Nations are at liberty to use their own resources in such manner, and to apply them to such purposes as they may deem best, provided they do not violate the perfect rights of other nations, nor endanger their safety, nor infringe the indispensable duties of humanity. They may contract alliances with particular nations, and grant or withhold particular privileges, in their discretion. By positive engagements of this kind, a new class of rights and duties is created, which forms the conventional law of nations, and constitutes the most diffusive, and, generally, the most important branch of public jurisprudence. And it is well to be understood, at a period when alterations in the constitutions of governments, and revolutions in states, are familiar, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers, or with creditors, weakened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government. The body politic is still the same, though it may have a different organ of communication. (ƒ) So, if a state should be divided in respect

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to territory, its rights and obligations are not impaired; and 26 if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common. (a)

2. Jurisdiction over Adjoining Seas. — The extent of jurisdiction over the adjoining seas is often a question of difficulty and of du

independence of other countries, the United States have never taken the question of right between the contending parties into consideration. They have deemed it a dictate of duty and policy to decide upon the question as one of fact merely. It belongs to the legislative or executive power (according to the character of the government), to recognize the independence of a people in revolt from their foreign sovereign; and until such acknowledgment be made, courts of justice are bound to consider the ancient state of things as remaining unaltered. City of Berne v. Bank of England, 9 Vesey, 347; The Manilla, 1 Edw. Adm. 1; Yrisarri v. Clement, 3 Bing. 432; Thompson v. Powles, 2 Sim. 194; Taylor v. Barclay, ib. 213; Rose v. Himely, 4 Cranch, 241; Hoyt v. Gelston, 13 Johns. 139, 141; United States v. Palmer, 3 Wheaton, 610.

(f) Grotius de Jure, lib. 2, c. 9, sec. 8; Puff. Droit de la Nature et des Gens, par Barbeyrac, ii. liv. 8, c. 12, sec. 2, 3; Burlamaqui, Naţ. and Pol. Law, ii. part 4, c. 9, sec. 16; Rutherforth's Institutes, b. 2, c. 10; Vattel, b. 2, sec. 85; Protocol of the five great powers of Austria, Great Britain, France, Prussia, and Russia, by their plenipotentiaries at London, December, 1830, stated in Wheaton's History of the Law of Nations, New York, 1845, pp. 538–546.

(a) Rutherforth, b. 2, c. 10. [Halleck, ch. 3, §§ 27, 28.]

bious right. As far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. Navigable rivers which flow through a territory, and the sea-coast adjoining it, and the navigable waters included in bays, and between headlands and arms of the sea, belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation, and to the undisturbed use of the neighboring shores. (b) The open sea is not capable of being possessed as private property. The free use of the ocean, for navigation and fishing, is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all natons meet there, in time of peace, on a footing of entire equality and independence. No nation has any right or jurisdiction at sea, except it be over the persons of its own subjects, in its own public and private vessels; and so far territorial jurisdiction may be considered or preserved, for the vessels of a nation are, in many respects, considered as portions of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs. They may be punished for, offences against the municipal laws of the state, committed on board of its public and private vessels at sea, and on board of its public vessels in foreign ports. (c) This jurisdiction is confined to the ship; and no one ship has a right to prohibit the approach of another at sea, or to draw round her a line of territorial jurisdiction, within which no other is at liberty to intrude. Every vessel, in time of peace, has a right to consult its own safety and convenience, and to pursue * 27 its own course and business, without being disturbed, when it does not violate the rights of others. (a) As to narrow seas and waters approaching the land, there have been many and sharp controversies among the European nations, concerning the claim for exclusive dominion. The questions arising on this claim are not very clearly defined and settled, and extravagant pretensions are occasionally put forward. The subject abounds in curious and interesting discussions, and, fortunately for the

(b) Grotius, b. 2, c. 2, sec. 12; c. 3, sec. 7; Puff. b. 3, c. 3, sec. 4; b. 4, c. 5, sec. 3 and 8; Vattel, b. 1, c. 22, 23.

(c) Grotius, b. 2, c. 3, sec. 10 and 13; Rutherforth, b. 2, c. 9; Vattel, b. 1, c. 19, sec. 216; Forbes v. Cochrane, 2 Barn. & Cress. 448; Wheaton's Elements of International Law, 3d edit. 157; Edinburgh Review for July, 184', pp. 294, 295.

(a) The Marianna Flora, 11 Wheaton, 38.

peace of mankind, they are, at the present day, matters rather of speculative curiosity than of use.

Grotius published his Mare Liberum against the Portuguese claim to an exclusive trade to the Indies, through the South Atlantic and Indian Oceans, and he shows that the sea was not capable of private dominion. He vindicates the free navigation of the ocean, and the right of commerce between nations, and justly exposes the folly and absurdity of the Portuguese claim. Selden's Mare Clausum was intended to be an answer to the doctrine of Grotius, and he undertook to prove, by the laws, usages, and opinions of all nations, ancient and modern, that the sea was, in point of fact, capable of private dominion; and he poured a flood of learning over the subject. He fell far short of his great rival in the force and beauty of his argument, but he entirely surpassed him in the extent and variety of his citations and researches. Having established the fact, that most nations had conceded that the sea was capable of private dominion, he showed, by numerous documents and records, that the English nation had always asserted and enjoyed a supremacy over the surrounding or narrow seas, and that this claim had been recognized by all the neighboring nations. Sir Matthew Hale considered the title of the king to the narrow seas adjoin

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ing the coast of England, to have been abundantly proved 28 by the treatise of Selden; and Butler speaks of it as a work of profound erudition. (a) Bynkershoek has also written a treatise on the same contested subject, in which he concedes to Selden much of his argument, and admits that the sea was susceptible of dominion, though he denies the title of the English, on the ground of a want of uninterrupted possession. He said there was no instance, at that time, in which the sea was subject to any particular sovereign, where the surrounding territory did not belong to him. (b)

The claim of dominion to close or narrow seas is still the theme of discussion and controversy. Puffendorf (c) admits, that, in a narrow sea, the dominion of it, and the right of fishing therein, may belong to the sovereigns of the adjoining shores. Vattel also (d) lays down the position, that the various uses to which

(a) Harg. Law Tracts, 10; Co. Litt. iii. n. 205.

(b) Dissertatio de Dominio Maris; Bynk. Opera, ii. 124. (c) Droit de la Nat. et des Gens, liv. 4, c. 5, sec. 5-10.

(d) B. 1, c. 23.

the sea contiguous to the coast may be applied, render it justly the subject of property. People fish there, and draw from it shells, pearls, amber, &c.; and who can doubt, he observes, but that the pearl fisheries of Bahram and Ceylon may be lawfully enjoyed as property? Chitty, in his work on commercial law, (e) has entered into an elaborate vindication of the British title to the four seas surrounding the British Islands, and known by the name of the British Seas, and, consequently, to the exclusive right of fishing, and of controlling the navigation of foreigners therein. On the other hand, Sir William Scott, in the case of the Twee Gebroeders, (f) did not treat the claim of territory to contiguous portions of the sea with much indulgence. He said the general inclination of the law was against it; for in the sea, out of the reach of cannon-shot, universal use was presumed, in like manner as a common use in rivers flowing through conterminous states was presumed; and yet, in both cases, *there might, by legal possibility, exist a peculiar property, *29 excluding the universal or the common use. The claim of Russia to sovereignty over the Pacific Ocean north of the 51st degree of latitude as a close sea, was considered by our government in 1822, to be against the rights of other nations. (a) It is difficult to draw any precise or determinate conclusion, amidst the variety of opinions, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends. (b) All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league; and the Congress of the United States have recognized this limitation, by authorizing the District Courts to

(e) Vol. i. 88-102.

(f) 3 Rob. Adm. 336.

(a) Mr. Adams's Letter to the Russian Minister, March 30th, 1822.

(b) Azuni on the Maritime Law of Europe, vol. i. p. 206.

take cognizance of all captures made within a marine league of the American shores. (c) The executive authority of this country, in 1793, considered the whole of Delaware Bay to be within our territorial jurisdiction; and it rested its claims upon those authorities which admit that gulfs, channels, and arms of the sea, belong to the people with whose lands they are encompassed. It was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon-shot. (d)

*30

* Considering 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 the waters on our coasts, though included within lines stretching from quite distant headlands, as, 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. It is certain that our government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the use of the waters of our coast, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes. 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; (a) 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

(c) Bynk. Q. Pub. J. c. 8; Vattel, b. 1, c. 23, sec. 289; Act of Congress, June 5th, 1794, c. 50; The King v. Forty-nine Casks of Brandy, 3 Hagg. Adm. 257. By the convention at London of the 13th July, 1841, between Great Britain, France, Austria, Prussia, and Russia, and the Ottoman Porte, it was declared and agreed to be an established principle of public law, that no ships of war of foreign powers should enter into the Straits of the Dardanelles and of the Bosphorus, thereby placing the territorial jurisdiction of the Sultan over the interior waters of his empire, under the protection of the written public law of Europe. Wheaton's History of the Law of Nations, New York, 1845, p. 584.

(d) Opinion of the Attorney-General concerning the seizure of the ship Grange, dated 14th of May, 1798, and the Letter of the Secretary of the State to the French Minister, of 15th of May, 1793.

(a) Mr. Jefferson's Letter to M. Genet, November 8th, 1793.