war.
2
This rock would admit of a fort being constructed upon it, and it might be necessary in a future war to place one there for the protection of the island.
The "ledger flats" generally, though sometimes covered at high water, are, in fact, as it were, a natural ledge or girdle of defence to the Bermudas, of which they are, as has been said, a continuation.
Great Britain appears to have always attached great importance to the maintenance of a complete jurisdiction over the whole reef, as well as that part of it designated as the Bermudas.
Surveys of the whole group were made in 1793-1797.
The original is kept in the Admiralty, and one copy was sent to Bermuda. Both have been always kept secret, and no copies of them allowed to be made.
These Bermuda reefs bear a close analogy, not only to the Bahamas, but (so far as the application of the law affects them) to the Florida reefs and to the uninhabited islands distant five or six miles from the mouth of the Mississippi.
The former the Americans have, we believe, always claimed as a continuation of the mainland. As to the latter, we bave the advantage of an express decision of Lord Stowell, the principles and even the language of which appear very applicable to the case of the North Rock and "ledger flats of Bermuda.
"The capture was made (Lord Stowell says), it seems, at the mouth of the Mississippi We and (as it is contended in the claim) within the boundaries of the United States. all know the rule of law on this subject is terra dominium finitur ubi finitur armorum vis,' and since the introduction of firearms that distance has usually been recognised to be about three miles from the shore. But it so happens in this case that a question arises as to what is to be deemed the shore, since there are a number of little mud islands, composed of earth and trees, drifted down by the river, which form a kind of portico to the mainland. It is contended that these are not to be considered as any part of the territory of America; that they are a sort of no man's land,' not of con- sistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. It is argued that the line of territory is to be taken only from the Balize, which is a fort raised on the mainland by the former Spanish possessors. I am of a different opinion. I think that the protection of territory is to be reckoned from these islands, and that they are the natural appendages of the coast on which Consider what the they border, and from which indeed they are formed. consequence would be if lands of this description were not considered as appendant to the mainland, and as comprised within the bounds of territory. If they do not belong to the United States of America any other power might occupy them; they might be embanked and fortified. What a thorn would this be in the side of America! It is physically possible, at least, that they might be so occupied by European nations, and then the command of the river would be no longer in America, but in such settle- ments. The possibility of such a consequence is enough to expose the fallacy of any arguments that are addressed (adduced ?) to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil. I am of opinion that the right of territory is to be reckoned from those islands. That being established, it is not denied that the actual capture took place within the distance of
("The Anna,' three miles from the islands, and at the very threshold of the river."
5 Robinson, 385, &c.)
*
It remains to notice the papers which we have had the honour to receive relative to- the conduct of Great Britain upon the analogous case of Cuba and the Bahamas.
The question in this matter arose upon a dispute, not as to the exercise of neutral or belligerent rights, but as to the extent of operation to be allowed to a municipal law of Cuba upon the subject of turtle fishing in the waters of Cuba and of the adjacent
cays.
Upon reference to the two opinions given by Sir John Dodson, when Queen's Advocate, upon the subject of "the cays" adjoining to Cuba, it does not appear that in either of them he expressed an opinion founded upon the assumption of the fact that these cays, though uninhabited, unquestionably belonged to Spain. The caso seem to have been originally presented to him as if these "cays" were a series of uninhabited rocks, scattered over the sea which intervenes between the British and Spanish possessions in the Bahamas and Cuba respectively, not proved to be in the exclusive possession de jure of either power, and being de facto frequented by the fisher- men of both. Both Sir John Dodson's reports seem to turn upon the uncertainty attaching to the dominion over these rocks, and do not necessarily touch the question
44
3
whether, if the sovereignty of Spain over these islands were established, such sovereignty would not have carried with it the maritime rights in controversy, though in Lord Palmerston's letter (8th September 1848) which preceded Sir John John Dodson's last report (30th December 1848), the opinion of Lord Palmerston certainly propounded the novel principle "that the uninhabited cays of the coast of Cuba cannot be con- sidered invested with territorial jurisdiction beyond low water mark," and certainly the last report of Sir John Dodson seems to have been understood by the Foreign Office as sanctioning the opinion so expressed in the letter of Lord Palmerston; and instructions appear to have been issued (24th July 1849, vol. 760) to Consul Crawford founded upon the principle advanced in Lord Palmerston's letter to the Colonial Office (20th Sep- tember 1849, vol. 763).
But on the 30th of July 1850 (vol. 771) Lord Eddisbury directed Mr. Kennedy (the acting Consul-General at Havanna, " to state to the Captain-General of Cuba that Her Majesty's Government do not dispute the right of sovereignty of the Crown of Spain over "the cays in question, but Her Majesty's Government do not admit that the right of“ "sovereignty over barren and uninhabited rocks and islets can carry with it territorial jurisdiction over the surrounding seas," and Mr. Otway was afterwards instructed, on the 30th June 1852, to admit that "if persons not boing Spanish subjects should occupy, "under the pretence of fishing, any of the cays or islets, they would be liable to be
ejected by the Spanish authorities."
46
44
It appears clear, however, that the report of the late Queen's Advocate, Sir John Harding (11th November 1859) does not sanction the principle that these cays, if Spanish, did not carry with them the usual territorial jurisdiction over adjacent waters; he rather returns to the original position of Sir John Dodson as to the uncertainty of Indeed he expressly says: "If the Spanish the Spanish title to the cays themselves. "title should be clearly established in one or more particular cases, then I consuler
that the three mile limit applies to such cases just · as it would to the coast of Cuba.” This is the doctrine embodied in our recent and present report upon the Bermudas, and which we believe to be both sound in principle and supported by the very strong precedent of "the Anna," which we have cited, and which, we must remark in con- clusion, does not appear to have been present to the mind of Sir John Dodson when he made his second report upon the letter of Lord Palmerston of the 8th September
1848.
The Earl Russell, &c. &c. &c.
We have, &c. (Signed)
WM. ATHERTON. ROUNDELL PALMER. ROBERT PHILLIMORE.
Ј
!
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No comments yet.
Private notes are available after approval.