual message, 1854. "I remain of the opinion that the United States ought not to submit to the payment of the sound dues, not so much because of their amount, which is a secondary matter, but because it is in effect the recognition of the right of Denmark to treat one of the great maritime highways of nations as a close sea, and prevent the navigation of it as a privilege, for which tribute may be imposed upon those who have occasion to use it. "This Government, on a former occasion not unlike the present, signalized its determination to maintain the freedom of the seas and of the great natural channels of navigation. The Barbary States had for a long time coerced the payment of tribute from all nations whose ships frequented the Mediterranean. To the last demand of such payment made by them the United States, although suffering less by their depredations than many other nations, returned the explicit answer that we preferred war to tribute, and thus opened the way to the relief of the commerce of the world from an ignominious tax, so long submitted to by the more powerful nations of Europe. "If the manner of payment of the sound dues differ from that of the tribute formerly conceded to the Barbary States, still their exaction by Denmark has no better foundation in right. Each was, in its origin, nothing but a tax on a common natural right, extorted by those who were at that time able to obstruct the free and secure enjoyment of it, but who no longer possess that power. "Denmark, while resisting our assertion of the freedom of the Baltic Sound and belts, has indicated a readiness to make some new arrangement on the subject, and has invited the Governments interested, including the United States, to be represented in a convention to assemble for the purpose of receiving and considering a proposition which she intends to submit for the capitalization of the sound dues, and the distribution of the sum to be paid as commutation among the Governments according to the respective proportion of their maritime commerce to and from the Baltic. I have declined, in the behalf of the United States, to accept this invitation, for the most cogent reasons. One is that Denmark does not offer to submit to the convention the question of But at least it may be insisted that the extent of the neutral immunity Mr. Madison, Sec. of State, to Messrs. Monroe and Pinkney, May 17, 1806. MSS. It cannot be asserted as a general rule that nations have an exclusive right of fishery over all adjacent waters to a distance of three marine miles beyond an imaginary line drawn from headland to headland. This doctrine of headlands is new, and has received a proper limit in the convention between France and Great Britain of the 2d of August, 1839, in which "It is equally agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland." Umpire, London C., 1853, 212; S. P., 214. Cited 1 Halifax award, 152. See infra, § 32. Where two nations are possessed of territory on opposite sides of a bay or navigable river, the sovereignty of each presumptively extends to the middle of the water from any part of their respective shores. 5 Op., 412, Crittenden, 1851. Where one nation first takes possession of the whole of the bay or navigable river, and exercises sovereignty thereon, the neighboring people shall nevertheless be "lords of their particular ports, and so much of the sea or navigable river as the convenient access to the shore requires." lbid. On May 14, 1870, the "headland" doctrine having been reasserted by Mr. Peter Mitchell, provincial minister of marine and fisheries, Lord Granville, British foreign secretary, on June 6, 1870, telegraphed to the governor-general as follows: "Her Majesty's Government hopes that the United States fishermen will not be, for the present, prevented from fishing, except within three miles of land, or in bays which are less than six miles broad at the mouth." 1 Halifax Comm., 155. Infra, §§ 32, 303. IV. STRAITS. "Negotiations are pending with Denmark to discontinue the practice of levying tolls on our vessels and their cargoes passing through the sound. I do not doubt that we can claim exemption therefrom, as a matter of right. It is admitted on all hands that this exaction is sanctioned, not by the general principles of the law of nations, but only by special conventions, which most of the commercial nations have entered into with Denmark. The fifth article of our treaty of 1826 with Denmark provides that there shall not be paid, on the vessels of the United States and their cargoes when passing through the sound, higher duties than those of the most favored nations. This may be regarded as an implied agreement to submit to the toll during the continuance of the treaty, and, consequently, may embarrass the assertion of our right to be released therefrom. There are also other provisions in the treaty which ought to be modified. It was to remain in force for ten years, and until one year after either party should give notice to the other of intention to terminate it. I deem it expedient that the contemplated notice should be given to the Government of Denmark." President Pierce's second annual message, 1854. "I remain of the opinion that the United States ought not to submit to the payment of the sound dues, not so much because of their amount, which is a secondary matter, but because it is in effect the recognition of the right of Denmark to treat one of the great maritime highways of uations as a close sea, and prevent the navigation of it as a privilege, for which tribute may be imposed upon those who have occasion to use it. "This Government, on a former occasion not unlike the present, signalized its determination to maintain the freedom of the seas and of the great natural channels of navigation. The Barbary States had for a long time coerced the payment of tribute from all nations whose ships frequented the Mediterranean. To the last demand of such payment made by them the United States, although suffering less by their dep redations than many other nations, returned the explicit auswer that we preferred war to tribute, and thus opened the way to the relief of the commerce of the world from an ignominious tax, so long submitted to by the more powerful nations of Europe. "If the manner of payment of the sound dues differ from that of the tribute formerly conceded to the Barbary States, still their exaction by Denmark bas no better foundation in right. Each was, in its origin, nothing but a tax on a common natural right, extorted by those who were at that time able to obstruct the free and secure enjoyment of it, but who no longer possess that power. "Denmark, while resisting our assertion of the freedom of the Baltic Sound and belts, has indicated a readiness to make some new arrangement on the subject, and has invited the Governments interested, including the United States, to be represented in a convention to assemble for the purpose of receiving and considering a proposition which she intends to submit for the capitalization of the sound dues, and the distribution of the sum to be paid as commutation among the Governments according to the respective proportion of their maritime commerce to and from the Baltic. I have declined, in the behalf of the United States, to accept this invitation, for the most cogent reasons. One is that Denmark does not offer to submit to the convention the question of her right to levy the sound dues. The second is, that if the convention were allowed to take cognizance of that particular question, still it would not be competent to deal with the great international principle involved, which affects the right in other cases of navigation and commercial freedom as well as that of access to the Baltic. Above all, by the express terms of the proposition it is contemplated that the consid eration of the sound dues shall be commingled with and made subordi nate to a matter wholly extraneous-the balance of power among the Governments of Europe. "While, however, rejecting this proposition, and insisting on the right of free transit into and from the Baltic, I have expressed to Denmark a willingness, on the part of the United States, to share liberally with other powers in compensating her for any advantages which commerce shall hereafter derive from expenditures made by her for the improvement and safety of the navigation of the sound or belts." President Pierce's third annual message, 1855. The imposition by Denmark of sound dues on shipping of the United States is regarded by the Government of the United States as incon sistent with just principles of international law. Mr. Buchanan, Sec. of State, to Mr. Flenniken, Oct. 14, 1848. MSS. Instruct., Denmark. Mr. Marcy, Sec. of State, to Mr. Bedinger, July 18, 1853; March 12, 1855; Nov. 3, 1855; Feb. 19, 1856; May 5, 1856. Ibid. "By a convention, of April 11, 1857, between the United States and Denmark, the navigation of the sound and belts is declared free to American vessels; and Denmark stipulates that these passages shall be lighted and buoyed as heretofore,.and to make such improvements in them as circumstances may require, without any charges to American vessels and their cargoes, and to maintain the present establishment of pilots, it being optional for American masters to employ them at reasonable rates fixed by the Danish Government or to navigate their own vessels. In consideration of these stipulations the United States agreed to pay to Denmark 717,829 rix-dollars, or $393,011 in the currency of the United States. Any other privileges granted by Denmark to any other nation at the sound and belts, or on her coasts and in her harbors, with reference to the transit by land, through Danish territory, of their merchandise, shall be extended to and enjoyed by citizens of the United States, their vessels and property. The convention of April 26, 1826, to become again binding, except as regards the article referring to the sound dues. United States Statutes at Large, vol. xi, p. 719." Lawrence's Wheaton, ed. 1863, p. 335. See further correspondence attached to President Pierce's messages above The subject of sound dues is further discussed in Woolsey's Int. Law, § 57, see The correspondence with Denmark (1841-1854) relative to sound dues will be found in British and Foreign State Papers, 1854-55, vol. 45, 807. |