national line, surrendered its rights over those waters is further illustrated by the fact that, on numerous occasions, the State Department has addressed communications to the governors of the states of New York, Indiana, Illinois, Michigan, Ohio, Pennsylvania, and Wisconsin, urging them, in conformity with certain pledges made by the United States to Great Britain, to permit British subjects to use state waters.30

as

While there are many instances where bodies of water designated are within the exclusive jurisdiction and control of a certain or certain nations, it seems to be a well-settled principle of international law that the term "high seas" is applicable only to such waters as lie outside one marine league from the shore. Such waters are the property of no nation; all have equal rights thereon. Text writers upon international law make a mistake in stating that the high seas are the "common property of all nations." For the reason that they are incapable of being owned, they can not be held by nations even as tenants in common.

The open sea is not capable of being possessed as private property. The free use of the ocean for navigation and fishing is common to all mankind and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all nations meet. there, in time of peace on a footing of entire equality and independence." The High Seas are said in a certain sense to be nullius territorium.32 The sea is made up of two parts, the "high or open sea and the "marginal" or "jurisdictional There can be no "high sea" unless there is, surrounding it, a marginal sea. That England and the United States did not divide the ocean which lay between them, would seem to indicate that the ocean and the Great Lakes were considered in a different light at the time of the treaty

"

sea.

30 Moore: International Law Dig., vol. 1, pp. 678, 679. 31 Kent's Commentaries, vol. 1, p. 29, 8th ed.

32 Sir Travers Twiss: Law of Nations, p. 290. 1884. See Moore: International Law Dig., vol. 1, p. 699; Herbert Walcott Brown: International Law, p. 8. 1896; Gallaudet: International Law, pp. 118, 121. 1886; Lawrence: Modern International Law, pp. 44, 46; Lawrence: Principles of International Law, p. 205. 1895; John Westlake: International Law, pp. 160, 175. 1904; Woolsey: International Law, secs. 54, 55, pp. 79, 81; L. Oppenheim: International Law, p. 306. 1905; W. E. Hall: International Law, 5th ed., pp. 59, 140.

of Paris. The bed of the Great Lakes is, up to the international line, the private property of Great Britain and the bordering Union states, and is part and parcel of their territory.33 Their jurisdiction is as exclusive up to the line as over land within their recognized boundaries. The states bordering upon the sea also own that part of the sea bed which lies between their shores and the point where the "marginal” and “high seas" unite. unite. It would appear that there is no "marginal sea" within the Great Lakes, for the reason that the waters are owned up to the arbitrary international boundary, regardless of distance.

There being no common or unappropriated waters on the Great Lakes and their connecting rivers and they containing no marginal sea, no part of their waters can be considered as "high seas."

NAVIGATION

By treaty, both the United States and Great Britain have equal right to navigate any part or portion of the Great Lakes.34 No other nation has been a party to these or any other treaties respecting the right to navigate the Great Lakes.35

Under the law of nations, waters which mark the dividing line between the possessions of two nations have long been deemed open to the free navigation of such powers, and within their admiralty jurisdiction.36

By the Treaty of Washington (articles 27 and 28), the United States granted to Great Britain the right to navigate the St. Clair Flats Canal and Lake Michigan, subject to local restrictions, in return for the favor of the use, by it, for purposes of navigation, of the Welland Canal and the St .Lawrence River. That Great Britain should be compelled to secure the right to navigate American waters, and the United States be compelled to secure the right to navigate Canadian waters by treaty, would seem to indicate that the waters of

33 Lake Front Case, 146 U. S. 387.

34 Jay's Treaty, November 19th, 1794. Webster-Ashburton Treaty, August 9th, 1842. Treaty of Washington, May 8th, 1871.

35 Henry Clay, Secretary of State, to Mr. Gallatin, Minister to England, June 19, 1826.

36 The Apollon, 9 Wheat. 362, 369. 1824.

the Great Lakes are territorial, and that no other nation could navigate them unless a like treaty were entered into with the two first named powers.

The United States secured special consent from Great Britain to allow an agent of the United States Coast Survey to place signals in Canadian waters to aid in a survey.37

If it be true that the Great Lakes are high seas, it logically follows that any European power may punish a crime committed upon the lakes in their own courts whenever it is able to lay hands on the offender It would also follow that other nations than England and America would have the right to navigate these seas without any local restrictions, and even to send their fleets there and perhaps engage in hostilities upon its waters.3

38

The learned judge might have added that all the rights which any nation has over merchantmen upon the high seas in time of war would exist and be exercisable upon the Great Lakes.

If the right to navigate certain waters is not free and open alike to all nations and all peoples, or is curtailed by restrictions not imposed by all maritime nations, they can not be "high seas."

WRECKING

Both Great Britain and the United States were denied the privilege of wrecking in waters not their own until the courtesy was accorded by reciprocal legislation.

The lack of a wrecking privilege in Canadian waters resulted in great injury to American shipping, and in 1878 39 Congress passed an act looking to a mutual arrangement. Owing to the failure of Canada to respond with like legislation, the matter was abated. It was again taken up in 1890 (May 24), by an act of Congress, and reciprocal action was taken in Canada, May 10, 1892. Proclamation was issued by President Cleveland July 17, 1893.

The matter seems now to be covered by treaty between Great Britain and the United States signed at Washington May 18, 1908.40

37 Moore: International Law Dig., vol. 2, p. 364.

38 Mr. Justice Brown, U. S. v. Rodgers, p. 283.

39 June 17, "An act to aid vessels wrecked or disabled in the waters coterminous to the United States and the Dominion of Canada."

40 See SUPPLEMENT to this JOURNAL, 2:303.

That nations other than the treaty parties should have rights of wrecking in the Great Lakes without undergoing the same course can truly be doubted.

Since, then, the open sea is not the territory of any state, no state has regularly a right to exercise its legislation, administration, jurisdiction or police over parts of the open sea.11

If the lakes are "high seas," the right of wrecking would, without question, exist in favor of every nation, without treaty stipulation.

FISHING RIGHTS

Within a year after the decision of United States v. Rodgers, our State Department was called upon to pass an opinion relative to the right of Americans to fish in Canadian waters outside one marine league from the Canadian shore. In holding that they did not possess such a right, Mr. Uhl said: 42

Conceding then, that the Great Lakes, (including Lake Michigan which lies wholly within the boundaries of the United States) are "high seas" within the meaning of our federal crimes act, it by no means follows that those waters are "high seas" as regards territorial rights of the sovereignties which own their shores.

Again:

The right of fishing can not, by any parity or stretch of reasoning, be deemed a part of the stipulated rights of navigation and transit.

There is basis for the assertion that there is no marginal sea within the Great Lakes. After England and the United States divided the Great Lakes and their connecting streams, both Canada and the riparian states took jurisdiction over fisheries up to the international line.

It is admitted that the grant to Congress to regulate commerce on the navigable waters of the several states contains no cession of territory, and that the states may by law regulate the use of fisheries and oyster beds within the territorial limits, though upon navigable waters, provided

41 L. Oppenheim: International Law, vol. 1, p. 311.

42 Letter by Mr. Uhl, Acting Secretary of State to Messrs. Laughlin, Ewell and Houpt, May 23, 1894.

the free use of the waters for the purposes of navigation and commercial intercourse be not interrupted.43

In direct conflict with the views of Kent appear to be those of Griggs. His view of the matter was that the

Regulation of fisheries in navigable waters within the territorial limits of the several states is, in the absence of treaty, a subject of state rather than federal jurisdiction; that the Government of the United States has power to enter into treaty stipulations on the subject with Great Britain for the regulation of fisheries in the waters of the United States and Canada along the international boundary; that the fact that a treaty provision would annul and supersede a particular state law on the subject would be no objection to the validity of the treaty."

The United States government entered into treaty relations with Great Britain upon this subject.*

45

However, viewed from any point, it clearly appears that the rights of the United States and of Great Britain to the fisheries of the Great Lakes are as exclusive, to the international line, as their jurisdiction over their shores, which is in direct conflict with the rights enjoyed by all nations upon the high seas.46

CRIMINAL JURISDICTION

Upon the high seas, every vessel, public or private, is, for jurisdictional purposes, an elongation of the territory of the nation of its owners, and of the flag which it bears. An offense committed on board such vessel is an offense against the sovereignty of that nation. Except for such a rule, crimes committed upon ship board would be without the jurisdiction of any nation and left to private parties to settle, or at the next port of entry.47

43 Kent's Commentaries, vol. 1, p. 485, 8th ed.

44 Griggs, Atty. Gen., Sept. 20, 1898, 22 Op. 214; Moore:

Dig., vol. V., p. 161.

International Law

45 Treaty signed at Washington, April 11, 1908, SUPPLEMENT to this JOURNAL, 2:322.

46 Geo. B. Davis: Outlines of International Law, p. 42. 1887; Geo. B. Davis: Elements of International Law, p. 60. 1903; Sir Travers Twiss: Law of Nations, p. 300. 1884; L. Oppenheim: International Law, vol. 1, p. 333. 1905.

47 Sir Sherston Baker: First Steps in International Law, p. 80. 1899; Maxey: International Law, p. 228. 1906. See also any work on international law.