"Spain claims a maritime jurisdiction of six miles around the island of Cuba. In pressing this claim on the consideration of the United States, Spain has used the argument that the modern improvements. in gunnery render the ancient limit of a marine league inadequate to the security of neutral states. "When it was understood at Paris that an engagement was likely to come off before Cherbourg between the United States ship of war Kearsarge and the pirate Alabama, the French Government remonstrated with both parties against firing within the actual reach of the shore by cannon-balls fired from their vessels, on the ground that the effect of a collision near the coast would be painful to France. "For these reasons I think that the subject may now be profitably discussed, but there are some preliminary considerations which it is deemed important to submit to Her Majesty's Government: "First. That the United States, being a belligerent now, when the other maritime states are at peace, are entitled to all the advantages of the existing construction of maritime law, and cannot, without serious inconvenience, forego them. "Secondly. That the United States, adhering in war, no less than when they were in the enjoyment of peace, to their traditional liberality towards neutral rights, are not unwilling to come to an understanding upon the novel question which has thus been raised in consequence of the improvements in gunnery. "But, thirdly, it is manifestly proper and important that any such new construction of the maritime law as Great Britain suggests should be reduced to the form of a precise proposition, and then that it should receive, in some manner, by treaty or otherwise, reciprocal and oblig atory acknowledgments from the principal maritime powers. "Upon a careful examination of the note you have addressed to me, the suggestions of Her Majesty's Government seem to be expressed in too general terms to be made the basis of discussion. Suppose, by way of illustration, that the utmost range of cannon now is five miles, are Her Majesty's Government understood to propose that the marine boundary of neutral jurisdiction, which is now three miles from the coast, shall be extended ten miles beyond the present limit? Again, if cannonshot are to be fired so as to fall not only not upon neutral land, but also not upon neutral waters, then, supposing the range of cannon-shot to be five miles, are Her Majesty's Government to be understood as proposing that cannon-shot shall not be fired within a distance of eight miles from the neutral territory? "Finally, shall measured distances be excluded altogether from the statement, and the proposition to be agreed upon be left to extend with the increased range of gunnery, or shall there be a pronounced limit of jurisdiction, whether five miles, eight miles, or any other measured limit?" Mr. Seward, Sec. of State, to Mr. Burnley, Sept. 16, 1864. MSS. Notes, Great "The instruction from the foreign office to Mr. Watson, of the 25th of September last, a copy of which was communicated by that gentleman to this Department, in his note of the 17th of October, directs him to ascertain the views of this Government in regard to the extent of maritime jurisdiction which can properly be claimed by any power, and whether we have ever recognized the claim of Spain to a six-mile limit or have ever protested against such claim. "In reply I have the honor to inform you that this Government has uniformly, under every administration which has had occasion to consider the subject, objected to the pretension of Spain adverted to, upon the same ground and in similar terms to those contained in the instruction of the Earl of Derby. "We have always understood and asserted that, pursuant to public law, no nation can rightfully claim jurisdiction at sea beyond a marine league from its coast. "This opinion on our part has sometimes been said to be inconsistent with the facts that, by the laws of the United States, revenue-cutters are authorized to board vessels anywhere within four leagues of their coasts, and that by the treaty of Guadalupe Hidalgo, so called, between the United States and Mexico, of the 2d of February, 1848, the boundary line between the dominions of the parties begins in the Gulf of Mexico, three leagues from land. "It is believed, however, that in carrying into effect the authority conferred by the act of Congress referred to, no vessel is boarded, if boarded at all, except such a one as, upon being hailed, may have answered that she was bound to a port of the United States. At all events, although the act of Congress was passed in the infancy of this Government, there is no known instance of any complaint on the part of a foreign Government of the trespass by a commander of a revenuecutter upon the rights of its flag under the law of nations. "In respect to the provision in the treaty with Mexico, it may be remarked that it was probably suggested by the passage in the act of Congress referred to, and designed for the same purpose, that of preventing smuggling. By turning to the files of your legation, you will find that Mr. Bankhead, in a note to Mr. Buchanan of the 30th of April, 1848, objected on behalf of Her Majesty's Government, to the provision in question. Mr. Buchanan, however, replied in a note of the 19th of August, in that year, that the stipulation could only affect the rights of Mexico and the United States, and was never intended to trench upon the rights of Great Britain, or of any other power under the law of nations." Mr. Fish, Sec. of State, to Sir Edward Thornton, Jan. 22, 1875. MSS. Notes, The following is the section of the Revised Statutes referred to in the above note: SEC. 2760. The officers of the revenue-cutters shall respectively be deemed officers of the customs, and shall be subject to the direction of such collectors of the revenue, or other officers thereof, as from time to time shall be designated for that purpose. They shall go on board all vessels which arrive within the United States or within four leagues of the coast thereof, if bound for the United States, and search and examine the same, and every part thereof, and shall demand, receive, and certify the manifests required to be on board certain vessels, shall affix and put proper fastenings on the hatches and other communications with the hold of any vessel, and shall remain on board such vessels until they arrive at the port or place of their destination. As to pursuit by neutral of belligerent who has, in derogation of neutrality, fitted out a cruiser in such neutral port, see infra, § 396. "There was reason to hope that the practice which formerly prevailed with powerful nations of regarding seas and bays usually of large extent near their coast as closed to any foreign commerce or fishery not specially licensed by them, was, without exception, a pretension of the past, and that no nation would claim exemption from the general rule of public law which limits its maritime jurisdiction to a marine league from its coast. We should particularly regret if Russia should insist on any such pretension." Mr. Fish, Sec. of State, to Mr. Boker, Dec. 1, 1875. MSS. Inst., Russia. An attack by Mexican officials on merchant vessels of the United States, when distant more than three miles from the Mexican coast, on the ground of breach of revenue laws, is an international offense, which is not cured by a decree in favor of the assailants, collusively or corruptly maintained in a Mexican court. Mr. Evarts, Sec. of State, to Mr. Foster, Apr. 19, 1879. MSS. Inst., Mex. Infra, §§ 238, 239, ff. "I have received your No. 108 of the 29th of January ultimo, with its accompanying copy and translation of the note addressed to you on the 24th of that month by the minister of state, giving the results of the investigation ordered by the Spanish Government of the circumstances under which the American vessels Ethel A. Merritt, Eunice P. New. comb, George Washington, and Hattie Haskell were fired upon and visited by Spanish gunboats, near the island of Cuba, in May, June, and July of last year. "The tenor of that reply is to contradict all the material allegations of the masters and officers of the several vessels named, asserting that they were in each case nearer to the Cuban coast than appeared from the statements made to this Government; that the gunboats which effected their detention and visitation acted in no warlike capacity, but as simple guardians of the revenue interests of Spain, and that neither in form nor in spirit was there any intended discourtesy to the flag of the United States. "Immediately on the receipt of your dispatch I addressed the repre sentatives of each of the vessels in question, contrasting the complain. ants' statements (which I may observe were only accepted by the Department after the most searching methods had been adopted to arrive at the truth of the facts according to the admitted rules of evidence in such cases) with the statements now presented in behalf of the Spanish Government, and asking what corroborative evidence of the exactness of their former affirmations they can now furnish, and what reply they desire to make to the allegation that their vessels were out of their course, and so liable to suspicion. Their awaited replies will enable the Department to better judge what direction shall be given to its further action, and instructions to you on the specific points of fact involved are necessarily deferred. "Meanwhile, it seems proper that I should briefly touch on certain points of principle suggested by Señor Elduayèn's note. The minister does not appear to meet the question of the jurisdictional limits within which the visitations were effected. "The wide contradiction between the several statements does not suffice to bring the position of three of the vessels at the time within the customary nautical league. This Government must adhere to the three-mile rule as the jurisdictional limit, and the cases of visitation without that line seem not to be excused or excusable under that rule. "This Government frankly and fully accepts the principle of the Government of His Majesty that any intention of discourtesy existed in these proceedings. It insists, however, on the importance of a clear understanding of the jurisdictional limit. It insists, likewise, on the distinction between the verification (according to the usual procedure of revenue cruisers), within a reasonable range of approach, of vessels seeking Spanish ports in the due pursuit of trade therewith, and the arrest by armed force, without the jurisdictional three-mile limit, of vessels not bound to Spanish ports. The considerations on these heads, advanced in my instruction to you of August 11, seem not to have attracted from His Majesty's Government the attention due to their precise bearing on at least three of the cases in hand under the express admissions of Mr. Elduayèn's note." Mr. Evarts, Sec. of State, to Mr. Fairchild, March 3, 1881. MSS. Inst., Spain; As to how far the marine belt may be extended by making its limits extend "We may, therefore, regard it as settled [citing extracts from President Woolsey, the umpire of the London commission of 1853, and Lord Granville, as quoted supra, § 28], that so far as concerns the eastern coast of North America, the position of this Department has uniformly been that the sovereignty of the shore does not, so far as territorial authority is concerned, extend beyond three miles from low-water mark, and that the seaward boundary of this zone of territorial waters follows the coast of the mainland, extending where there are islands so as to place round such islands the same belt. This necessarily excludes the position that the seaward boundary is to be drawn from headland to headland, and makes it follow closely, at a distance of three miles, the boundary of the shore of the continent or of adjacent islands belonging to the continental sovereign. "The position I here state, you must remember, was not taken by this Department speculatively. It was advanced in periods when the question of peace or war hung on the decision. When, during the three earlier administrations, we were threatened on our coast by Great Britain and France, war being imminent with Great Britain, and for a time actually though not formally engaged in with France, we asserted this line as determining the extent of our territorial waters. When we were involved, in the earlier part of Mr. Jefferson's administration, in difficulties with Spain, we then told Spain that we conceded to her, so far as concerned Cuba, the same limit of territorial waters as we claimed for ourselves, granting nothing more; and this limit was afterwards reasserted by Mr. Seward during the late civil war, when there was every inducement on our part not only to oblige Spain but to extend, for our own use as a belligerent, territorial privileges. When, in 1807, after the outrage on the Chesapeake by the Leopard, Mr. Jefferson issued a proclamation excluding British men-of-war from our territorial waters, there was the same rigor in limiting these waters to three miles from shore. And during our various fishery negotiations with Great Britain we have insisted that beyond the three-mile line Britisth territorial waters on the northeastern coast do not extend. Such was our position in 1783, in 1794, in 1815, in 1818. Such is our position now in our pending controversy with Great Britain on this important issue. It is true that there are qualifications to this rule, but these qualifications do not affect its application to the fisheries. We do not, in asserting this claim, deny the free right of vessels of other nations to pass on peaceful errands through this zone, provided they do not, by loitering, produce uneasiness on the shore or raise a suspicion of smuggling. Nor do we hereby waive the right of the sovereign of the shore to require that armed vessels, whose projectiles, if used for practice or warfare, might strike the shore, should move beyond cannon range of the shore when engaged in artillery practice or in battle, as was insisted on by the French Government at the time of the fight between the Kearsarge and the Alabama, in 1864, off the harbor of Cherbourg. We claim, also, that the sovereign of the shore has the right, on the principle of selfdefense, to pursue and punish marauders on the sea to the very extent to which their guns would carry their shot, and that such sovereign has jurisdiction over crimes committed by them through such shot, although at the time of the shooting they were beyond three miles from shore. But these qualifications do not in any way affect the principle I now assert, and which I am asserting and pressing in our present contention with |