« AnteriorContinuar »
Russia and the Porte, both as to Russian vessels and those of other European States in amity with Turkey.
“ The right of foreign vessels to navigate the interior waters of Turkey, which connect the Black Sea with the Mediterranean does not extend to ships of war. The ancient rule of the Ottoman Empire, established for its own security, by which the entry of foreign vessels of war into the canal of Constantinople, including the strait of the Dardanelles and that of the Black Sea, has been at all times prohibited, was expressly recognized by the treaty concluded at London the 13th July, 1841, between the five great European powers and the Ottoman Porte.
“By the second article, * * * the Sultan reserved the faculty of granting, as heretofore, firmans allowing the passage to light armed vessels employed, according to usage, in the service of the diplomatic legations of friendly powers.”
[“ By the treaty of Paris in 1856, as modified by the treaty London in 1871, the Black Sea was thrown open to merchant vessels of all nations; but the streets are closed to ships of war, except that the Sultan has the faculty of opening them in time of peace to the war vessels of friendly and allied powers in case he deems it necessary for carrying out the stipulations of the treaty of Paris. The United States have never adhered to either of these treaties, and have always maintained that their right to send ships of war into the Black Sea cannot be legally taken from them by any arrangement concluded by European powers to which they are not parties. No attempt, however, has ever been made to exercise these rights. All American ships of war have, while reserving all question of right, asked permission of the Porte to pass the Dardanelles.” Schuyler's American Diplomacy, 317.]
REGINA v. CUNNINGHAM.
COURT FOR Crown Cases RESERVED, 1859.
(Bell's Crown Cases, 722.)
Held, that a crime, committed on a ship lying in the Bristol Channel, at a point where it is more than ten miles wide, is committed within the body of the adjoining county, and subject, therefore, to the jurisdiction of the courts of said county.
This was an action upon an indictment against the three mates of an American vessel, for feloniously wounding one of their seamen.
The offense charged took place in the Penarth Roads, ninety miles from the mouth of the Bristol Channel. The venue was Glamorganshire—the offense took place three-quarters of a mile from the coast of Glamorganshire, at a spot always covered by the tide, but a quarter of a mile from a place which is left dry by the tide.
It was ten miles to the opposite shore. The exact place was between Glamorganshire and an island called the Flat Holms, part of the county of Glamorganshire, and two miles inside that island.
Counsel for the prisoners contended that the offense was committed on the high seas—the Crown that it was in the county of Glamorgan.
The judgment of the court was delivered by COCKBURN, C. J.“ In this case we are of opinion that the conviction is right. The only question with which it becomes necessary for us to deal is whether the part of the sea on which the vessel was at the time when the offense was committed, forms part of the county of Glamorgan ; and we are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales, of the county of Somerset on the one side and the county of Glamorgan on the other. We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holms, between which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardiff and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea between the counties of Somerset and Glamorgan is to be considered as within the counties, by the shores of which its several parts are respectively bounded. We are, therefore, of opinion that the place in question is within the body of the county of Glamorgan.”
THE DIRECT UNITED STATES CABLE COMPANY V. TIIE
ANGLO-AMERICAN TELEGRAPII COMPANY.
Privy COUNCIL, 1877.
(Law Reports, 2 Apr. Cases, 394.) Held, that Conception Bay, in Newfoundland, which is something over fifteen miles wide, and forty to fifty miles long, is a British bay, and a part of the territorial waters of Newfoundland.
This suit was one in which the Respondent Company had obtained an injunction against the Appellant Company restraining them from laying a telegraph cable in Conception Bay, Newfoundland, and thereby infringing rights granted by the legislature of that island to the Respondent Company. The Appellant Company contended that Conception Bay (which is rather more than twenty miles wide at its mouth and runs inland between forty and fifty miles) was not British territorial waters, but a part of the high seas. The buoy and cables complained of were laid within the bay at a distance of more than three miles from the shore.
The judgment was delivered by Lord BLACKBURN, who, after reviewing the cases under the Common Law of England continued : “Passing from the Common Law of England, to the general law of nations, as indicated by the text writers on international jurisprudence, we find an universal agreement that harbors, estuaries, and bays landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is “a bay” for this purpose.
“ It seems generally agreed that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory, and with this idea, most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting, therefore, a width of one cannon-shot from shore to shore, or three miles; some a cannon-shot from each shore, or six miles ; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain, that part of the British Channel which in Reg. v. Cunningham was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays, and Chancellor Kent, in his Commentaries, though by no means giving the weight of his authority to this claim, gives some reasons for not considering it altogether unreasonable. It does not appear to their Lordships that jurists and text-writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination. If it was necessary in this case to lay down a rule the difficulty of the task would not deter their Lordships from attempting to fulfill it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Govern
ment has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive), the British Legislature has by acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland.
“ Their Lordships, therefore, will humbly recommend to Her Majesty that the order of the Supreme Court of Newfoundland be affirmed and that this appeal be dismissed with costs.” 1
MANCHESTER v. MASSACHUSETTS.
SUPREME COURT OF THE UNITED STATES, 1890.
(139 United States Reports, 240.)
Manchester, a citizen of Rhode Island was indicted in Massachusetts for taking fish (Menhaden) in Buzzard's Bay, in contravention of the laws of Massachusetts regulating the fishery in that bay. Manchester held a United States license for the Menhaden fishery; and disputed the right of Massachusetts to any jurisdiction over such fisheries.
Held that, in the absence of legislation by Congress on this subject, the States may legally make regulations for the fisheries within their territorial waters.
Arthur Manchester was charged with fishing with a seine in Buzzard's Bay, within the jurisdiction of the Commonwealth of Massachusetts. The complaint is founded upon an act of the Massachusetts' Legislature (Laws of 1886, c. 192), entitled “ An act for the protection of the fisheries in Buzzard's Bay," Section I. of which is as follows:
“No person shall draw, set, stretch or use any drag net, set net or
1 The Grange (1793), 1 Op. Att.-Gen. 32. In the case of the British ship Grange, captured by a French privateer in Delaware Bay, in 1793, Attorney-General Randolph held that Delaware Bay formed a part of the territorial waters of the United States, and was therefore neutral ground. He rested his arguments mainly upon the fact that the United States were proprietors of the lands, on both sides of the bay. Every consideration is exclu led, “how far the spot of seizure was capable of being defended by the United States. For, although it will not be conceded that this could not be done, yet will it rather appear, that the mutual rights of the States of New Jersey and Delaware, up to the middle of the river (or bay), supersede the necessity of such an investigation."
"No. The corner-stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the
gill net, purse or sweep seine of any kind for taking fish anywhere in the waters of Buzzard's Bay within the jurisdiction of this Commonwealth, nor in any harbor, cove or bight of said bay except as hereinafter provided.”
Buzzard's Bay, at its mouth, is more than one and less than two marine leagues in width-at the point where the acts complained of took place, it is more than two leagues in width, and the nearest mainland is not over a mile and a quarter away.
The defendant requested the Court of Massachusetts for a number of rulings, the first and third of which are (1) The act complained of was on the high seas, and without the jurisdiction of Massachusetts. (3) The defendant cannot be held unless the act complained of was done and committed within the body of a county, as understood at common law.
These instructions were refused, and the court told the jury that if they found that the place where the acts were done was within a marine league of the shore, it was within the jurisdiction of the Commonwealth.
The decision being against the defendant, he appealed to the Supreme Court of the United States.
Mr. Justice BLATCHFORD, after stating the case, delivered the opinion of the court:
« The principal contentions in this court on the part of the defendant are that, although Massachusetts, if an independent nation, could have enacted a statute like the one in question, which her own courts would have enforced, and which other nations would have recognized, yet when she became one of the United States, she surrendered to the general government her right of control over the fisheries of the ocean, and transferred to it her rights over the waters adjacent to the coast and a part of the ocean ; that, as by the Constitution, article 3, section 2, the judicial power of the United States is made to extend to all cases of admiralty and maritime jurisdiction, it is consistent only with that view that the rights in respect of fisheries should be regarded as national rights, and be enforced only in national courts; that the proprietary right of Massachusetts is confined to the body of the county; that the offense committed by the defendant was committed outside of that territory, in a locality where legislative control did not rest upon title in the soil and waters, but upon rights of sovereignty inseparably connected with national character, and which were intrusted exclusively to enforcement in admiralty courts, that the Commonwealth has no jurisdiction upon the ocean within three miles of the shore; that it could not, by the statute in question, oust the United States of jurisdiction; that fish