John J. (John Joseph) Lalor.

Cyclopædia of political science, political economy, and of the political history of the United States online

. (page 235 of 290)
Online LibraryJohn J. (John Joseph) LalorCyclopædia of political science, political economy, and of the political history of the United States → online text (page 235 of 290)
Font size
QR-code for this ebook

from the coast. Such laws are no real exception
to the rule, being based upon the principle that a
state has a perfect right to say to foreign ships
voluntarily seeking its ports, that they shall not,
without complying with its law, enter into its
ports, and that if they do enter, they shall be sub-
ject to penalties unless they have previously com-
plied with the requisitions ordained; whether these
requisitions be, as in former times, certificates of
origin, or clearances of any description from a
foreign port, or clean bills of health, or the taking
on hoard a pilot at any place in or out of its juris-
diction before entering its waters.^ Other local
laws containing provisions affecting foreign ships,
or foreigners within such ships, in respect to acts
committed or omitted beyond the marine league
belt, are referable to the same principle. 2. Cus-
toms laws and hovering acts, which authorize mu-
nicipal seizures beyond the marine league. "It
will not," says Dana,* "be found that any con-
sent of nations can be shown in favor of extending
what may be strictly called territoriality, for any
purpose whatever beyond the marine league or
cannon shot. Doubtless states have made laws,
for revenue purposes, touching acts done beyond
territorial waters; but it will not be found, that,
in later times, the right to make seizures beyond
such waters has been insisted upon against the re-
monstrance of foreign states, or that a clear and
unequivocal judicial precedent now stands sus-
taining such seizures, when the question of juris-
diction has been presented. The revenue laws of
the United States, for instance, provide, that, if a
vessel bound to a port in the United States, shall,
except from necessity, unload cargo within four
leagues of the coast, and before coming to the
proper port for entry and unloading, and receiving
permission to do so, the cargo is forfeit, and the
master incurs a penalty (Act March 3, 1797, sec.
37); but the statute does not authorize the seizure
of a foreign vessel when beyond the territorial ju-
risdiction. The statute may well be construed to
177 VOL. m. — 58

mean only that a foreign vessel coming to an
American port, and there seized for a violation of
revenue regulations committed out of the jurisdic-
tion of the United states, may be confiscated; but
that, to complete the forfeiture, it is essential that
ths vessel shall be bound to, and shall come with-
in, the territory of the United States, after the
prohibited act. The act done beyond the juris-
diction is assumed to be part of an attempt to vio-
late the revenue laws within the jurisdiction. If
foreign vessels have been boarded and seized on
the high sea, and have been adjudged guilty, and
their governments have not objected, it is proba-
bly either because they were not appealed to, or
have acquiesced, in the particular instance, from
motives of comity." Phillimore and Twiss both
substantially agree with Dana, and hold that judg-
ments affirming the legality of municipal seizures
beyond one marine league could not have been
sustained if the foreign state whose subject's
property had been seized had thought proper to
interfere, unless, perhaps, wlien that state had
put in force or at least enacted, for its own benefit,
a similar municipal law. 3. The waters in the
centre of certain straits, gulfs and bays, which
central waters lie outside the limit of a marine
league from any of the adjacent coasts, are claimed
to be territorial waters, and certain gulfs are in
actual practice so treated. Prance appears to
claim inlets whose entrance is not more than ten
miles wide. England long claimed the " Queen's
Chambers," these being waters within headlands
as distant as Orfordness from the Foreland. The
bay of Conception, in Newfoundland, which pen-
etrates forty miles into the land, and is fifteen
miles in mean breadth, was recently decided to
be territorial water by the privy council. The
United States claimed Delaware bay in 1798. " Of
practice," says Hall, ^ "there is a curious defi-
ciency, and there is nothing to show how many
of the claims to gulfs and bays which still find
their place in the books, are more than nominally
alive. It is scarcely possible to say anything more
definite than that, while on the one hand it may
be doubted whether any state would now seriously
assert a right of property over broad straits or
gulfs of considerable size and wide entrance, there
is, on the other hand, nothing in the conditions of
valid maritime occupation, to prevent the estab-
lishment of a claim either to basins of considerable
area, if approached by narrow entrances, such as
of the Zuyder Zee, or to large gulfs which, in
proportion to the width of their mouth, run deep-
ly into the land even when so large as the bay of
Fundy, or, still more, to small bays, such as that
of Cancale." — The United States, being an inde-
pendent state, has the international rights and is
under the international obligations above de-
scribed, in respect to the open sea which washes
its coast; but, being a federal Union, jurisdiction
and ownership over these waters, as between its
constituent members, are regulated, not by inter-
narional law, but by the terms of that Union.
Thus it has been decided' that the article of the



constitution which describes the iudicial i!ower,
and extends it to cases of admiralty and maritime
jurisdiction, does not make a cession of territory
or of general jurisdiction, so as to vest in the
United States the shores of the sea, below low-
water mark, and that whatever soil below low-
water mark, within the ebb and flow of the tide,
is the subject of exclusive property and owner-
ship, belongs to the state within whose territory
it lie's, subject to any lawful grants to that soil by
the state or sovereign power which governed its
territory before the declaration of independence.
Massachusetts, for instance, expressly asserts, '
that, " The territorial limits of this commonwealth
extend one marine league from its seashore at low-
water mark. When an inlet or arm of the sea
does not exceed two marine leagues in width, be-
tween its headlands, a straight line from one
headland to the other is equivalent to the shore
line. The boundaries of counties bordering on
the sea shall extend to the line of the state, as
above defined." So the counties and towns in
the state of New York which are bounded gener-
ally on Long Island sound, comprehend * within
their limits, for the purpose of ordinary civil and
criminal jurisdiction, the waters between their re-
spective shores and the exterior water line of the
state. Subject, then, to the paramount right of
navigation, the regulation of which in relation to
foreign and Inter-state commerce has been granted
to the United Slates, each state owns ' the beds of
all tide waters within its jurisdiction, unless they
have been granted away, and may appropriate
them, to be used by its citizens as a common for
taking and cultivating flsh, if navigation is not
thereby obstructed. In like manner, the state owns
the tide waters themselves and the flsh in them, so
far as they are capable of ownership while run-
ning. The right which the citizens of the state
thus acquire is a property right, and not a mere
privilege or immunity of citizenship, and a law of
a state, as Virginia, prohibiting citizens of other
states from planting oysters in the soil covered by
her tide waters, is neither a regulation of com-
merce nor a violation of any privilege or immuni-
ty of inter-state citizenship. — See Phillimore's
Commentaries upon International Law, vol. i.,
chaps. 4^8, Philadelphia, 1854 ; Kent's Commen-
taries, 12th ed., vol. i., pp. 26-36; Twiss' The Law
of Nations (Time of Peace), London ed., 1861,
chap. 10; Woolsey's Intemaiiorial Law, 5th ed.,
sees. 56-63; Holland's Jurisprudence, pp. 297, 298;
' Twiss' Arts, in Law Magazine, 1877; ^ The Queen
vs. Keyn, 2 L. R., Ex. Div., pp. 63-240; » Lush.,
Adm., 295; * Wheaton's International Lam, chap,
iv., sees. 177-206; ' 'R&Wi International LoM, pp.
104-130, Oxford, 1880; « United StaUs vs. Bevans,
3 Wheaton, 336; ' Pub. Stats, of Mass., title 1,
chap. 1, sec. 1, and title 6, chap. 22, sec. 1; « Mali-
ler vs. Transportation Co., 35 N. Y. 352 ; ' Mc-
Cready vs. Virginia, 94 U. S., 391 ; Territorial
Waters Jurisdiction Act, 1878, 41 and 42 Vict.,
cap. 73; Foreign Relations of U. 8., 1878, pp.
245-251. James Fairbanks Colby.

TERRITORIES (in U. S. History). Before
the American revolution the thirteen colonies were
"territories" of the British empire: that is, they
held much the same relation to the British empire
that the present territories hold to the United
States. They had many political privileges: they
had assemblies of their own, which made their
local laws, laid their local taxes, and paid their
local officers; three of them until 1691, and two
of them thereafter, elected their own governors

AND); and in very many respects all of them were
self-governing commonwealths. But, whatever
the colonies may have thought of the matter, in
the view of the mother country these privileges
had their basis in the continuing will of the Brit-
ish sovereignty. The kiaig had no right, theoret-
ically, to alienate permanently any of the prerog-
atives of the crown; and when his judges or his
parliament advised him that any of the privileges
which he had granted to the colonies were abused,
or proved to be inherently vicious, it was his duty
to revoke or alter them. Even a "charter," in
this way of looking at it, had no inherent sanc-
tity; it was no contract between king and people,
but a grant by the king of privileges whose per-
manence was conditioned on the advantage of
their results to the mother country. Connecticut
had the privilege of electing its own governors
down to the revolution; but the privilege had no
solider basis than in Massachusetts, where it was
revoked in the charter of 1691. Of course the
colonies saw the matter dlllerently. (See Revo-
lution.) But we are considering now only the
view taken by the sovereignty in both cases; and
from that point of view it is difficult to see any
great difEerence between the status of the colonies
under the British empire, and of the territories
under the United States. Both had political priv-
ileges, but in both the continuance of the privi-
leges was dependent on the continuing will of the
superior, and on the advantages of the arrange-
ment to the superior. The history/ of the territo-
ries of the United States will, it is confidently
submitted, show the inflnite superiority of the
American over the British colonial . policy. In-
deed, its superiority has become so apparent that
the British policy has of late years been radically
altered in the direction of the American policy.
— I. Acquisition. 1. Under the Colonies. Six
of the colonies, New Hampshire, Rhode Island,
New Jersey, Delaware, Pennsylvania and Mary-
land (see their names), haddeflned western bound-
aries; the other seven, Massachusetts, Connect-
icut, New York, Virginia, North Carolina, South
Carolina and Georgia, had none, unless we may
consider the Paciflc ocean, assigned in the charters
and grants of most of them, as a western bound-
ary. There were some irregularities. The bound-
aries of New Hampshire were always exceedingly
vague; and, though most of then? were settled by
convention with Massachusetts, the New Hamp-
shire authorities asserted an indeflnite claim to the
territory to the west, to which New York long



opposed an equally indefinite claim. (See Vbb-
MONT.) New York, as it came into the hands of
the English, consisted only of the strip of land on
both sides of the Hudson river, which the Dutch
had settled. To the north and west of Albany
there was a vast extent of Indian territory, whose
tribes had either been conquered by the Dutch or
had made treaties with them. New York, there-
fore, claimed a sort of suzerainty over it, without
any express. grant from the king. The claim
was in effect recognized by the king's proclama-
tion of 1763, constituting the province of Quebec,
and by the act of parliament of 1774, defining its
boundaries; the two ran the boundary line between
•Canada (Quebec) and New York very much as at
present. This really satisfied New York, and yet
that colony, perhaps to call attention away from
the vagueness of Its acknowledged title, continued
to assert a much vaguer claim to still further
western territory. Massachusetts, Connecticut,
Vii'ginia, and the colonies to the south, were
"bounded west by the Pacific ocean in their grants.
Virginia (see that state) asserted that her northern
boundary ran northwest, instead of west, so that
her territory was continually widening as it wont
westward. The boundaries of Maryland and of
the western part of Pennsylvania conflicted with
Virginia's claim, but Virginia yielded in these re-
spects, for the purpose of establishing the rest of
her claim. South Carolina had really been given
.a western boundary by the formation of the col-
ony of Georgia, which cut off her further expan-
sion to the west; but it was not yet known whether
■Georgia covered the whole western boundary of
South Carolina, and the latter colony claimed that
■a, narrow strip along the northern edge of its
former territory still remained. If there was any
■such strip it was not more than a dozen miles wide.
— The king's proclamation of Oct. 7, 1763, after
•constituting the new provinces of Quebec and the
Ploridas, declared it to be his "royal will and
pleasure," as to the territory between them, " to
reserve under our sovereignty, protection and do-
minion, for the use of the said Indians, * * * all
the lands and territories lying to the westward
■of the sources of the rivers which fall into the sea
from the west and northwest." This was clearly
the establishment of a western boundary for all the
colonies which had hitherto had none; and the
ground of the establishment was as clearly the
asserted right and duty of the king to modify his
grants and charters, when their results proved to
he injurious to the interests of the empire. The
right was always denied by the colonies, and their
resistance to it was one of the most powerful
forces which led to the revolution; and yet, curi-
ously enough, when independence was establislied,
this very proclamation was asserted by the states
which had original western boundaries as a valid
assignment of a western boundary for the others.
— Virginia hardly showed an enterprise in assert^^
ing western claims commensurate with their mag-
nitude and importance. The first Virginia ex-
ploring party crossed the Blue Ridge in 166Q; but

it was not until 1713, under Spotswood's adminis-
tration, that the country beyond the mountains
was reduced to possession. Before the middle of
the eighteenth century, settlements had crossed
the mountains. The organization of the Ohio
company in 1748-9 was due to individual Virginia
enterprise; but in the French and Indian war,
which followed it (see Wars, I.), Virginia sup-
ported the company with her whole force. The
place of the first struggles, though now in western
Pennsylvania, was then supposed to he in Virginia.
In 1774 Gov. Dunmore led the Virginia forces
against the Scioto Indians, and compelled them to
make peace; but his motives in the expedition
were strongly suspected to be selfish. The settle-
ment of Kentucky (see that state) was also due to
individual enterprise; and its formal establish-
ment as a Virginia county in 1776 was almost
forced on Virginia by George Rogers Clarke, a
Virginia surveyor resident in Kentucky. Clarke
at once became the champion of Virginia's inter-
est in the northwest. In 1778-9 he led a Ken-
tucky force into Illinois, and conquered' that ter-
ritory and Vincennes, now in Indiana; and the
whole was made the county of Illinois by the Vii'-
ginia legislature. But little attempt was made
by Virginia to incorporate the conquest; and at
the time of the first cession in 1784 it is improb-
able that there was any Virginia government
in Illinois. — North Carolina asserted her West-
ern claims with more energy and success. The
first assertion was due to individual enterprise.
The first settlement of Tennessee (see that state)
was by hunting parties, and by persons who
had found the disturbed state of North CaroUna
under the royal governor unpleasant. In 1776
their settlements were made "Washington dis-
trict " of North Carolina; and, as settlements in-
creased, other counties were formed. After the
first session, in 1784, the Tennesseans revolted, and
formed the state of Franklin, or Frankland; but
North Carolina revoked her cession, and suppressed
the Franklin revolt. The authority of the state
was thus established from the Atlantic to the
Mississippi. — Other colonies dealt in nothing but
assertions. None of them made any practical
effort to maintain their claim to territory beyond
their present western boundary, with two excep-
tions. Connecticut made a long hut finally un-
successful attempt to oust Pennsylvania from a
part of her territory (see Wtoming), and Massa-
chusetts compromised her claims to the territory
of New York.' (See NbwYobk.) — 3. Under the
Confederation. The essential importance of the
western territory was as a bond for holding the
states together during and after the revolution.
The revolution was undoubtedly begun under a
vague idea of separate state action in theory, with
a controlhng necessity for national action in prac-
tice; and the articles of confederation were care-
fully framed with the view of securing as much
of the former and as little of the latter as possible.
(See State Sovbbbignty; Confedbkation, Ar-
ticles or. ) So strong was the particularist feeling



in the different states that they were only held
firmly together by the first flush of the war feel-
ing ; and as this influence relaxed, the tendency
to disintegration grew more plainly evident. At
first sight, the most powerful opposing force to
this disintegrating tendency was the common
commercial interest which grew up throughout
the states (see Federal Party); but the posses-
sion of the western territory was a more powerful,
though more silent, force, for it reached states
which the other force did not touch. If the
western teiTitory was to he retained and utilized,
but two courses were open: to allow all the states to
engage in a general scramble for it, in which each
state should secure as much of its claims as it could
enforce; or to accept it as national property, de-
fend it by national force, and govern it by national
authority. To allow the national bond to break
altogether, through the default of the articles of
confederation, would have had the former result;
and in this instance, as in others, the prejudices of
the people at last gave way to their comrhon sense,
and they chose the latter. But the process by
which they were brought to this conclusion made
up one of the vital issues of American politics
from 1778 until 1784. — In the beginning congress
seems to have had no notion that the western lands
were national property. Among its measures to
raise an army, Sept. 16, 1776, it promised grants
of lands to oflicers and soldiers, but was careful
to provide that the money necessary " to procure
such lands" should be assessed upon the states
like other expenses. Oct. 15, 1777, before the
articles of confederation were proposed to the
states, a motion was made in congress to add a
provision that congress should be empowered to
fix the western boundaries of the claimant states,
and to divide the western territory into independ-
ent states ; but only Maryland voted for it.
Clarke's expedition to the Illinois country in 1778,
and Virginia's sudden prospect of boundless ter-
ritorial wealth, threw the apple of discord among
the states. Heretofore the claimant states had
been content to claim, without taking active steps
to enforce their claims; and their extreme demand
had been only the negative provision of the ninth
article of confederation, that ' ' no state shall be
depi-ived of territory for the benefit of the United
States." Ten of the states, all but New Jersey,
Delaware and Maryland, had already ratified the
articles; but most of them had ordered their dele-
gates to propose alterations before signing. When
the proposed alterations were considered in con-
gress, June 22-25, 1778, it was found that Maryland
proposed to alter the ninth article by empowering
congress to fix the western boundaries of the
claimant states ; that Rhode Island proposed to
alter it by empowering congress to sell crown
lands within the states; and that New Jersey only
protested against the article as it stood, as unfair
to the non-claimant states. All amendments were
voted down. Eight of the states signed the arti-
cles, by their delegates, July 9; North Carolina,
July 21; and Georgia, July 24. New Jersey,

Delaware and Maryland refused; to sign; New-
Jersey yielded first : her delegates signed the aiti-
cles, Nov. 26, 1778, relying on "Hie' candor and
justice of the several states " forcessions of their
claims. The Delaware delegate signed Feb. 23,

1779, protesting at the same time that his state was
justly entitled to a share in the territory wWeli
had been won " by the blood and'treasure of all,'"
Maryland was no w the only obstacle, but it proved
for some time insuperable. Dec:. 15, 1778, that
state formally instructed her delegates "not tO'
agree to the confederation," unless the ninth arti-
cle should be amended as she' had desired; and
the letter of instructions demanded that the west-
ern territory " should be considered as a common
property, subject to be parceledi out by congress
into free, convenient and independent govern-
ments, in such manner and at such times as the
wisdom of that assembly shall hereafter direct."
This seems to have been the first official proposal
of that extension of the federal system which had
been first suggested in 1777, probably also by
Maryland, and which has been the secret of the
success of the American policy. — Maryland held
out for three years; and during that time the arti-
cles hung fire. At first her opposition threatened
to provoke an explosion, for some of the claimant
states seem to have been willing to break up the
Union rather than surrender their claims. Dec.
19, 1778, Virginia formally offered to put the arti-
cles in force with any one or more states which
should ratify them as they stood, so that Maryland
at least would have been left out of the Union; and
Connecticut agreed, April 7, 1779. But Maryland
remained firm; and her firmness, and perhaps the
discovery that Virginia's claim, if allowed in full,
would neutralize those of the northern states,
gradually turned the scale of opinion against Vir-
ginia. Feb. 19, 1780, New York led the way by
empowering her delegates to agree to a western
boundary, and relinquishing all claims beyond.
The ceded territory was to be held for the use of
" such of the United States as shall become mem-
bers of the federal alliance," and for no other pur-
pose. By this New York really gave up nothing,
and gained a certain instead of a doubtful bound-
ary. But the prece.dent was a promising one, and
congress used it to pass a resolution, Sept. 6,

1780, " earnestly recommending " the otherclaim-
ant states to follow New York's example, and
"earnestly requesting" Maryland to ratify and
sign the articles. This was followed, Oct. 10, by '
another resolution, in which congress committed
itself to Maryland's proposed extension of the j
federal system, promising that the territory ceded
should be "formed into distinct republican
states, which should become members of the
federal Union, and have the same rights of sever-
eignty, freedom and independence as the other |
states." From this line of policy congress has never ]
swerved,- and it has been more successful tliau '
stamp acts or Boston port bills in building up an '
empire. — In October, 1780, Connecticut offeredto
cede her claims, reserving a tract along Lake Erie.



Jan. 2, 1781, while Arnold was ravaging Virginia,
that state offered to cede her claims northwest of
the Ohio, on condition that congress would guar-
.antee her possession of Kentucky and the larger
part of Tennessee. Neither of tliese ofEers was
■accepted by congress, but the prospect was so en-

Online LibraryJohn J. (John Joseph) LalorCyclopædia of political science, political economy, and of the political history of the United States → online text (page 235 of 290)