(7) "The Republic of Nicaragua is bound to pay the arrears of annuity due by the treaty to the Mosquito Indians." Article 8 (the last article) relates exclusively to the relations of Nicaragua to the free port of San Juan del Norte (Greytown). To the award of the Emperor is appended an opinion (gutachten) in which is given in detail the reasons on which his conclusion rests. From this opinion the following condensed translation is given of the passages bearing upon the present issue: "I. The title to the territory occupied by the Mosquito Indians, on the east shore of Central America, though with an undefined boundary on the land sides, was for a long time in dispute. On the one side it was claimed by the Spanish-American states of South America, as succeeding to the rights of Spain. Spain had before the separation of these states, uniformly asserted her claim to the title, and had in 1803, issued a decree for its enforcement. But neither Spain nor the states which succeeded her had ever reduced their claim into possession; and the Mosquito Indians were in this way, so far as concerns the Spanish and Spanish-American authorities, left in practical independence. This independence they exercised by entering into commercial and international relations, particularly with England. Their relations with Eng. land began immediately after England's conquest of Jamaica in the last half of the seventeenth century, and ripened in 1720 into a formal treaty between the governor of Jamaica and the chief (or king) of the Mosquito Indians, which finally grew into an international relation of protectorship. (Schutz-verhältniss.) But this protectorate was contested not only by the Spanish-American states, but by the United States of America; a contest which increased in earnestness as the question of isthmus transit grew in importance. "In 1848, the Mosquito Indians having, with the help of England, obtained possession of the important sea-port of San Juan del Norte (Greytown) complications threatening war grew up between them and the United States under whose protection the Republic of Nicaragua had placed itself. To remove these difficulties England and the United States concluded in April, 1850, the Clayton-Bulwer treaty, which soon, however, gave rise to fresh difficulties. England's object was, by an arrangement with the United States to determine the relations of the Mosquito Indians, and in particular of the sea-port of San Juan del Norte (Greytown). In this way originated in April, 1850, the so-called Crampton-Webster treaty (Martens-Samsoer, Recueil de Traités, xiv, 195) in which England tacitly renounced the protectorate of the Mosquito Indians and conceded that the sovereignty of the whole of the Mosquito territory within the limits of Nicaragua should be recognized as in Nicaragua, with the exception of a definitely bounded territory which was to be left to the unrestrained and independent control of the Mosquito Indians. Nicaragua, however, declined to accede to this arrangement, so far as it gave independent territory to the Mosquito Indians, but claimed sovereignty over the whole coast. Further negotiations with the United States having proved abortive (the ClarendonDallas treaty, the last effort in this direction, not having been ratified by the Senate of the United States) England entered into direct negotiations with Nicaragua, which ended in the treaty of Managua of January 28, 1860. "II. In this treaty England expressly surrendered the protectorship of the Mosquito country, and recognized the sovereignty of Nicaragua over it under certain limitations, bounding it by fixed lines within which the Indians were to have the right of self-government. The question submitted to the determination of the Emperor of Austria was the relationship between such sovereignty on the one side and such self-gov. ernment on the other. As to this the following conclusions are reached: "The sovereignty of Nicaragua extends over the whole coast. This excludes, under the treaty, an absolute internationally recognizable sovereignty in the Mosquito Indians. "The Mosquito Indians are subordinated to the protectorate of Nicaragua in the place of the former protectorate of England. They have, however, self-government assigned to them over a specifically limited territory. This territory, which is called Reserva Mosquito (Mosquito reservation), is an integral and inseparable part of the collective territory of the Republic of Nicaragua, and an international appurtenance (pertinenz) of the mainland. Within the limits of the territory thus prescribed the Mosquito Indians are to enjoy their own mode of life and national existence; this territory, although remaining part of Nicaragua, is immediately under the control of the Indians, as their territory, the land of the Mosquitos. This indirectly follows from the clause prohibiting alienation of the territory by the Mosquito Indians to a foreign power. Within the territory, by the very words of the treaty, the Mosquito Indians have the right of governing (according to their own customs, and according to any regulations which may from time to time be adopted by them, not inconsistent with the sovereign rights of the Republic of Nicaragua) themselves, and all persons residing within such district. But this self-government' does not extend to foreign affairs, as the Reserva Mosquito internationally forms part of the Republic Nicaragua. The Mosquito Indians have not, therefore the right to enter into relations of treaty with foreign states, to interchange with such states diplomatic agents, to wage war or make peace. Their self-government' is exclusively municipal. But it precludes, under the treaty, Nicaragua from granting monopoly privileges as to the products of the Mosquito territory, and from interfering with the port duties imposed by the Mosquito authorities. And there is nothing in the subsequent condition of the territory which relieves Nicaragua from the payment of the annuity (rente) agreed on by the treaty." * On the question of the right of England to interpose to exact the fulfillment of her treaty with Nicaragua it is added: "It is true that England in the treaty of Managua recognized the sovereignty of the Republic of Nicaragua over the Mosquito territory, and renounced her own protectorate. But this was subject to the conditions and engagements specified in the treaty.' England has her own interest in the fulfillment, in favor of her former constituents, of those conditions, and may, therefore, in her own name, press such fulfillment. This cannot be called an unjustifiable 'intervention,' as it is simply pressing a treaty guarantee." It is a matter of notoriety that the governing population in the Mosquito country consists of British subjects (whites or negroes from Jamaica), acting under laws based on those of England, with English process in the English language. It has already been seen that under the treaty of Great Britain with Nicaragua, titles previously granted by the Mosquitos are validated, though this is in defiance of the rule that Indian grants convey no title internationally valid. (Supra, § 150f.) But however this may be, there can be no question that, with such a state of facts at least in controversy, Great Britain, so far from renouncing her protectorship over the Mosquito Indians, takes the position of their guardian in their struggles with Nicaragua, appears as their protector before an international court, and is recognized by that court as holding this guardianship. (5) HONDURAS. The treaty relations of Honduras to the United States and to Great Britain in the present connection, are noticed in prior sections supra, §§ 146, 150f. It will also be seen that the British title to Honduras is based originally on an informal concession to British settlers to cut logwood and mahogany on the Belize, which ultimately was merged in an alleged conquest from Spain. (Supra, § 150 f.) As to effect of intermediate wars on British title to the above franchise, see infra, § 303; supra, § 135. (6) VENEZUELA. The treaty relations of the United States with Venezuela are noticed supra, § 165a. The claims against Venezuela, and the convention therefor, are discussed supra, § 220. 37 CHAPTER XIII. FISHERIES. [As some of the principal questions involved in this chapter are now the subject of diplomatic negotiation, the course taken in respect to other portions of this work is departed from, and instead of a republication of extracts at large from the pertinent documents, a summary is given of the material doctrines of international law bearing on the topic, this summary consisting mainly of references to points stated in other chapters. The notes given are mainly such as explain the history of the doctrines stated in the text, and do not contain references to present negotiations.] I. LAW OF NATIONS. (1) Fishing on high seas open to all, § 299. (2) Sovereign of shore has jurisdiction of three-mile marine belt following the sinuosities and indentations of the coast, § 300. II. NORTHEAST ATLANTIC FISHERIES. (1) These were conquered from France by the New England colonies, acting in co-operation with Great Britain, with whom they were afterwards held in common by such colonies, § 301. (2) Treaty of peace (1783) was not a grant of independence, but was a partition of the empire, the United States retaining a common share in the fisheries, $ 302. (3) War of 1812 did not divest these rights, § 303. (4) Treaty of 1818 recognized their existence and affirmed their continuance, § 304. (5) Under these treaties the three-miles belt follows the sinuosities and indentations of the coast, § 305. (6) Bay of Fundy and other large bays are open seas, § 305a. (7) Ports of entry are not affected by limitations imposed by treaty of 1818, § 306. (8) British municipal legislation may restrict, but cannot expand, British rights under these treaties, § 307. (9) Great Britain, and not her provinces, is the sovereign to be dealt with for infraction of such fishing rights, § 308. III. BY PURCHASE OF ALASKA THE UNITED STATES IS ENTITLED TO THE JOINT RIGHTS OF RUSSIA AND OF THE UNITED STATES IN NORTHERN PACIFIC, § 309. I. LAW OF NATIONS. (1) FISHING ON HIGH SEAS OPEN TO ALL. The high seas (with the exception of territorial waters) are open to all nations, no nation having territorial title to them, except in respect to the particular waters covered by its ships. Supra, §§ 26, 33. Schuyler's Am. Dip., 404 ff. See articles in Revue des Deux-Mondes, les pêcheries de Terre Neuve et les As to right of nations over sea fisheries see House Rep. 7, 46th Cong., 1st sess. (2) SOVEREIGN OF SHORE HAS JURISDICTION OF THREE-MILE MARINE BELT FOL LOWING THE SINUOSITIES AND INDENTATIONS OF THE COAST. § 300. It has been already seen that rivers and inland lakes and seas, when contained in a particular state, are subject to the sovereign of such state, and that when a river divides two states each has jurisdiction of the waters that wash his shores, this jurisdiction being divided by the middle of the channel of the river unless otherwise provided by treaty (supra, § 30). It has also been seen that the prevalent view, so far as concerns the North Atlantic waters, is that the sovereigns of shores bordering those waters, have, by usage, when not by treaty, a police jurisdiction over a marine belt following the sinuosities and indentations of the shore, and extending seaward three miles (supra, § 32). II. NORTHEAST ATLANTIC FISHERIES. (1) THESE WERE CONQUERED FROM FRANCE BY THE NEW ENGLAND COLONIES, COOPERATING WITH GREAT BRITAIN, WITH WHOM THEY WERE AFTERWARDS HELD IN COMMON BY THOSE COLONIES. §301. To the energy, valor, and skill of the New England forces engaged in the attack by Great Britain on the French Canadian coast in 1758 the conquest of that coast is largely due. The New England seafaring and fishing population, having taken a leading part in this conquest, became, not merely of right but from the nature of things, tenants in common of the fisheries thereby conquered. This tenancy they continued to hold at the time of the treaty of peace. "The arguments on which the people of America found their claim to fish on the banks of Newfoundland arise, first, from their having once formed a part of the British Empire, in which state they always enjoyed, as fully as the people of Britain themselves, the right of fishing on those banks. They have shared in all the wars for the extension of that right, and Britain could with no more justice have excluded them from the enjoyment of it (even supposing that one nation could possess it to the exclusion of another), while they formed a part of that empire, than they could exclude the people of London or Bristol. If so, the only inquiry is, How have we lost this right? If we were tenants in common with Great Britain while united with her, we still continue so, unless by our own act we have relinquished our title. Had we parted with mutual consent we should doubtless have made partition of our common rights by treaty. But the oppressions of Great Britain forced us to a separation (which must be admitted, or we have no right to be independent); and it cannot certainly be contended that those oppressions abridged our rights or gave new ones to Britain. Our rights, then, are not invalidated by this separation, more particularly as we have kept up our claim from the commencement of the war, and assigned the attempt of Great Britain to exclude us from the fisheries as one of the causes of our recurring to arms." Mr. R. R. Livingston, Secretary of State, to Dr. Franklin, January 7, 1782. 9 Franklin's Works (Sparks' ed.), 135. Fisheries "on the coasts and bays of the provinces conquered in America from France were acquired by the common sword, and mingled blood of Americans and Englishmen-members of the same empire, we, with them, had a common right to |