APPENDIX TO CASE OF GREAT BRITAIN. 121 
Treaty with England has never been abrogated, and was in force when the cession 
to the United States took place, and there was no need to protest against the extrava- 
_ gant pretensions of Russia in purporting to dispose of the high seas, as until last 
year no attempt had been made to enforce such a claim. 
“ AUTHORITIES QUOTED. 
“The United States have always been the strongest upholders of the law of nations, 
and on this head Kent’s Commentaries, p. 28: ‘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.’ He also refers to the claim of Russia, 
and in another place he states that the ‘United States have recognized the limita- 
tion of a marine league for general territorial jurisdiction by authorizing the Dis- 
trict Courts to take cognizance of all captures made within a marine league of the 
American shore.’ (See Act of Congress, June 5, 1794.) 
“And in Wharton’s ‘International Law Digest,’ p. 32, the author says, ‘The limit 
of 1 sea league from shore is provisionally adopted as that of the territorial sea of 
the United States,’ and ‘our jurisdiction has been fixed to extend 3 geographical 
miles from our shores, with the exception of any waters or bays which are so land- 
locked as to be unquestionably within the jurisdiction of the United States, be their 
extent what they may.’ Behring’s Sea is not a gulf or a bay, and is not landlocked 
by the lands of the United States. 
“SECRETARY SEWARD’S VIEWS. 
“ Wharton again states that ‘a vessel on the high seas beyond the distance of a 
marine league from the shore is regarded as part of the territory of the nation to 
which she belongs;’ and Mr. Seward, in a letter to Mr. Tassava, 16th Decem- 
102 _— ber, 1862, tersely states the principle as follows: ‘There are two principles 
bearing on the subject which are universally admitted: (1) that the sea is 
open to all nations; and (2) that there is a portion of the sea adjacent to every nation 
over which the sovereignty of that nation extends, to the exclusion of every other 
political authority. A third principle bearing on the subject is that the exclusive 
sovereignty of a nation abridging the universal liberty of the seas extends no 
further than the power of the nation to maintain it by force stationed on the coast 
extends. 
“<Terre dominium * * * vis.? (The sovereignty of the coast ends where the 
power to control it by force of arms terminates.) It thus appears that by the 
comity of nations, sanctioned and approved by American jurists, that the high seas 
are open to all; that the territorial authority only extends to a marine league, or, at 
all events, not further than a force on shore can protect the coasts. 
“SOVEREIGNTY CLAIMED BY THE UNITED STATES. 
“Tt also appears that the United States, in claiming sovereignty over the Beh- 
ring’s Sea, is claiming something beyond the well recognized law of nations, and 
bases her claim upon the pretensions of Russia, which was successfully repudiated 
by both Great Britain and the United States. A Treaty is valid and binding 
between the parties to it, but it cannot affect others who are not parties to it. It is 
an agreement between nations, and would be construed by law as an agreement 
between individuals. Great Britain was no party to it, and therefore was not bound 
by its terms. 
“It is therefore contended that the proceedings taken against the present defend- 
ants are ulira vires and without jurisdiction. But in order to press the matter 
further, it may be necessary to discuss the act itself under which the alleged juris- 
diction is assumed. The Act must be construed by what appears within its four cor- 
ners, and not by any extrinsic document. It is an Act defining a criminal offence, 
and an Act which abridges the privileges and immunities of citizens must be most 
strictly construed, and nothing but the clearest expression can or ought to be con- 
strued against the interest of the public in applying this principle to the present 
case. ‘The terms used in the Act itself are, ‘The waters adjacent to the Islands of 
St. George and St. Paul.’ ‘Adjacent,’ in Wharton, p. 846, is held to be adjacent to the 
coast, and within the territorial jurisdiction of the country. This language, then, 
does not apply to these defendants, who were 50 miles from the nearest coast. In 
section 1956 the language is, ‘the waters of Alaska.’ This must also be construed 
by the universal law as applying to the territorial limit only. And in a letter from 
Mr. Evarts to Mr. Foster, in April 1879, referring to a case in which certain Ameri- 
can merchant-vessels were seized by the Mexican authorities for an alleged breach 
of the Revenue Laws, although distant more than 3 miles from shore, it was held to 
be an international offence, and was not cured by a Decree in favour of the assail- 
ants by the Mexican Court. 
