war, the prevention of frauds upon its customs laws, and the regulation of fisheries; and second, a usufructuary right to fisheries. Modern writers who affirm any proprietary right over uninclosed marginal waters unite in basing it upon the fact that the adjacent "state has admittedly an exclusive right to the enjoyment of the fisheries" in such waters. But this seems to be more accurately classed as a usufructuary right, for, if a state has any proprietary right over such waters, it would seem to have the exclusive right to set law over them, and to close them to foreign vessels, as it may close its ports, whereas it is universally admitted that foreign ships have a jus transitus over such waters. 3. The internationally valid exercise of the rights above enumerated by an independent state is limited to a distance of one marine league from low-water mark on its coast. There are a few apparent exceptions to this rule. 1. Local pilot laws, which require that a pilot shall be taken on board all vessels entering certain territorial waters at a distance of more than three miles 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 subject to penalties unless they have previously complied 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 board a pilot at any place in or out of its jurisdiction 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. Customs laws and hovering acts, which authorize municipal seizures beyond the marine league. "It will not," says Dana, "be found that any consent 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 remonstrance of foreign states, or that a clear and unequivocal judicial precedent now stands sustaining such seizures, when the question of jurisdiction 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 2, 1797, sec. 27); but the statute does not authorize the seizure of a foreign vessel when beyond the territorial jurisdiction. The statute may well be construed to 177 VOL. III.58 4 mean only that a foreign vessel coming to am American port, and there seized for a violation of revenue regulations committed out of the jurisdiction 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 within, 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 violate 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 probably 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 judgments 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, when 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. France 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 penetrates 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 1793. "Of practice," says Hall," "there is a curious deficiency, 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 establishment 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, im proportion to the width of their mouth, run deeply 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 independent state, has the international rights and is under the international obligations above described, 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 international law, but by the terms of that Union.. Thus it has been decided that the article of the 9 7 constitution which describes the judicial power, 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 lowwater mark, and that whatever soil below lowwater mark, within the ebb and flow of the tide, is the subject of exclusive property and ownership, belongs to the state within whose territory it lies, 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 lowwater mark. When an inlet or arm of the sea does not exceed two marine leagues in width, between 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 generally on Long Island sound, comprehend within their limits, for the purpose of ordinary civil and criminal jurisdiction, the waters between their respective 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 States, 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 fish, if navigation is not thereby obstructed. In like manner, the state owns the tide waters themselves and the fish in them, so far as they are capable of ownership while running. 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 commerce nor a violation of any privilege or immunity of inter-state citizenship. See Phillimore's Commentaries upon International Law, vol. i., chaps. 4-8, Philadelphia, 1854; Kent's Commentaries, 12th ed., vol. i., pp. 26-36; Twiss' The Law of Nations (Time of Peace), London ed., 1861, chap. 10; Woolsey's International Law, 5th ed., secs. 56-63; Holland's Jurisprudence, pp. 297, 298; 1 Twiss' Arts. in Law Magazine, 1877; 2 The Queen vs. Keyn, 2 L. R., Ex. Div., pp. 63-240; Lush., Adm., 295; Wheaton's International Law, chap. iv., secs. 177-206; Hall's International Law, pp. 104-130, Oxford, 1880; United States vs. Bevans, 3 Wheaton, 336; Pub. Stats. of Mass., title 1, chap. 1, sec. 1, and title 6, chap. 22, sec. 1; 8 Mahler vs. Transportation Co., 35 N. Y. 352; McCready vs. Virginia, 94 U. S., 391; Territorial Waters Jurisdiction Act, 1878, 41 and 42 Vict., cap. 73; Foreign Relations of U. S., 1878, pp. 245-251. JAMES FAIRBANKS COLBY. 4 7 6 8 9 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 (see MASSACHUSETTS, CONNECTICUT, RHODE ISLAND); 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 British sovereignty. The king had no right, theoretically, to alienate permanently any of the prerogatives 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 sanctity; it was no contract between king and people, but a grant by the king of privileges whose permanence 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 differently. (See REVOLUTION.) 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 difference between the status of the colonies under the British empire, and of the territories under the United States. Both had political privileges, but in both the continuance of the privileges was dependent on the continuing will of the superior, and on the advantages of the arrangement to the superior. The history of the territories of the United States will, it is confidently submitted, show the infinite superiority of the American over the British colonial policy. Indeed, 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 Maryland (see their names), had defined western boundaries; the other seven, Massachusetts, Connecticut, New York, Virginia, North Carolina, South Carolina and Georgia, had none, unless we may consider the Pacific ocean, assigned in the charters and grants of most of them, as a western boundary. There were some irregularities. The boundaries of New Hampshire were always exceedingly vague; and, though most of them were settled by convention with Massachusetts, the New Hampshire authorities asserted an indefinite claim to the territory to the west, to which New York long | opposed an equally indefinite claim. (See VER- | it was not until 1712, under Spotswood's adminisMONT.) 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, therefore, claimed a sort of suzerainty over it, without any express grant from the king. The claim was in effect recognized by the king's proclamation 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, Virginia, 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 went westward. The boundaries of Maryland and of the western part of Pennsylvania conflicted with | Virginia's claim, but Virginia yielded in these respects, for the purpose of establishing the rest of her claim. South Carolina had really been given a western boundary by the formation of the colony of Georgia, which cut off her further expansion 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 Floridas, declared it to be his "royal will and pleasure," as to the territory between them, "to reserve under our sovereignty, protection and dominion, 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 be 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, curiously enough, when independence was established, 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 asserting western claims commensurate with their mag. nitude and importance. The first Virginia exploring party crossed the Blue Ridge in 1666; but 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 supported the company with her whole force. The place of the first struggles, though now in western Pennsylvania, was then supposed to be 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 settlement of Kentucky (see that state) was also due to individual enterprise; and its formal establishment 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 interest in the northwest. In 1778-9 he led a Kentucky force into Illinois, and conquered that territory and Vincennes, now in Indiana; and the whole was made the county of Illinois by the Virginia legislature. But little attempt was made by Virginia to incorporate the conquest; and at the time of the first cession in 1784 it is improbable that there was any Virginia government in Illinois. - North Carolina asserted her western 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 Carolina under the royal governor unpleasant. In 1776 their settlements were made "Washington district" of North Carolina; and, as settlements increased, 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 exceptions. Connecticut made a long but finally unsuccessful attempt to oust Pennsylvania from a part of her territory (see WYOMING), and Massachusetts compromised her claims to the territory of New York. (See NEW YORK.)-2. 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 controlling necessity for national action in practice; and the articles of confederation were carefully framed with the view of securing as much of the former and as little of the latter as possible. (See STATE SOVEREIGNTY; CONFEDERATION, ARTICLES OF.) So strong was the particularist feeling | Delaware and Maryland refused to sign. New Jersey yielded first: her delegates signed the articles, Nov. 26, 1778, relying on "the candor and justice of the several states " for cessions of their claims. The Delaware delegate signed Feb. 22, 1779, protesting at the same time that his state was. justly entitled to a share in the territory which had been won "by the blood and treasure of all." Maryland was now 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 article should be amended as she had desired; and the letter of instructions demanded that the western territory "should be considered as a common property, subject to be parceled out by congress into free, convenient and independent governments, 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 articles 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 articles 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 Virginia. 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 members of the federal alliance," and for no other purpose. By this New York really gave up nothing, and gained a certain instead of a doubtful boundary. But the precedent was a promising one, and. congress used it to pass a resolution, Sept. 6, 1780, "carnestly recommending" the other claim-ant states to follow New York's example, and in the different states that they were only held firmly together by the first flush of the war feeling; 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 possession 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 territory was to be 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, defend 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 common 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 officers 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 independent states; but only Maryland voted for it. Clarke's expedition to the Illinois country in 1778, and Virginia's sudden prospect of boundless territorial 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 deprived 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-"earnestly requesting" Maryland to ratify and gates to propose alterations before signing. When the proposed alterations were considered in congress, 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 articles, by their delegates, July 9; North Carolina, July 21; and Georgia, July 24. New Jersey, sign the articles. This was followed, Oct. 10, by another resolution, in which congress committed itself to Maryland's proposed extension of the 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 sovereignty, freedom and independence as the other states." From this line of policy congress has never swerved, and it has been more successful than stamp acts or Boston port bills in building up an empire. - In October, 1780, Connecticut offered to cede her claims, reserving a tract along Lake Erie. | gress had outlined in October, 1780. A supplementary act of cession was presented in congress, Dec. 30, 1788; but this was only to conform the original act to the terms of the ordinance of 1787. Virginia's cession was complete in 1784. - Massachusetts made an unqualified cession of her claims west of Niagara river, April 19, 1785, in accordance with an act of the legislature of Nov. 13, 1784. - Congress had not as yet accepted Connecticut's proffered cession, on account of the reservation of a tract extending from the Pennsylvania line 120 miles westward. But Connecticut had loyally accepted the award of congress against her in the case of Wyoming (see that title); and congress at last accepted her cession, May 26, 1786. April 28, 1800, an act of congress author Jan. 2, 1781, while Arnold was ravaging Virginia, that state offered to cede her claims northwest of the Ohio, on condition that congress would guarantee her possession of Kentucky and the larger part of Tennessee. Neither of these offers was accepted by congress, but the prospect was so encouraging, that Maryland at once empowered her delegates to sign the articles, and they did so, March 1, 1781. On the same day the New York delegates assented to the western boundary of the state, on condition that the same guarantee should be given to New York as to any other state. Thus the articles of confederation went into force without any real settlement of the territorial question, for the only cession likely to be accepted had amounted to nothing. - Oct. 30, 1779, congress had passed a resolution, against the votes of Vir-ized the president to deed to Connecticut the title ginia and North Carolina, recommending Vir- to this "western reserve," on condition that Conginia to close her land office and forbear issuing necticut should surrender all claim to its jurisdicland warrants until the end of the war. Oct. 29, tion, and abandon any claim to the territory with1782, the persistent Maryland delegates moved in the limits of New York; and the state fulfilled that the cession of New York be accepted by the conditions, May 30.-Aug. 9, 1787, South congress, and the motion was carried against the Carolina made an unqualified cession of her vote of Virginia, North and South Carolina being claims west of a line from the head of Tugaloo divided, and Massachusetts having but one dele- river to the North Carolina boundary. The actual gate and no vote. The purpose of this action was cession was a strip of land about twelve miles to get a fulcrum from which to operate on the wide. That portion of it which is now a part of claim of Virginia, and it was effective. The Georgia was transferred to that state in part reclaim of New York to her own territory west of turn for its cession in 1802. The South Carolina Albany was derived from her supremacy over the cession closed the formal record of acquisitions 'Six Nations"; and this was now recognized by of territory under the confederation; but there all the states. But the Six Nations had always were two more cessions, which, though made asserted a general right by conquest to all the ter- under the constitution, were only belated comritory west of New York, Pennsylvania, Virginia pletions of confederation arrangements. North and North Carolina. If this also were admitted, Carolina ceded Tennessee in 1784; but, before it also had passed to New York, and had been congress could meet, and accept the cession, it ceded by New York to congress; and the whole was revoked on account of the anger it excited in western territory was already national property, Tennessee. Five years later, this feeling had diswithout the formality of a cession by Virginia or appeared. In December, 1789, the North Carolina any other state. May 1, 1782, a committee had legislature made another cession of Tennessee, made an elaborate report to congress. It upheld which was accepted by act of congress of April the claim of New York to its full extent; con- 2, 1790. The North Carolina titles and military sidered the jurisdiction of the whole western ter- land warrants were to hold good, and the territory ritory, including Virginia's claim, to be already was to be organized as the northwest territory had vested in congress by New York's cession of it; been, "provided always, that no regulations made and recommended Virginia to make a new and or to be made by congress shall tend to emancipate full cession. Consideration of the report was slaves." Most difficulty was met in the case of postponed, but it was evidently high time for the claims of Georgia, covering the present states Virginia to cede the northwest territory abso- of Alabama and Mississippi, north of parallel 31° lutely and gracefully, if she desired to save and south of the South Carolina cession. It had Kentucky and her land warrants there. -The been claimed by South Carolina, because the orig.act of cession was passed by the Virginia leg-inal grant to the Carolina proprietors covered the islature, Oct. 20, 1783, and the deed was executed by her delegates in congress, March 1, 1784. Under the circumstances, the terms accorded to the state were sufficiently liberal; the land titles of Virginia settlers were to hold good; the expenses of the state in conquering the territory were to be repaid to her; 150,000 acres were re:served for Clarke and his troops; and any deficiency in Virginia land warrants in Kentucky and Tennessee was to be made good in the northwest territory. The ceded territory was to be organized according to the federal policy which con territory between parallels 31° and 36° west to the South seas. But the proprietors had transferred their rights to the king; the king had formed the colony of Georgia in 1732, and given to it the territory between the Altamaha river and the most northern part of the Savannah, westward to the South seas; and his proclamation of 1763 had annexed to Georgia the territory between the Altamaha and the St. Mary rivers. In 1787 the two states made a treaty at Beaufort, by which South Carolina obtained the territory afterward ceded by her, and Georgia the rest. Georgia took no steps |