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to the other, and states the matter in substantial accordance with our own views.

The Board of Regents has not yet acted upon the subject as presented by these Reports. At a special meeting in July last the matter was deferred until the meeting in January We cannot help feeling assured that at that time they will see the importance of promptly retrieving the errors which now disfigure the management of the Institution.


ART. IX. A Treaty extending the Right of Fishing, and regulating the Commerce and Navigation between her Britannic Majesty's Possessions in North America and the United States, concluded in the City of Washington on the fifth day of June, Anno Domini 1854, between the United States of America and her Majesty the Queen of the United Kingdom of Great Britain and Ireland. State Paper. Washington. 1854.

We believe that this journal may claim the credit of having led the way in preparing the public mind for the great measure which has been consummated by the ratification, on the part of the United States, of the MARCY AND ELGIN TREATY, and by the passage through Congress of the Free List of articles enumerated therein. In our January number of 1852 an elaborate argument was presented, exhibiting the benefits that would flow from such an arrangement. At the moment when the Treaty went before the Senate of the United States, at its recent session, our article was republished in full by the Washington papers. It is well, perhaps, to mention these facts, in justice to the quarterly journals, which, in this instance at least, instead of bringing up the rear, in the venerable guise of Old Fogyism, actually took the lead, from the start, in the most dashy style of Young America, in one of the boldest progressive movements of the country and the age.

We propose, in the present article, to state the grounds of

our conviction that the Reciprocity Treaty between this country and Great Britain, in reference to the North American Provinces, is one of the wisest arrangements ever made between commercial states, alike honorable to both negotiators, beneficial to all parties, and most auspicious of a better and brighter day in the trade and intercourse of nations.

We approve of the Treaty, in the first place, because it cannot but tend, in its general and ultimate results, and especially in its influence upon the public sentiment and habitual usage and practice of the two great powers concerned in it, to restore and establish for ever the doctrine of the Freedom of the Seas.


That doctrine is not at present entertained, in its primitive, legitimate, and comprehensive sense, in this country, any more than in England. A narrow, illiberal, and unphilosophical heresy has usurped its place, a heresy the accidental result of a most artificial state of things in modern European history. Circumstances happened to give to several nations, possessing each a very limited territory, at successive periods, a commercial ascendency amounting to all but a monopoly of the navigation of the world, and they were tempted, in turn, to arrogate the exclusive dominion of the ocean. Spain, Portugal, and even Venice, severally, in their day, put forth the pretension. So also Holland, with a territory scarce larger than some of our American counties, a submerged mud-flat, rescued by dikes from the ocean,-in the pride of her wonderful commercial supremacy, brandished a broom from the mast-head of her flag-ships, proclaiming in vaunting significance that her power and jurisdiction swept over all seas. Finally, England, having triumphed over Holland after a struggle closely contested and long continued, asserted the same monstrous pretensions, and, by her influence upon public law, succeeded to some extent in giving a legal force and authoritative interpretation to her proud boast of being the mistress of the seas. Although occupying, in her realm proper, but a small, rockbound, storm-beaten, fog-enveloped island in the North Atlantic, she has claimed, in no equivocal language, to rule the waves of the whole globe. Out of these pretensions of successive ambitious maritime states arose the famous controver

sies between "Mare Liberum" and "Mare Clausum," in which the various combatants ranged themselves respectively under the lead of Grotius and Selden.

Notwithstanding, however, the fact that these grasping claims have been put forth by a series of powerful nations, each at times controlling the commercial world, so repugnant are they to reason and the nature of things, that they never could prevail in embodying themselves, to any great extent, in the code of recognized and permanent public law.

The bull of Pope Alexander VI., which conferred upon Ferdinand and Isabella half the globe, by a line running from the North to the South Pole, a hundred leagues west of the Azores, granted only the "lands and islands." The early colonial charters by which British monarchs gave the North American continent in strips “from sea to sea" to favored companies of their subjects, did not pretend to convey any part or portion of the deep ocean or open sea. They did not assume, as Great Britain has of late, to strike a line from distant capes across bays and gulfs hundreds of miles in width. The nearest approach in the original colonial charters to extravagant pretensions is one in which jurisdiction was asserted in the Bay of Fundy, from Cape Sable round to Sagadahoc, following the shore, and extending over the intra-insular waters where the islands were not more than thirty miles from the mainland. This instance, by the way, is itself a direct and unanswerable refutation of the "headland" doctrine. There is nothing in the recognized and acknowledged pretensions of any of the modern nations at the present day to countenance such a doctrine, unless, perhaps, the Elsineur toll; and even that is felt to be an outrage, and our government, we trust, will persevere in the efforts it is understood to be making, until this nuisance is abated and the Baltic made free.

Upon the whole, we repeat the declaration, that, notwithstanding the pretensions put forth in various forms and at different times by grasping and monopolizing naval powers, the public law of nations has never been made to receive, to any considerable extent, their extravagant interpretations. A careful examination of its highest authorities, such as Grotius, Puffendorf, and Vattel, will lead to the conclusion of Sir Wil

liam Scott, that "the general inclination of the law is against the claim of territory to contiguous portions of the sea. In the sea, out of the reach of cannon-shot, universal use is presumed."

The principle seems to be, that nations bordering on the sea have jurisdiction over it so far only as they can control or profitably use it from the shore,-control it by cannon-shot, and use it for nets and in boats, or by getting shell-fish from its beaches, rocks, and flats. A marine league is a reasonable and just measure of both the control over the sea and the profitable use of it from the shore.

Mr. Jefferson, in a letter to Genet, November 8th, 1793, mentioned twenty miles, being the measure of vision, as the utmost that could be claimed, and announced that this government was satisfied not to claim jurisdiction beyond a marine league from the shore; and on the 30th of March, 1822, John Quincy Adams, in a letter to the representative of Russia, repudiated the claim which that government made to the North Pacific from Behring's Straits to the fifty-first degree of latitude, on the ground of its being a "close sea," in consequence of Russia's owning both shores down to that parallel. Mr. Adams, on that occasion, said that American vessels had always navigated those seas, and that a right to do so was "a part of our independence."

The Marcy and Elgin Treaty sets aside the monstrous "headland" doctrine, recently enforced by Great Britain in our Northeastern seas, and virtually abandons even the "marine league" doctrine. We hail it, therefore, as re-establishing, with the high authority of the two great, first-rate powers who are parties to it, the original and true principle of the Freedom of the Seas.

That principle is founded upon reason, instinct, nature. The ocean is the great highway for all mankind. It is incapable of being distributed by demarcation, or laid out to different proprietors by metes and bounds. No walls of partition can stand against its mighty swell. Wherever it dashes its waves, their voice welcomes all dwellers upon its shore to launch freely upon its open bosom, and traverse, without let or hindrance, its illimitable wastes. All that it contains is

the common property of all. As we have stated, the charters of kings, that carved a continent into slices from sea to sea, and the bulls of popes, that conveyed away a hemisphere by a dash of the pen, never pretended, even in the monstrousness of their assumption, to exclusive right to the deep seas, or their occupants. They claimed no monopoly of the leviathan, the porpoise, the cod, or the mackerel, whether within three or three hundred miles from the shore.

However narrow the territory that abuts upon the sea, that territory has a full and perfect right to its use. Wherever there is room to launch a keel upon the ocean, to that spot a right to navigate it, from pole to pole, at once enures. You can no more appropriate to a private and exclusive possession the fluctuating and tossing seas, or the eternal currents that sweep through them, or the tides that rise and fall along their shores, than the storms that howl over them, or the tradewinds that pursue their long and constant paths, or the variable breezes that baffle the calculations of the mariner. It is as absurd for any state to claim a property in shoals of fish that perform annual migrations along its coasts, as it would be to claim a property in flocks of wild-fowl, that

"In common, ranged in figure, wedge their way,
Intelligent of seasons,

Flying, and over lands."

high over seas

We approve and support the Treaty, in the second place, because it restores to us the Freedom of the Fisheries in American seas. The importance of the fisheries, in a national point of view, is not adequately, and cannot be too highly, estimated. They have been, in modern times, the only basis upon which a really solid and permanent maritime or commercial strength has been achieved. Holland reached her amazing wealth and power, in the middle of the seventeenth century, by her fisheries. Amsterdam was spoken of as "the city built upon herring-bones." England could command success over Holland, in the memorable and protracted struggle between them, only by reinforcing her energies from the same fountain of national power. The Gulf of St. Lawrence has done more to rear France and England into greatness,

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