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No. 2.-1791, February 1: Extract from Report of Thomas Jefferson, United States Secretary of State, on Cod and Whale Fisheries made to the House of Representatives."
It will now be proper to count the advantages which aid, and the disadvantages which oppose us, in this conflict.
Our advantages are
1. The neighbourhood of the great fisheries, which permits our fishermen to bring home their fish to be salted by their wives and children.
2. The shore fisheries, so near at hand as to enable the vessels to run into port in a storm, and so lessen the risk, for which distant nations must pay insurance.
3. The winter fisheries, which, like household manufactures, employ portions of time which would otherwise be useless.
4. The smallness of the vessels which the shortness of the voyage enables us to employ, and which consequently require but a small capital.
5. The cheapness of our vessels, which do not cost above the half of the Baltic fur vessels, computing price and duration.
6. Their excellence as sea-boats, which decreases the risk and quickens the return.
7. The superiority of our mariners in skill, activity, enterprise, sobriety, and order.
8. The cheapness of provisions.
9. The cheapness of casks, which of itself is said to be equal to an extra profit of 15 per cent.
These advantages are of such force that, while experience has proved that no other nation can make a mercantile profit on the Newfoundland fishery, nor can support it without national aid, we can make a living profit if vent for our fish can be procured.
No. 3.-1793, May 15: Letter from Mr. Jefferson (United States Secretary of State) to M. Ternant (French Minister).
PHILADELPHIA, May 15, 1793.
SIR: Having received several memorials from the British Minister, on subjects arising out of the present war, I take the liberty of inclosing them to you, and shall add an explanation of the determinations of the Government thereon. These will serve to vindicate the principles on which it is meant to proceed, and which are to be applied with impartiality to the proceedings of both parties. They will form, therefore, as far as they go, a rule of action for them and for us.
The capture of the British ship Grange, by the French frigate l'Embuscade, within the Delaware, has been the subject of a former letter to you. On full and mature consideration, the Government
Relates to fishery competition with other nationalities.
deems the capture to have been unquestionably within its jurisdiction; and that, according to the rules of neutrality, and the protection it owes to all persons while within its limits, it is bound to see that the crew be liberated, and the vessel and cargo restored to their former owners. The Attorney-General of the United States has made a statement of the grounds of this determination, a copy of which I have the honour to enclose you. I am, in consequence, charged by the President of the United States to express to you his expectation, and, at the same time, his confidence, that you will be pleased to take immediate and effectual measures for having the ship Grange and her cargo restored to the British owners, and the persons taken on board her set at liberty.
I am persuaded, Sir, you will be sensible, on mature consideration, that, in forming these determinations, the Government of the United States has listened to nothing but the dictates of immutable justice: They consider the rigorous exercise of that virtue, as the surest means of preserving perfect harmony between the United States and the Powers at war.
I have the honour to be, &c.
No. 4.-Report of the Attorney-General enclosed in above.
The Attorney General of the United States has the honour of submitting to the Secretary of State his opinion concerning the seizure of the ship Grange.
The essential facts are, That the River Delaware takes its rise within the limits of the United States;
That, in the whole of its descent to the Atlantic Ocean, it covered on each side by the territory of the United States;
That, from tide water, to the distance of about 60 miles from the Atlantic Ocean, it is called the River Delaware;
That, at this distance from the sea, it widens and assumes the name of the Bay of Delaware, which it retains to the mouth;
That its mouth is formed by the Capes Henlopen and May; the former belonging to the State of Delaware, in property and jurisdiction, the latter to the State of New Jersey;
That the Delaware does not lead from the sea to the dominions of any foreign nation;
That, from the establishment of the British provinces on the banks of the Delaware to the American revolution, it was deemed the peculiar navigation of the British Empire;
That, by the treaty of Paris, on the third day of September, 1783, His Britannic Majesty relinquished, with the privity of France, the sovereignty of those provinces, as well as of the other provinces and
And that the Grange was arrested in the Delaware, within the capes, before she had reached the sea, after her departure from the port of Philadelphia.
It is a principle, firm in reason, supported by the civilians, and tacitly approved in the document transmitted by the French Minister, that, to attack an enemy in a neutral territory, is absolutely unlawful.
Hence the inquiry is reduced to this simple form, whether the place of seizure was in the territory of the United States?
From a question originating under the foregoing circumstances, is obviously and properly excluded every consideration of a do55 minion over the sea. The solidity of our neutral right does not depend, in this case, on any of the various distances claimed on that element by different nations possessing the neighbouring shore; but if it did, the field would probably be found more extensive, and more favourable to our demand, than is supposed by the document above referred to. For the necessary or natural law of nations, unchanged as it is, in this instance, by any compact or other obligation of the United States, will, perhaps, when combined with the treaty of Paris in 1783, justify us in attaching to our coasts an extent into the sea beyond the reach of cannon shot.
In like manner is excluded every consideration, 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, 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 sea.
The high ocean, in general, it is true, is unsusceptible of becoming property. It is a gift of nature, manifestly destined for the use of all mankind; inexhaustible in its benefits; not admitting metes and bounds. But rivers may be appropriated, because the reverse is their situation. Were they open to all the world, they would prove the inlets of perpetual disturbance and discord; would soon be rendered barren by the number of those who would share in their products; and moreover may be defined.
A river, considered merely as such, in the property of the people through whose lands it flows, or of him under whose jurisdiction that people is.-Grot. b. 2. c. 2, s. 12.
Rivers might be held in property; though neither where they rise, nor where they discharge themselves, be within our territory, but they join to both, or the sea. It is sufficient for us that the larger part of water, that is, the sides, is shut up in our banks, and that the river, in respect of our land, is itself small and insignificant.-Grot. b. 2. c. 3, s. 7; and Barbeyrac, in his note, subjoins, that neither of those is necessary.
Rivers may be the property of whole States.-Puff. b. 3, c. 3, s. 4.
To render a thing capable of being appropriated, it is not strictly necessary that we should enclose it, or be able to enclose it, within artificial bounds. or such as are different from its own substance; it is sufficient, if the compass and extent of it can be any way determined. And therefore Grotius hath given himself a needless trouble, when, to prove rivers capable of property, he useth this argument, that, although they are bounded by the land at neither end, but united to the other rivers or the sea, yet it is enough that the greater part of them, that is their sides, are enclosed.-Puff. b. 4, c. 5, s. 3.
When a nation takes possession of a country in order to settle there, it possesses everything included in it, as lands, lakes, rivers, &c.-Vattel, b. 1, c. 22, s. 266.
To this list might be added Bynkershoek and Selden. But the dissertation of the former, de dominio maris, cannot be quoted with advantage in detachment; and the authority of the latter, on this head, may, in the judgment of some, partake too much of affection for the hypothesis of mare clausum. As Selden, however, sinks in influence
on this question, so must Grotius rise, who contended for the mare liberum; and his accurate commentator, Rutherforth, confirms his principles in the following passage:
A nation, by settling upon any tract of land, which at the time of such settlement had no other owner, acquires, in respect of all other nations, an exclusive right of full or absolute property, not only in the land, but in the waters likewise that are included within the land, such as rivers, pools, creeks, or bays. The absolute property of a nation, in what it has thus seized upon, is its right of territory.-2 Ruth. b. 2, c. 9, s. 6.
Congress, too, have acted on these ideas, when, in their collection laws, they ascribe to a State the rivers wholly within that State.
It would seem, however, that the spot of seizure is attempted to be withdrawn from the protection of these respectable authorities, as being in the Bay of Delaware, instead of the River Delaware.
Who can seriously doubt the identity of the River and Bay of Delaware? How often are different portions of the same stream denominated differently? This is sometimes accidental; sometimes, for no other purpose than to assist the intercourse between man and man, by easy distinctions of space. Are not this river and this bay fed by the same springs from the land, and the same tides from the ocean? Are not both doubly flanked by the territory of the United States? Have any local laws, at any time, provided variable arrangements for the river and the bay? Has not the jurisdiction of the contiguous States been exercised equally on both?
But suppose that the river was dried up, and the bay alone remained, Grotius continues the argument of the 7th section, of the 3d chapter, of the 2d book above cited, in the following words:
By this instance it seems to appear, that the property and dominion of the sea might belong to him, who is in possession of the lands on both sides, though it be open above, as a gulf, or above and below, as a strait; provided it is not so great a part of the sea, that, when compared with the lands on both sides, it cannot be supposed to be some part of them. And now, what is thus lawful to one king or people, may be also lawful to two or three, if they have a mind to take possession of a sea, thus enclosed within their lands: for it is in this manner that a river, which separates two nations, has first been possessed by both, and then divided.
The gulfs and channels, or arms of the sea, are, according to the regular course, supposed to be belong to the people with whose lands they are encompassed.-Puff. b. 4, c. 5, s. 8.
Valin, in b. 5, tit. 1, p. 685, of his commentary on the marine ordonnance of France, virtually acknowledges that particular seas may be appropriated. After reviewing the contest between Grotius and Selden, he says, "S'il (Selden) s'en fût donc tenu là, ou plutôt, s'il eût distingué l'ocean des mers particuliéres, et même dans l'ocean, l'etendue de mer, qui doit être censée appartenir aux Souverains des côtes, qui en sont baignées, sa victoire eût été complette.".
These remarks may be enforced by asking, what nation can be injured in its rights, by the Delaware being appropriated to the United States? And to what degree may not the United States be injured, on the contrary ground? It communicates with no foreign. dominion; no foreign nation has ever before, exacted a community of right in it, as if it were a main sea: under the former and present Governments, the exclusive jurisdiction has been asserted; by the very first collection law of the United States, passed in 1789, the county of Cape May, which includes Cape May itself, and all the
waters thereof, theretofore within the jurisdiction of the State of New Jersey, are comprehended in the district of Bridgetown; the whole of the State of Delaware, reaching to Cape Henlopen, is made one district. Nay, unless these positions can be maintained, the Bay of Chesapeake, which, in the same law, is so fully assumed to be within the United States, and which, for the length of the Virginia territory, is subject to the process of several counties to any extent, will become a rendezvous to all the world, without any possible control from the United States. Nor will the evil stop here. It will require but another short link in the process of reasoning, to disappropriate the mouths of some of our most important rivers. If, as Vattel inclines to think in the 294th section of his first book, the Romans were free to appropriate the Mediterranean, merely because they secured, by one single stroke, the immense range of their coast, how much stronger must the vindication of the United States be, should they adopt maxims for prohibiting foreigners from gaining, without permission, access into the heart of their country.
This inquiry might be enlarged by a minute discussion of the practice of foreign nations, in such circumstances. But I pass it by; because the United States, in the commencement of their career, ought not to be precipitate in declaring their approbation of any usages, (the precise facts concerning which we may not thoroughly understand) until those usages shall have grown into principles, and are incorporated into the Law of Nations; and because no usage has ever been accepted, which shakes the foregoing principles.
The conclusion then is, that the Grange has been seized on neutral ground. If this be admitted, the duty arising from the illegal act is restitution.
May 14, 1793.
No. 5.-1793, November 8: Letter from Mr. Jefferson (United States Secretary of State) to M. Genet (Minister of France).
GERMANTOWN, November 8, 1793.
SIR: I have now to acknowledge and answer your letter of September 13, wherein you desire that we may define the extent of the line of territorial protection on the coasts of the United States, observing that Governments and jurisconsults have different views on this subject.
It is certain that, heretofore, they have been much divided in opinion as to the distance from their sea coasts, to which they might reasonably claim a right of prohibiting the commitment of hostilities. The greatest distance, to which any respectable assent among nations has been at any time given, has been the extent of the human sight, estimated at upwards of twenty miles. and the smallest distance, I believe, claimed by any nation whatever, is the utmost range of a cannon ball, usually stated at one sea-league. Some intermediate distances have also been insisted on, and that of three sea-leagues has some authority in its favour. The character of our coast, remarkable in considerable parts of it for admitting no vessels of size to pass near the shores, would entitle us, in reason, to as broad a margin of protected navigation, as any nation whatever. Not proposing,