Claims of Negotiation of 1827. of the continent, and whose dominions were by all acknowledged to extend to the Rocky Mountains." The exclusive claim of the United States was opposed by Great Britain on the following grounds: 1. That the Columbia was not discovered by Gray, who had only entered its mouth, discovered four years previously by Lieutenant Mears of the British navy; and that the exploration of the interior borders of the Columbia by Lewis and Clarke could not be considered as confirming the claim of the United States, because, if not before, at least in the same and subsequent years, the British Northwest Company had, by means of their agents, already established their posts on the head waters or main branch of the river. 2. That the restitution of Astoria, in 1818, was accompanied by express reservations of the claim of Great Britain to that territory, upon which the American settlement must be considered an encroachment. 3. That the titles to the territory in question, derived by the United States from Spain through the treaty of 1819, amounted to nothing more than the rights secured to Spain equally with Great Britain by the Nootka Sound Convention of 1790: namely, to settle in any part of those countries, to navigate and fish in their waters, and to trade with the natives. 4. That the charters granted by British sovereigns to colonies on the Atlantic coasts were nothing more than cessions to the grantees of whatever rights the grantor might consider himself to possess, and could not be considered as binding the subjects of any other nation, or as part of the law of nations, until they had been confirmed by treaties. During the negotiation of 1827, the British plenipotentiaries, Messrs. Huskisson and Addington, presented the claims of their Government in respect to the territory in question in a statement, of which the following is a summary. "Great Britain claims no exclusive sovereignty over any portion of the territory on the Pacific, between the 42nd and the 49th parallels of latitude. Her present claim, not in respect to any part, but to the whole, is limited to a right of joint occupancy, in common with other States, leaving the right of exclusive dominion in abeyance; and her pretensions tend to the mere maintenance of her own rights, in resistance to the exclusive character of the pretensions of the United States. "The rights of Great Britain are recorded and defined in the Convention of 1790. They embrace the right to navigate the waters of those countries, to settle in and over any part of them, and to trade with the inhabitants and occupiers of the same. These rights have been peaceably exercised ever since the date of that convention; that is, for a period of nearly forty years. Under that convention, valuable British interests have grown up in those countries. It is admitted that the United States possess the same. rights, although they have been exercised by them only in a single instance, and have not, since the year 1813, been exercised at all; but beyond those rights they possess none. "In the interior of the territory in question, the subjects of Great Britain have had, for many years, numerous settlements and trading-posts; several of these posts are on the tributary waters of the Columbia; several upon the Columbia itself; some to the northward, and others to the southward of that river. And they navigate the Columbia as the sole channel for the conveyance of their produce to the British stations nearest to the sea, and for its shipment thence to Great Britain; it is also by the Columbia and its tributary streams that these posts and settlements receive their annual supplies from Great Britain. "To the interests and establishments which British industry and enterprise have created, Great Britain owes protection; that protection will be given, both as regards settlement, and freedom of trade and navigation, with every attention not to infringe the co-ordinate rights of the United States; it being the desire of the British Government, so long as the joint occupancy continues, to regulate its own obligations by the same rules which govern the obligations of every other occupying party" (n). 1827. By the 3rd Article of the Convention between the United States Conventions and Great Britain, in 1818, it was "agreed, that any country that of 1818 and may be claimed by either party, on the north-west coast of America, westward of the Stony Mountains, shall, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, be free and open, for the term of ten years from the date of the signature of the present Convention, to the vessels, citizens, and subjects of the two Powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other Power or State to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences amongst themselves." (#) Congress Documents, 20th Cong. and 1st Sess. No. 199. Greenhow, Proofs and Illustrations, H. Treaty of 1846. In 1827, another Convention was concluded between the two parties, by which it was agreed: "Article 1. All the provisions of the third Article of the Convention concluded between the United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland, on the 20th of October, 1818, shall be, and they are hereby further indefinitely extended and continued in force, in the same manner as if all the provisions of the said Article were herein specifically recited. "Article 2. It shall be competent, however, to either of the contracting parties, in case either should think fit at any time after the 20th of October, 1828, on giving due notice of twelve months to the other contracting party, to annul and abrogate this Convention; and it shall, in such case, be accordingly entirely annulled and abrogated, after the expiration of the said term of notice. "Article 3. Nothing contained in this Convention, or in the third Article of the Convention of the 20th of October, 1818, hereby continued in force, shall be construed to impair, or in any manner affect, the claims which either of the contracting parties may have to any part of the country westward of the Stony or Rocky Mountains" (o). The notification provided for by the Convention having been given by the American Government, new discussions took place between the two Governments, which were terminated by a treaty concluded at Washington, in 1846. By the first Article of that treaty it was stipulated, that from the point on the 49th parallel of north latitude, where the boundary laid down in existing treaties. and conventions between the United States and Great Britain terminates, the line of boundary shall be continued westward along the said 49th parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island, and thence. southerly through the middle of the said channel, and of Fuca Straits, to the Pacific Ocean; provided, however, that the navigation of the whole of the said channel and straits, south of the 49th parallel of north latitude, remain free and open to both parties. The second Article stipulated for the free navigation of the Columbia River by the Hudson's Bay Company, and the British subjects trading with them, from the 49th degree of north latitude to the ocean. The third Article provided that the possessory rights of the Hudson's Bay Company, and of all other British (0) Elliot, American Diplomatic Code, vol. i. pp. 282-330. subjects, to the territory south of the parallel of the 49th degree of north latitude, should be respected (p). German The treaty of 1846 did not, however, completely settle the Arbitration question. It was only terminated in 1872 by being submitted to before the the award of the German Emperor as arbitrator. The 34th Emperor. Article of the Treaty of Washington, 8th of May, 1871, after referring to the Treaty of 1846, and stating that the Commissioners appointed to determine that portion of the boundary which runs southerly through the middle of the channel separating Vancouver's Island from the Continent, and of Fuca Straits to the Pacific Ocean, were unable to agree, provides "that the respective claims of the Government of Her Britannic Majesty, and the Government of the United States, shall be submitted to the arbitration and award of His Majesty the German Emperor, who, having regard to the above-mentioned Article of the said Treaty, shall decide thereupon finally, and without appeal, which of these claims is most in accordance with the true interpretation of the Treaty of June 15, 1846" (q). Great Britain contended that the boundary line should be run through the Rosario Strait, while the United States asserted that it should be run through the Canal de Haro. The position of the boundary was a matter of considerable importance, not only in assigning several islands to the successful party, but also in settling the rights of ownership over the navigable channels between Vancouver's Island and the mainland. The whole question turned upon the interpretation to be put on the existing treaties. Cases and counter-cases were submitted by each Government to the German Emperor, and on the 21st October, 1872, His Imperial Majesty awarded that "The claim of the Government of the United States, viz., that the line of boundary between the dominions of Her Britannic Majesty and the United States should be run through the Canal of Haro, is most in accordance with the true interpretation of the Treaty" of 1846 (r). on the In 1885, the Powers assembled at the Conference of Berlin, that Occupations is, all the maritime States of Europe and the United States (8), African coast. being desirous to obviate the misunderstanding and disputes which The West might in future arise from new acts of occupation on the coast of African (P) United States Statutes at Large, vol. ix. pp. 109, 869. As to the Oregon controversy, see Moore, Digest, vol. i. S$ 80, 81, 104; vol. v. § 835. Sir T. Twiss, The Law of Nations, vol. i. §§ 125, 126; Ibid. The Oregon Question (1846). (1) Parl. Papers, N. America, No. 3 (8) As to the position of the Conference. MARITIME The Case of The Franconia. Territorial Africa, discussed and adopted a declaration introducing into international relations certain uniform rules with reference to future occupations of that coast. Any Power taking possession of a tract of land outside any possessions it had before is to give notice to the other signatory Powers, in order to enable them, if need be, to make good any claims of their own; and the signatory Powers recognise the obligation to insure the establishment of authority in the regions occupied by them on the coasts of the African continent sufficient to protect existing rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon in the General Act (†). The maritime territory of every State extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea. enclosed by headlands belonging to the same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation(u). The extent and nature of the jurisdiction of a State over its territorial waters have been much discussed in recent times. In the well-known case of The Franconia the Court held that it had no jurisdiction over a criminal offence committed by a foreigner on board a foreign ship which was on the open sea but within three miles of the coast of England. The difficulty and doubt surrounding the question is shown by the fact that of the fourteen judges who attended during the arguments in The Franconia seven pronounced against the jurisdiction, while six claimed it. One who agreed with the majority died before judgment was delivered (x). The decision, therefore, could not be considered as altogether satisfactory, and the question has now been set at rest, as far as English law is concerned, by an Act of Parliament known as the Territorial Waters Jurisdiction Act, 1878 (y). By this Act, after reciting that "the rightful jurisdiction of (t) Arts. 34, 35. Hertslet, Map of Africa by Treaty, p. 20; for notifications under Art. 35, see ibid. pp. 10, 47, 315, 327, 358, 772, 811, 1016, 1068, 1069. Cf. British State Papers, Africa, No. 4 (1885), p. 312. (u) Grotius, De Jur. Bel. ac Pac. lib. ii. cap. 3, § x. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 8. Dominio Maris, cap. 2. Vattel, liv. i. De ch. 23, § 289. Valin, Comm. sur l'Ordonnance de la Marine, liv. v. tit. 1. Azuni, Diritto Marit. pt. i. cap. 2, Art. 3, § 15. Galiani, Dei Doveri dei Principi Neutrali in Tempo di Guerra, liv. i. Life and Works of Sir L. Jenkins, vol. ii. p. 780. (x) R. v. Keyn (The Franconia) (1876), 2 Ex. D. 63. (y) 41 & 42 Vict. c. 73. |