others from it, and from that intercourse for which it is the pathway, which would be inconsistent with the equality and sovereignty of nations. Such empire could begin only in the consent of the whole world expressed by treaty, which was never given, or in prior discovery and use. But this last is no ground at all, and if it were, would work against the so-called discoverer in favor of the natives of newly found coasts. In fine, the destination of the sea is clearly for the common benefit of mankind; it is a common pathway, separating and yet binding, intended alike for all.

The liberty of the sea and of navigation is now admitted on all hands. But formerly the ocean, or portions of it, were claimed as a monopoly. Thus the Portuguese prohibited other nations from sailing in the seas of Guinea and to the East Indies. No native-born Portuguese or alien, says one of the ancient royal ordinances, shall traverse the lands or seas of Guinea and the Indies, or any other territory conquered by us, without license, on pain of death and the loss of all his goods. The Spanish nation formerly claimed the right of excluding all others from the Pacific. Against such claims, especially of the Portuguese, Grotius wrote his "Mare Liberum" in 1609, in which he lays down the general principle of the free right of navigation, and that the sea cannot be made property, and refutes the claims of the Portuguese to the discovery of countries which the ancients have left us an account of, as well as their claims through the donation of Pope Alexander VI. And yet the countrymen of Grotius, who had been defenders of the liberty of the seas, sought to prevent the Spaniards, going to the Philippines, from taking the route of the Cape of Good Hope. The English, in the seventeenth century, claimed property in the seas surrounding Great Britain, as far as to the coasts of the neighboring countries, and in the eighteenth only softened down the claim of property into one of sovereignty. Selden, who in 1635, published his "Mare Clausum," while he contends against the monopolizing pretensions of Spain and Portugal, contends zealously on the ground of certain weak ancient precedents for this claim of his country. The shores

and ports of the neighboring states, says he, are the limits of the British sea-empire, but in the wide ocean to the north and west the limits are yet to be constituted.1 Russia, finally, at a more recent date, based an exclusive claim to the Pacific, north of the 51st degree, upon the ground that this part of the ocean was a passage to shores lying exclusively within her jurisdiction. But this claim was resisted by our government, and withdrawn in the temporary convention of 1824. A treaty of the same empire with Great Britain in 1825 contained similar concessions.

The rights of all nations to the use of the high sea being the same, their right to fish upon the high seas, or on banks and shoal places in them are equal. The right to fish in bays and mouths of rivers depends on the will of the sovereign.2

question be

tween the

United

And States and

Thus the right to fish on the banks of Newfoundland is open to all, but there is no right to dry and cure Fishery fish, even on the unsettled coasts belonging to any sovereign, without permission of the same. here a brief sketch of the fishery question between ain. the United States and Great Britain may not be out of place. 1 Compare Ortolan, u. s., chap. vii.

Great Brit

2 The liberty of the sea being now admitted, there seem to be no reasons of absolute right why a nation should exclude the fishing vessels of another from within a marine league of its coast. There is a difficulty in ascertaining, especially along a curved shore, how the line between the open and the territorial sea is to run, and it is equally difficult for the fisherman to know where the line runs or to keep outside of it when it is known. Quarrels of fishermen of two nationalities may be to some extent prevented by such a police law, but its enforcement produces no small amount of hostility. We look for a time when no such lines and no restriction on the transport of fish by any fishermen to any market shall exist. And yet the right of excluding foreign fishermen from certain waters is received and practiced, for instance as between France and England, — and the same right exists, by decision of the Supreme Court of the United States, in any one of the States, of prohibiting by law the inhabitants of another from fishing within the tide-waters of its territory. Compare an article in the American Law Review for July, 1877, by Judge Dwight Foster, formerly of the Supreme Court of Massachusetts.

The right to prohibit foreign fishermen from catching shell-fish seems to have reasons of its own. They are caught near the shore, within tide-water, and need laws for their protection at certain seasons; they may be cultivated by private persons on their own lands; they need in short a police which is not required for fish in the proper sense of the term.

Treaty of 1783.

Treaty of

of 1818.

By the treaty of 1783, which admitted the independence of the United States, Great Britain agreed that they should continue to enjoy the right of fishing on the Banks of Newfoundland, and the liberty of fishing along such coasts of the same island as were used by British seamen, in the Gulf of St. Lawrence, and on the coasts, bays, and creeks of all other British dominions in America; as well as the liberty of drying and curing fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, the Magdalen Islands, and Labrador, so long as these should continue unsettled; but not that of drying or curing on the island of Newfoundland. At and after the treaty of Ghent, which contained no provisions respecting the fisheries, it was contended by Ghent, 1814. American negotiators, but with reasons which Great Britain would not accept (see § 160), that the article of the peace of 1783, relating to the fisheries, was in its nature perConvention petual, and thus not annulled by the war of 1812. A convention in 1818 granted the perpetual privilege to citizens of the United States to take, dry, and cure fish, on the coasts, while unsettled, of Labrador, east of Mt. Joli, and of Newfoundland, between Cape Ray and the Rameau isles; and to take fish on the Magdalen isles, and on the west and north coasts of Newfoundland, the United States renouncing forever any liberty "to take or cure fish, on, or within three marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty's dominions in America not included within the above-mentioned limits.1 Subsequently, by 1854. the treaty of 1854, commonly called the Reciprocity Treaty, leave was given to fishermen from the United States to take fish, excepting shell-fish, on the coasts and in the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and the islands adjacent, without limit as to distance from the shore, with permission to land there and upon the Magdalen Islands for the purpose of drying their nets and curing their fish; provided that in so doing they do not interfere with private rights or prior occupancy by British

Treaty of

1 See Wheaton's Elements, ii., 4, § 8, and iii., 2, § 9.

fishermen. The same rights, with the same limitations, are given to British subjects on the coasts of the United States from the 36th degree northwards. In both cases the treaty does not include salmon and shad fisheries, nor the fisheries in rivers and the mouths of rivers. This treaty, terminable in or after ten years, was terminated by the United States in 1866. And again by the treaty of Washington of 1871, the reciprocity of the treaty of 1854 was restored in great measure. (See the sketch of the treaty under 1871 in Appendix ii.)

§ 60.

claims of extrol over cer

clusive con

tain waters.

The claims of exclusive control over certain portions of water are, in great part, either doubtful or to be rejected. These are broad arms or recesses of the sea; narrow seas not shut up within the territory of a single state; narrow passages, especially such as lead to interior seas; such interior seas themselves; and rivers furnishing the only or most convenient outlet for an inland state, which rise in one country and have their mouths in another. 1. Bays of the sea-called in England the king's chambers are within the jurisdiction of the states to whose territory the promontories embracing them Gulfs. belong. Thus the Delaware Bay was declared in 1793 to belong exclusively to the United States. When, however, the headlands are very remote, there is more doubt in regard to the claim of exclusive control over them; and, for the most part, such claim has not been made. Chancellor Kent (i., 30) inclines to claim for the United States the dominion over a

66

Bays and

very wide extent of the adjacent ocean. Considering," says he, "the great extent of the line of the American coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume for domestic purposes connected with our safety and welfare the control of waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape 1 Murhard, Nouv. Rec., 16, 1. 498.

Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the Capes of the Delaware, and from the south Cape of Florida to the Mississippi. In 1793 our government thought they were entitled, in reason, to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea-shores; and, in 1806, our government thought it would not be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore." But such broad claims have not, it is believed, been much urged, and they are out of character for a nation that has ever asserted the freedom of doubtful waters, as well as contrary to the spirit of the more recent times.

2. Great Britain long claimed supremacy in the narrow seas adjoining that island. But the claim, although cheaply satisfied by paying certain honors to the British flag, was not uniformly acquiesced in, and has fallen into desuetude. And if it had been urged and admitted in former times, the force of the prescription would be broken by the plea that the views of the world, in regard to the freedom of commerce, have become much more enlarged. What Grotius contended for in his "Mare Liberum" against the exclusive claim of Portugal to the possession of oriental commerce, "jure gentium quibusvis ad quosvis liberam esse navigationem," is now for the most part admitted, and the pathways of commerce can no longer be obstructed.2

§ 61.

3. The straits which have figured most largely in international history are those leading into the Baltic and inland seas. the Black Seas.

Straits and

1 Compare Vattel, i., 23, § 289; Wheaton's Hist., Part I., § 18; Wheaton's Elements, ii., 4, § 9; Heffter, § 73. See also § 85.

2 Compare what the Lord Chief Justice of England says of these claims in his decision in the case of the Franconia,-that "the claim to such sovereignty, at all times unfounded, has long since been abandoned" by England.