(Blundell v. Catterall.) (Best.) In these regions the land is subordinate, but not entirely subject, to the water; and consequently, when these laws and rights are in conflict, the aquatic laws and rights are paramount to those of the land.

41. In private lands, the region of fountains, surfacewaters, and springs which do not flow in definite channels, the water is subject and subordinate to the proprietary rights of the land, and to the terrene law.

42. It may be convenient to describe that branch of the aquatic law which governs the sea, and prevails throughout the navigable area, as "the marine law," and the rights springing from it as "marine rights."

43. The mixed or combined action of the aquatic and terrene laws on the shore may be denominated the littoral law; and their co-ordinate operation in the stream may be designated the riparian or fluvial law. The rights derived from the former may be called littoral, and those arising from the latter riparian rights.

44. In all nations the natural laws are to some extent encroached upon by positive laws, or judicial decisions; conferring advantages on individuals in derogation more or less of the public right, and the enjoyment of it by the public at large.

45. WATER RIGHTS.-To ascertain the extent of the natural rights in the water, we must ascertain to what purposes it is applicable.

1st. Throughout the surface of its wide expanse and all its indentations, the sea is applicable to the passage of vessels, so far as nature has prepared the way; over this nature has given the right of passage, of navigation, and constituted it the navigable area, the great highway; and as he has for his vessel, so every man has for himself the right to swim, as a mode of passing, or to save himself, or to save others, or for his recreation, or his health.

2nd. All the inhabitants of the waters, and all the wild birds that hover over them, are given to those who can seize them for their moderate use.

3rd. The contents of the deep and of the shallower water down to the soil, the pure fresh element (drink for man and beast), the salts, the iodine, and other mineral components, the water-plants, and the weeds, are given for their respective purposes.

4th. The fertilizing power.

5th. The mechanical force.

6th. The use of the subjacent land to trade or travel on it as a natural highway.

46. DISTRIBUTION OF RIGHTS.-The rights are to be apportioned among the countries and their inhabitants, so that all may enjoy what is conveniently susceptible of common enjoyment; and that each country, as between the nations, and each person, as among the people of each nation, may have a preferable enjoyment of what is necessary for their peculiar want.

47. THE SEA and the navigable rivers, "the navigable area," constitute the surface for distribution among the nations. All nations are entitled to enjoy it so far as they may consistently with the security and especial exigencies of each; so that whatever is not appropriated to these necessities, in space or in specie, remains common to all.

48. MARINE TERRITORY.-There is a kind of possession of the borders of the sea, a portion of the water around the shore of every country, which the nations mutually admit and regard as a kind of marine territory, as part of the national waters of the country which it surrounds. The nations concede to each other an almost exclusive right to that space along the coast which they can defend by their cannon from the shore, estimated at, with some exceptions, a marine league, three geographical miles, from the coast-line; which, except in crossing indentations, follows the marine line, the water's edge, or the shore. The seaward boundary of this area we shall call the presidial line, and shall have hereafter to more particularly define.

49. This space from the shore to the presidial line is the

marine territory of the state, subject to its sovereignty and laws, as its streets and its highways. Its produce is dedicated to its exigencies. It is free to the peaceful merchant as the open sea; but its waves are not to be invaded by any unauthorized ship of war. No battle is to be done on its surface between belligerents who are in amity with that country; within its sanctuary they must observe the peace.

50. But the seas which divide some countries and frontier rivers are not of sufficient breadth to allow so much space to each from its shore. In such cases, the partition of the insufficient interval is indicated by a medium-line, which we call the mean-line, passing between them at an equal distance between the opposite shores.

51. The coast-line is, with reference to the presidial line, imaginary, as the presidial line always is. In general, the coast-line follows the shore of the sea, but it crosses each inlet. In the convention between France and England, of the 2nd of August, 1839, as to fishing, which was ratified and enforced by the 6 & 7 Vict. c. 79, the coast-line is fixed at low-water mark, except that in bays, the mouths of which do not exceed ten miles in width, it assumes a straight line from headland to headland, and the presidial line is measured and drawn at the distance of three geographical miles from the coast-line. In America (Angel, 2, 7; Wheaton, 234-5) a nearly similar rule is observed, and indeed, it may be regarded as generally accepted that bays or channels within the horns of promontories and headlands, however large, are subject to the sovereign of the neighbouring land.

52. OPEN SEA.-The rest of the sea is the ocean, the high or open sea; it is common to all nations, and the people of all nations; every vessel which traverses it is part of the country to which she belongs; all aboard her are subject to its laws: with some few conceded exceptions. The foreigner who voluntarily treads her deck must observe those laws in the same manner as if he entered a house within

the terrene dominions of her state. This is the result of necessity, for if not subject to, and protected by, the law of her own country, she would not be subject to, and she would not be protected by, the law of any other; she would be sent loose upon the ocean, released and excluded from the obligation and support of every law.

53. SOVEREIGNTY OF THE SEA.-Nations have from time to time affected and usurped a sovereignty over the sea. The titles of Chinese and other Oriental princes often comprised universal dominion, but more frequently through ignorance of the existence of competing power, than on any definite notion of authority beyond the national domain. The ancient empire of Egypt rarely attempted maritime enterprise; the Assyrian was in the heart of the land; and although the Persian demanded earth and water as the emblems of submission, he never attained a decisive superiority on the sea.

54. The pretensions to sovereignty of the little Mediterranean states, and the revival of such pretensions by Venice, Spain, Portugal, and England, will be cursorily noticed in another place.

55. NATIONAL WATERS are all the waters within the presidial line along the coasts of the nation, including its colonies, islands, and other possessions, such as fishing-banks, whether acquired by conquest or reddition, or appropriated by treaty between the nations interested in disputing the right.

56. Some of these waters, which form communications with the territories of other states, are for the purposes of navigation, subject to rights, to be hereafter explained, in derogation of the absolute sovereignty of the nation within whose territorial limits they lie.

57. ENJOYMENT OF.-The law which regulates the enjoyment of the national waters-is that the bounties of nature should be neither wasted nor misemployed; that they should be enjoyed as far as practicable in such manner as will conduce most to the benefit of the society, and confer advantage

on its allies. What is susceptible of enjoyment by all, should be dedicated to the use of all; what is susceptible of enjoyment by many or several, should be applied to the use of as many as can conveniently enjoy; and what is conveniently susceptible of enjoyment only in severalty, should be enjoyed only by those who have the power of acquiring it peaceably, and of improving it when acquired.

58. The national waters may, for the purpose of enjoyment, be regarded as divided or distributed into three districts:

1st. Public waters.—The national navigable area from the presidial line to that of the shore, and the highest point to which the navigation up the rivers extends.

2nd. Riparian waters.—The portions of the rivers and the streams which are not navigable from the sea, or such great lakes as may be regarded as parts of the sea.

3rd. Proprietary waters.-The rain, the surface-waters, the fountains, and the springs which have not acquired the character of streams.

59. THE NATIONAL NAVIGABLE AREA (the public waters) is capable of enjoyment by all the subjects, and therefore they have a common right to enjoy it. This may also, under due restrictions for the security of the nation and its inhabitants, be enjoyed by the peoples of all friendly states; and therefore, subject to those restrictions, friendly nations have a subordinate or passive right to enjoy it. On the other hand, those who reside in the immediate neighbourhood of particular portions of that area may have a preferable right of enjoyment for such purposes as their subsistence, and the satisfaction of their immediate wants.

60. THE RIPARIAN WATERS more especially belong to all who have a right to approach them. The riparian proprietor can enjoy the stream through the entire length of his bank; the villager, where it flows through the land in which he has a common right; the traveller, only where it is approachable on the public road. Even these rights are subject to the