or no Catholic states would now admit. (2.) The claim on the ground of discovery. This was both exceedingly vague,—for how much extent of coast or breadth of interior went with the discovery and was good only against those who acknowl edged such right of discovery, but not against the natives. Of the natives, however, very little account was made. Being heathen, they were not, in the age succeeding the discovery of America, regarded as having rights, but might be subdued and stript of sovereignty over their country without compunction. And yet when the right to territory in the new world was in dispute, a title derived from them, it might be, to soil far beyond their haunts, would perhaps be pleaded against prior occupation. The English colonies, however, which settled in this country, took, to a considerable extent, the more just course of paying for the soil on which they established themselves, and the United States have acted steadily on the principle of extinguishing the Indian title by treaty and the payment of a price.

$54.

1. The territory of a state includes all that portion of terra firma which lies within the boundaries of the What is terristate, as well as the waters, that is, the interior tory? seas, lakes and rivers wholly contained within the same lines. Thus the sea of Azof, the Volga, Lake Michigan, the Ohio, and the Sea of Marmora are exclusively in the territory respectively of Russia, the United States, and Turkey. It may happen that the boundaries of a state are not continuous, or that one part of it is separated from another, as the Rhine-provinces of Prussia are cut off by Hesse, etc., from the rest of the kingdom. Or it may happen that one sovereignty, or a portion of it, is included within the limits of another. This is the case more or less in Germany, and was formerly true of Avignon and the Venaissin, which were Papal territory enclosed (enclaves hence called) in France.

2. The mouths of rivers, bays, and estuaries, furnishing access to the land.

3. The coast-sea to the distance of a marine league. This is a regulation dictated by the necessities of self-protection, as is expressed in the maxim of Bynkershoek, "terræ potestas finitur, ubi finitur armorum vis." For the police of commerce the distance is extended to four leagues, that is, according to the usage prevailing in Great Britain and the United States, foreign goods cannot be transshipped within that distance without the payment of duties. The extent of coast-sea included within national territory has been variously defined. Bynkershoek, and others after him, limit it by the reach of cannon shot; "quousque tormenta exploduntur." (De domin. mar. cap. 2, from which place the maxim above cited is taken.) Rayneval limits it by the horizon, a very vague and absurd suggestion; Valin, by the depth of the sea: territory should reach out (he would propose) to where there is no bottom. Modern writers, whether limiting it by a marine league, or by cannon shot, agree substantially in making it an incident to territorial sovereignty on the land. Comp. Ortolan, Diplom. de la mer. Vol. I, chap. 8. As the range of cannon is increasing, and their aim becoming more perfect, it might be thought that the sea line of territory ought to widen. But the point is not likely to become one of any great importance.

4. Vessels belonging to the citizens of the nation on the high seas, and public vessels, wherever found, have some of the attributes of territory.

In regard, however, to the territorial character of vessels it is necessary to be more definite, for if they have this property in some respects but not in all, only false and illogical deductions can be drawn from an unqualified statement. Is it true, then, that they are identical in their properties with territory? If a ship is confiscated on account of piracy or of violation of custom-house laws in a foreign port, or is there attached by the owner's creditor and becomes his property, we never think that territory has been taken away. For a crime committed in port a vessel 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.

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fishing there.

The high sea is free and open to all nations. It cannot be the property or the empire of a particular state. Freedom of the It cannot become property, for it cannot be pos- high seas and of sessed, or have any personal action exercised upon it, which must prevent a similar action of another. It cannot be mixed up with labor, 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 socalled 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 17th century, claimed property in the seas surrounding Great Britain, as far as to the coasts of the neighboring countries, and in the 18th 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 consti tuted.* Russia, finally, at a more recent date, based an ex clusive claim to the Pacific, north of the 51st degree, upoi. 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.

Fishery question
between the U.
States and Great
Britain.

Thus the right to fish on the banks of Newfoundland is open to all, but there is no right to dry and cure fish, even on the unsettled coasts belonging to any sovereign, without permission of the same. And here a brief 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 the right of fishing on the Banks of New- Treaty of 1783. foundland 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, harbors 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.

1814.

At and after the treaty of Ghent, which contained no provisions respecting the fisheries, it was contended Treaty of Ghent, by American negotiators, but without good reason, that 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. By a convention of 1818 the priv- Convention of ilege was again, and in perpetuity, opened to cit- 1818.

* Comp. Ortolan, u. s., Chap. 7.