may be chased into the high seas and there arrested, without a suspicion that territorial rights have been violated, while to chase a criminal across the borders and seize him on foreign soil is a gross offence against sovereignty. Again, a private vessel, when it arrives in a foreign port, ceases to be regarded as territory, unless treaty provides otherwise, and then becomes merely the property of aliens. If injury is done to it, it is an injury which indirectly affects the sovereign of the alien, whereas injuries to territory, properly so called, affect the public power in an immediate manner. It is unsafe, then, to argue on the assumption that ships are altogether territory, as will appear, perhaps, when we come to consider the laws of maritime warfare. On the other hand, private ships have certain qualities resembling those of territory (1.) As against their crews on the high seas; for the territorial or municipal law accompanies them as long as they are beyond the reach of other law, or until they come within the bounds of some other jurisdiction. (2.) As against foreigners, who are excluded on the high seas from any act of sovereignty over them, just as if they were a part of the soil of their country. Public vessels stand on higher ground: they are not only public property, built or bought by the government, but they are, as it were, floating barracks, a part of the public organism, and represent the national dignity, and on these accounts, even in foreign ports, are exempt from the local jurisdiction. In both cases, however, it is on account of the crew, rather than of the ship itself, that they have any territorial quality. Take the crew away, let the abandoned hulk be met at sea: it now becomes property, and nothing more.

§ 55.

The high sea is free and open to all nations. It cannot be the property or the empire of a particular state. It Freedom of the cannot become property, for it cannot be possessed, high seas and of or have any personal action exercised upon it, which fishing there. must prevent a similar action of another. It cannot be mixed up with labour, or enclosed, or, like wild land, be waiting for any such future action. It can as little become the empire of any particular state. Otherwise one state might exclude 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 favour 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 licence, 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 neighbouring 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 monopolising 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 neighouring 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.

between the

Thus the right to fish on the banks of Newfoundland is open Fishery question to all, but there is no right to dry and cure fish, even United States & on the unsettled coasts belonging to any sovereign, without permission of the same. And here a brief

Great Britain.

1 Compare Ortolan, u. s. chap. 7.

sketch of the fishery question between the United States and Great Britain may not be out of place.

By the treaty of 1783, which admitted the independence of the United States, Great Britain conceded to them Treaty of 1783. the right of fishing on the banks of Newfoundland 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 right of drying and curing fish in any of the unsettled bays, harbours and creeks of Nova Scotia, the Magdalen islands and Labrador, so long as they should continue unsettled; but not the right 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 Treaty of Ghent, American negotiators, but without good reason, that 1814. the article of the peace of 1783, relating to the fisheries, was in its nature perpetual, and thus not annulled by the war of 1812. A convention in 1818 granted the perpetual privilege Convention of to citizens of the United States to take, dry, and cure 1818. fish on the coasts, while unsettled, of Labrador, east of Mount 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 for ever any liberty to take or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of his Britannic Majesty's dominions in America not included within the above-mentioned limits. Finally, by 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, harbours, 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 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.2 This treaty, terminable in or after ten years, was terminated by the United States in 1866.

Treaty of 1854.

1 See Wheaton's El. ii. 4, § 8, and iii. 2, § 9. 2 Murhard, Nouv. Rec. xvi. 1, 498.

§ 56.

certain waters.

The claims of exclusive control over certain portions of water Claims of exclu- are, in a great part, either doubtful or to be rejected. sive control over 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 Bays territory the promontories embracing them belong. Thus the Delaware Bay was declared in 1793 to belong exclusively to the United States. When, however, the and gulfs. 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 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 headlandsas, for instance, from Cape 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 has long claimed supremacy in the narrow seas adjoining that island. But the claim, although chiefly satisfied by paying certain honours to the British flag, has not been uniformly acquiesced in, and may be said to be falling 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.

§ 57.

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

land seas.

A. The claims of Denmark to exclusive control over Elsineur Sound and the Belts are now matters of history, The Danish but a brief sketch of the past usage may not be with- straits. out its use. Danish jurists rested these claims rather on immemorial prescription than on the cost of providing for the security of commerce by lighthouses, or by removing obstacles to navigation. In 1319 a charter regulated the duties to be paid by the Dutch. In 1544 the Emperor Charles V. stipulated the payment of the Sound dues by the merchants of the Low Countries. Subsequently, Denmark raised the tariff, which brought on a war with the Dutch and other nations. In 1645 Sweden obtained exemption from tolls, and, at the same time, by the treaty of Christianople, the amount of duties to be paid by the Dutch was again adjusted. France and England, in the seventeenth century, agreed to pay the same tariff with the Dutch.

Things continued thus for two centuries. In 1840, attention having been drawn in England to the Sound dues by the delays and vexations of commerce, negotiations were had which removed part of the complaints.

In 1826 a commercial convention for ten years with Denmark placed the United States on the footing of the most favoured nations, which caused a reduction of the duties we had been paying hitherto. In 1843 the justice of the demand began to be more especially drawn into question, and the Secretary of State expressed himself against it. Amid the difficulties of Denmark, in 1848, the chargé from the United States proposed, as a commutation for the claim, the sum of two hundred and fifty thousand dollars. Five years afterwards the diplomatic agent of the United States was instructed by Mr. Marcy to take the ground with Denmark, that his country could recognise no immemorial usage not coinciding with natural justice and international law. In the 1 Compare Vattel, i. 23, § 289; Wheaton's Hist. part i. § 18; Wheaton's Elements, ii. 4, § 9; Heffter, § 73. See also § 86.